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Rajneesh Aggarwal Vs. Amit J. Bhalla | Act, and therefore, the conclusion of the High Court is unassailable. Mr. Sanghi further urged that the conclusion of the High Court to the effect that supply of watches made by the respondent to the company M/s Bhalla Techtran Industries Ltd. and cheques involved in the case were also issued by the said company through its Director that is the petitioner and in view of such admitted facts, the petitioner cannot be proceeded against for the offence under Section 138 of the Act in his individual capacity, is the only conclusion permissible under the facts and circumstances of the case and, therefore, the order quashing the criminal proceedings should not be interfered with. According to Mr. Sanghi, the complainant has been prosecuting the accused Amit Bhalla in his individual capacity, though categorically in the complaint petition, it has been stated that the cheques had been issued by M/s Bhalla Techtran Industries Ltd., through Mr. Amit J. Bhalla as a Director and consequently, so far as the company is concerned, who is the real drawer of the cheque, no notice can be said to have been issued, and, therefore, criminal proceeding has rightly been quashed. Mr. Sanghi urged that the respondent not being the drawer of the cheque, could not have been prosecuted in his individual capacity inasmuch as there is no vicarious liability of a Director in the criminal matters. Mr. Sanghi also contended that the ultimate decision of quashing of criminal proceeding can be supported on the further ground that the complaint is purely one of civil nature and the complainant has abused the process of law by initiating criminal prosecution as an armtwisting device and in this view of the matter, the case does not warrant interference by this Court in exercise of jurisdiction under Article 136 of the Constitution. Mr. Sanghi also urged that in course of the proceedings, the entire amount involved in the three cheques having been deposited, the criminal proceedings should be allowed to be continued and the order, quashing the criminal proceedings should not be interfered with.6. Having regard to the contentions raised by the counsel for the parties, two questions really arise for our consideration :(1) Was the High Court justified in coming to the conclusion that the drawer has not been duly served with notice for payment?(2) Whether deposit of the entire amount covered by three cheques, while the matter is pending in this Court, would make any difference? So far as the first question is concerned, it is no doubt true that all the three requirements under clauses (a),(b) and (c) must be complied with before the offence under Section 138 of the Negotiable Instruments Act, can be said to have been committed and Section 141 indicates as to who would be the persons, liable in the event the offence is committed by a company. The High Court itself on facts, has recorded the findings that conditions (a) and (b) under Section 138 having been duly complied with and, therefore, the only question is whether the conclusion of the High Court that condition (c) has not been complied with, can be said to be in accordance with law. Mere dishonour of a cheque would not raise to a cause of action unless the payee makes a demand in writing to the drawer of the cheque for the payment and the drawer fails to make the payment of the said amount of money to the payee. The cheques had been issued by M/s Bhalla Techtran Industries Limited, through its Director Shri Amit Bhalla. The appellant had issued notice to said Shri Amit J. Bhalla, Director of M/s Bhalla Techtran Industries Limited. Notwithstanding the service of the notice, the amount in question was not paid. The object of issuing notice indicating the factum of dishonour of the cheques is to give an opportunity to the drawer to make payment within 15 days, so that it will not be necessary for the payee to proceed against in any criminal action, even though the bank dishonoured the cheques. It is Amit Bhalla, who had signed the cheques as the Director of M/s Bhalla Techtran Industries Ltd. When the notice was issued to said Shri Amit Bhalla, Director of M/s Bhalla Techtran Industries Ltd., it was incumbent upon Shri Bhalla to see that the payments are made within the stipulated period of 15 days. It is not disputed that Shri Bhalla has not signed the cheques, nor is it disputed that Shri Bhalla was not the Director of the company. Bearing in mind the object of issuance of such notice, it must be held that the notices cannot be construed in a narrow technical way without examining the substance of the matter. We really fail to understand as to why the judgment of this Court in Bilakchand Gyanchand Co., 1999(5) SC 693, will have no application. In that case (sic) Court and it is in that connection, to prove the bona fide, the respondent deposited the amount covered under all the three cheques in the Court, but the complainants counsel insisted that if there is going to be a settlement, then all the pending cases between the parties should be settled, which was, however not agreed to by the respondent and, therefore, the matter could not be settled. So are as the criminal complaint is concerned, once the offence is committed, any payment made subsequent thereto will not absolve the accused of the liability of criminal offence, though in the matter of awarding of sentence, it may have some effect on the Court trying the offence. But by no stretch of imagination, a criminal proceeding could be quashed on account of deposit of money in the Court or that an order of quashing of criminal proceeding, which is otherwise unsustainable in law, could be sustained because of the deposit of money in this Court. In this view of the matter, the so-called deposit of money by the respondent in this Court is of no consequence. | 1[ds]So far as the first question is concerned, it is no doubt true that all the three requirements under clauses (a),(b) and (c) must be complied with before the offence under Section 138 of the Negotiable Instruments Act, can be said to have been committed and Section 141 indicates as to who would be the persons, liable in the event the offence is committed by a company. The High Court itself on facts, has recorded the findings that conditions (a) and (b) under Section 138 having been duly complied with and, therefore, the only question is whether the conclusion of the High Court that condition (c) has not been complied with, can be said to be in accordance with law. Mere dishonour of a cheque would not raise to a cause of action unless the payee makes a demand in writing to the drawer of the cheque for the payment and the drawer fails to make the payment of the said amount of money to the payee. The cheques had been issued by M/s Bhalla Techtran Industries Limited, through its Director Shri Amit Bhalla. The appellant had issued notice to said Shri Amit J. Bhalla, Director of M/s Bhalla Techtran Industries Limited. Notwithstanding the service of the notice, the amount in question was not paid. The object of issuing notice indicating the factum of dishonour of the cheques is to give an opportunity to the drawer to make payment within 15 days, so that it will not be necessary for the payee to proceed against in any criminal action, even though the bank dishonoured the cheques. It is Amit Bhalla, who had signed the cheques as the Director of M/s Bhalla Techtran Industries Ltd. When the notice was issued to said Shri Amit Bhalla, Director of M/s Bhalla Techtran Industries Ltd., it was incumbent upon Shri Bhalla to see that the payments are made within the stipulated period of 15 days. It is not disputed that Shri Bhalla has not signed the cheques, nor is it disputed that Shri Bhalla was not the Director of the company. Bearing in mind the object of issuance of such notice, it must be held that the notices cannot be construed in a narrow technical way without examining the substance of the matter. We really fail to understand as to why the judgment of this Court in Bilakchand Gyanchand Co., 1999(5) SC 693, will have no application. In that case (sic) Court and it is in that connection, to prove the bona fide, the respondent deposited the amount covered under all the three cheques in the Court, but the complainants counsel insisted that if there is going to be a settlement, then all the pending cases between the parties should be settled, which was, however not agreed to by the respondent and, therefore, the matter could not be settled. So are as the criminal complaint is concerned, once the offence is committed, any payment made subsequent thereto will not absolve the accused of the liability of criminal offence, though in the matter of awarding of sentence, it may have some effect on the Court trying the offence. But by no stretch of imagination, a criminal proceeding could be quashed on account of deposit of money in the Court or that an order of quashing of criminal proceeding, which is otherwise unsustainable in law, could be sustained because of the deposit of money in this Court. In this view of the matter, thedeposit of money by the respondent in this Court is of no consequence. | 1 | 2,422 | 665 | ### 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:
Act, and therefore, the conclusion of the High Court is unassailable. Mr. Sanghi further urged that the conclusion of the High Court to the effect that supply of watches made by the respondent to the company M/s Bhalla Techtran Industries Ltd. and cheques involved in the case were also issued by the said company through its Director that is the petitioner and in view of such admitted facts, the petitioner cannot be proceeded against for the offence under Section 138 of the Act in his individual capacity, is the only conclusion permissible under the facts and circumstances of the case and, therefore, the order quashing the criminal proceedings should not be interfered with. According to Mr. Sanghi, the complainant has been prosecuting the accused Amit Bhalla in his individual capacity, though categorically in the complaint petition, it has been stated that the cheques had been issued by M/s Bhalla Techtran Industries Ltd., through Mr. Amit J. Bhalla as a Director and consequently, so far as the company is concerned, who is the real drawer of the cheque, no notice can be said to have been issued, and, therefore, criminal proceeding has rightly been quashed. Mr. Sanghi urged that the respondent not being the drawer of the cheque, could not have been prosecuted in his individual capacity inasmuch as there is no vicarious liability of a Director in the criminal matters. Mr. Sanghi also contended that the ultimate decision of quashing of criminal proceeding can be supported on the further ground that the complaint is purely one of civil nature and the complainant has abused the process of law by initiating criminal prosecution as an armtwisting device and in this view of the matter, the case does not warrant interference by this Court in exercise of jurisdiction under Article 136 of the Constitution. Mr. Sanghi also urged that in course of the proceedings, the entire amount involved in the three cheques having been deposited, the criminal proceedings should be allowed to be continued and the order, quashing the criminal proceedings should not be interfered with.6. Having regard to the contentions raised by the counsel for the parties, two questions really arise for our consideration :(1) Was the High Court justified in coming to the conclusion that the drawer has not been duly served with notice for payment?(2) Whether deposit of the entire amount covered by three cheques, while the matter is pending in this Court, would make any difference? So far as the first question is concerned, it is no doubt true that all the three requirements under clauses (a),(b) and (c) must be complied with before the offence under Section 138 of the Negotiable Instruments Act, can be said to have been committed and Section 141 indicates as to who would be the persons, liable in the event the offence is committed by a company. The High Court itself on facts, has recorded the findings that conditions (a) and (b) under Section 138 having been duly complied with and, therefore, the only question is whether the conclusion of the High Court that condition (c) has not been complied with, can be said to be in accordance with law. Mere dishonour of a cheque would not raise to a cause of action unless the payee makes a demand in writing to the drawer of the cheque for the payment and the drawer fails to make the payment of the said amount of money to the payee. The cheques had been issued by M/s Bhalla Techtran Industries Limited, through its Director Shri Amit Bhalla. The appellant had issued notice to said Shri Amit J. Bhalla, Director of M/s Bhalla Techtran Industries Limited. Notwithstanding the service of the notice, the amount in question was not paid. The object of issuing notice indicating the factum of dishonour of the cheques is to give an opportunity to the drawer to make payment within 15 days, so that it will not be necessary for the payee to proceed against in any criminal action, even though the bank dishonoured the cheques. It is Amit Bhalla, who had signed the cheques as the Director of M/s Bhalla Techtran Industries Ltd. When the notice was issued to said Shri Amit Bhalla, Director of M/s Bhalla Techtran Industries Ltd., it was incumbent upon Shri Bhalla to see that the payments are made within the stipulated period of 15 days. It is not disputed that Shri Bhalla has not signed the cheques, nor is it disputed that Shri Bhalla was not the Director of the company. Bearing in mind the object of issuance of such notice, it must be held that the notices cannot be construed in a narrow technical way without examining the substance of the matter. We really fail to understand as to why the judgment of this Court in Bilakchand Gyanchand Co., 1999(5) SC 693, will have no application. In that case (sic) Court and it is in that connection, to prove the bona fide, the respondent deposited the amount covered under all the three cheques in the Court, but the complainants counsel insisted that if there is going to be a settlement, then all the pending cases between the parties should be settled, which was, however not agreed to by the respondent and, therefore, the matter could not be settled. So are as the criminal complaint is concerned, once the offence is committed, any payment made subsequent thereto will not absolve the accused of the liability of criminal offence, though in the matter of awarding of sentence, it may have some effect on the Court trying the offence. But by no stretch of imagination, a criminal proceeding could be quashed on account of deposit of money in the Court or that an order of quashing of criminal proceeding, which is otherwise unsustainable in law, could be sustained because of the deposit of money in this Court. In this view of the matter, the so-called deposit of money by the respondent in this Court is of no consequence.
### Response:
1
### Explanation:
So far as the first question is concerned, it is no doubt true that all the three requirements under clauses (a),(b) and (c) must be complied with before the offence under Section 138 of the Negotiable Instruments Act, can be said to have been committed and Section 141 indicates as to who would be the persons, liable in the event the offence is committed by a company. The High Court itself on facts, has recorded the findings that conditions (a) and (b) under Section 138 having been duly complied with and, therefore, the only question is whether the conclusion of the High Court that condition (c) has not been complied with, can be said to be in accordance with law. Mere dishonour of a cheque would not raise to a cause of action unless the payee makes a demand in writing to the drawer of the cheque for the payment and the drawer fails to make the payment of the said amount of money to the payee. The cheques had been issued by M/s Bhalla Techtran Industries Limited, through its Director Shri Amit Bhalla. The appellant had issued notice to said Shri Amit J. Bhalla, Director of M/s Bhalla Techtran Industries Limited. Notwithstanding the service of the notice, the amount in question was not paid. The object of issuing notice indicating the factum of dishonour of the cheques is to give an opportunity to the drawer to make payment within 15 days, so that it will not be necessary for the payee to proceed against in any criminal action, even though the bank dishonoured the cheques. It is Amit Bhalla, who had signed the cheques as the Director of M/s Bhalla Techtran Industries Ltd. When the notice was issued to said Shri Amit Bhalla, Director of M/s Bhalla Techtran Industries Ltd., it was incumbent upon Shri Bhalla to see that the payments are made within the stipulated period of 15 days. It is not disputed that Shri Bhalla has not signed the cheques, nor is it disputed that Shri Bhalla was not the Director of the company. Bearing in mind the object of issuance of such notice, it must be held that the notices cannot be construed in a narrow technical way without examining the substance of the matter. We really fail to understand as to why the judgment of this Court in Bilakchand Gyanchand Co., 1999(5) SC 693, will have no application. In that case (sic) Court and it is in that connection, to prove the bona fide, the respondent deposited the amount covered under all the three cheques in the Court, but the complainants counsel insisted that if there is going to be a settlement, then all the pending cases between the parties should be settled, which was, however not agreed to by the respondent and, therefore, the matter could not be settled. So are as the criminal complaint is concerned, once the offence is committed, any payment made subsequent thereto will not absolve the accused of the liability of criminal offence, though in the matter of awarding of sentence, it may have some effect on the Court trying the offence. But by no stretch of imagination, a criminal proceeding could be quashed on account of deposit of money in the Court or that an order of quashing of criminal proceeding, which is otherwise unsustainable in law, could be sustained because of the deposit of money in this Court. In this view of the matter, thedeposit of money by the respondent in this Court is of no consequence.
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Alister Anthony Pareira Vs. State of Maharashtra | which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should “respond to the societys cry for justice against the criminal”.” 76. In the case of Shailesh Jasvantbhai11, the Court referred to earlier decisions in Dhananjoy Chatterjee alias Dhana v. State of W.B. ((1994) 2 SCC 220 ), Ravji alias Ram Chandra v. State of Rajasthan ((1996) 2 SCC 175 ), State of M.P. v. Ghanshyam Singh ((2003) 8 SCC 13 ), Surjit Singh v. Nahara Ram & Anr. ((2004) 6 SCC 513 ), State of M.P. v. Munna Choubey ((2005) 2 SCC 710 ). In Ravji19, this Court stated that the court must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should “respond to the societys cry for justice against the criminal”. 77. In Manish Jalan12, this Court considered Section 357 of the Code in a case where the accused was found guilty of the offences punishable under Sections 279 and 304A IPC. After noticing Section 357, the Court considered earlier decision of this Court in Hari Singh v. Sukhbir Singh & Ors. ((1988) 4 SCC 551 ) wherein it was observed, `it may be noted that this power of courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system”. Then the court noticed another decision of this Court in Sarwan Singh & Ors. v. State of Punjab ((1978) 4 SCC 111 ) in which it was observed that in awarding compensation, it was necessary for the court to decide if the case was a fit one in which compensation deserved to be granted. Then the court considered another decision of this Court in Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. & Anr. ((2007) 6 SCC 528 ) wherein the court held at Page 545 of the Report as under: “38. The purpose of imposition of fine and/or grant of compensation to a great extent must be considered having the relevant factors therefor in mind. It may be compensating the person in one way or the other. The amount of compensation sought to be imposed, thus, must be reasonable and not arbitrary. Before issuing a direction to pay compensation, the capacity of the accused to pay the same must be judged. A fortiori, an enquiry in this behalf even in a summary way, may be necessary. Some reasons, which may not be very elaborate, may also have to be assigned; the purpose being that whereas the power to impose fine is limited and direction to pay compensation can be made for one or the other factors enumerated out of the same; but sub-section (3) of Section 357 does not impose any such limitation and thus, power thereunder should be exercised only in appropriate cases. Such a jurisdiction cannot be exercised at the whims and caprice of a Judge.” Having regard to the above legal position and the fact that the mother of the victim had no grievance against the appellant therein and she prayed for some compensation, this Court held that a lenient view could be taken in the matter and the sentence of imprisonment could be reduced and, accordingly, reduced the sentence to the period already undergone and directed the appellant to pay compensation of Rs. One lakh to the mother of the victim. 78. World Health Organisation in the Global Status Report on Road Safety has pointed out that speeding and drunk driving are the major contributing factors in road accidents. According to National Crime Records Bureau (NCRB), the total number of deaths due to road accidents in India every year is now over 1,35,000. NCRB Report also states drunken driving as a major factor for road accidents. Our country has a dubious distinction of registering maximum number of deaths in road accidents. It is high time that law makers revisit the sentencing policy reflected in Section 304A IPC. 79. The facts and circumstances of the case which have been proved by the prosecution in bringing home the guilt of the accused under Section 304 Part II IPC undoubtedly show despicable aggravated offence warranting punishment proportionate to the crime. Seven precious human lives were lost by the act of the accused. For an offence like this which has been proved against the appellant, sentence of three years awarded by the High Court is too meagre and not adequate but since no appeal has been preferred by the State, we refrain from considering the matter for enhancement. By letting the appellant away on the sentence already undergone i.e. two months in a case like this, in our view, would be travesty of justice and highly unjust, unfair, improper and disproportionate to the gravity of crime. It is true that the appellant has paid compensation of Rs. 8,50,000/- but no amount of compensation could relieve the family of victims from the constant agony. As a matter of fact, High Court had been quite considerate and lenient in awarding to the appellant sentence of three years for an offence under Section 304 Part II IPC where seven persons were killed.80. We are satisfied that the facts and circumstances of the case do not justify benefit of probation to the appellant for good conduct or for any reduction of sentence. | 0[ds]our opinion there is no impediment in law for an offender being charged for the offence under Section 304 Part II IPC and also under Sections 337 and 338 IPC. The two charges under Section 304 Part II IPC and Section 338 IPC can legally co-exist in a case of single rash or negligent act where a rash or negligent act is done with the knowledge of likelihood of its dangerous consequences.44. By charging the appellant for the offence under Section 304 Part II IPC and Section 338 IPC - which is legally permissible - no prejudice has been caused to him. The appellant was made fully aware of the charges against him and there is no failure of justice. We are, therefore, unable to accept the submission of Mr. U.U. Lalit that by charging the appellant for the offences under Section 304 Part II IPC and Section 338 IPC for a rash or negligent act resulting in injuries to eight persons and at the same time committed with the knowledge resulting in death of seven persons, the appellant has been asked to face legally impermissiblecannot be said that the appellant was not made fully aware of the prosecution evidence that he had driven the car rashly or negligently in a drunken condition. He had full opportunity to say what he wanted to say with regard to the prosecution evidence.We have also carefully considered the evidence let in by prosecution - the substance of which has been referred to above - and we find no justifiable ground to take a view different from that of the High Court. We agree with the conclusions of the High Court and have no hesitation in holding that the evidence and materials on record prove beyond reasonable doubt that the appellant can be attributed with knowledge that his act of driving the vehicle at a high speed in the rash or negligent manner was dangerous enough and he knew that one result would very likely be that people who were asleep on the pavement may be hit, should the vehicle go out of control. There is a presumption that a man knows the natural and likely consequences of his acts. Moreover, an act does not become involuntary act simply because its consequences were unforeseen. The cases of negligence or of rashness or dangerous driving do not eliminate the act being voluntary. In the present case, the essential ingredients of Section 304 Part II IPC have been successfully established by the prosecution against the appellant. The infirmities pointed out by Mr. U.U. Lalit, learned senior counsel for the appellant, which have been noticed above are not substantial and in no way affect the legality of the trial and the conviction of the appellant under Section 304 Part II IPC. We uphold the view of the High Court being consistent with the evidence on record and law.The facts and circumstances of the case which have been proved by the prosecution in bringing home the guilt of the accused under Section 304 Part II IPC undoubtedly show despicable aggravated offence warranting punishment proportionate to the crime. Seven precious human lives were lost by the act of the accused. For an offence like this which has been proved against the appellant, sentence of three years awarded by the High Court is too meagre and not adequate but since no appeal has been preferred by the State, we refrain from considering the matter for enhancement. By letting the appellant away on the sentence already undergone i.e. two months in a case like this, in our view, would be travesty of justice and highly unjust, unfair, improper and disproportionate to the gravity of crime. It is true that the appellant has paid compensation of Rs. 8,50,000/- but no amount of compensation could relieve the family of victims from the constant agony. As a matter of fact, High Court had been quite considerate and lenient in awarding to the appellant sentence of three years for an offence under Section 304 Part II IPC where seven persons were killed.80. We are satisfied that the facts and circumstances of the case do not justify benefit of probation to the appellant for good conduct or for any reduction of | 0 | 13,935 | 746 | ### 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:
which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should “respond to the societys cry for justice against the criminal”.” 76. In the case of Shailesh Jasvantbhai11, the Court referred to earlier decisions in Dhananjoy Chatterjee alias Dhana v. State of W.B. ((1994) 2 SCC 220 ), Ravji alias Ram Chandra v. State of Rajasthan ((1996) 2 SCC 175 ), State of M.P. v. Ghanshyam Singh ((2003) 8 SCC 13 ), Surjit Singh v. Nahara Ram & Anr. ((2004) 6 SCC 513 ), State of M.P. v. Munna Choubey ((2005) 2 SCC 710 ). In Ravji19, this Court stated that the court must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should “respond to the societys cry for justice against the criminal”. 77. In Manish Jalan12, this Court considered Section 357 of the Code in a case where the accused was found guilty of the offences punishable under Sections 279 and 304A IPC. After noticing Section 357, the Court considered earlier decision of this Court in Hari Singh v. Sukhbir Singh & Ors. ((1988) 4 SCC 551 ) wherein it was observed, `it may be noted that this power of courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system”. Then the court noticed another decision of this Court in Sarwan Singh & Ors. v. State of Punjab ((1978) 4 SCC 111 ) in which it was observed that in awarding compensation, it was necessary for the court to decide if the case was a fit one in which compensation deserved to be granted. Then the court considered another decision of this Court in Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. & Anr. ((2007) 6 SCC 528 ) wherein the court held at Page 545 of the Report as under: “38. The purpose of imposition of fine and/or grant of compensation to a great extent must be considered having the relevant factors therefor in mind. It may be compensating the person in one way or the other. The amount of compensation sought to be imposed, thus, must be reasonable and not arbitrary. Before issuing a direction to pay compensation, the capacity of the accused to pay the same must be judged. A fortiori, an enquiry in this behalf even in a summary way, may be necessary. Some reasons, which may not be very elaborate, may also have to be assigned; the purpose being that whereas the power to impose fine is limited and direction to pay compensation can be made for one or the other factors enumerated out of the same; but sub-section (3) of Section 357 does not impose any such limitation and thus, power thereunder should be exercised only in appropriate cases. Such a jurisdiction cannot be exercised at the whims and caprice of a Judge.” Having regard to the above legal position and the fact that the mother of the victim had no grievance against the appellant therein and she prayed for some compensation, this Court held that a lenient view could be taken in the matter and the sentence of imprisonment could be reduced and, accordingly, reduced the sentence to the period already undergone and directed the appellant to pay compensation of Rs. One lakh to the mother of the victim. 78. World Health Organisation in the Global Status Report on Road Safety has pointed out that speeding and drunk driving are the major contributing factors in road accidents. According to National Crime Records Bureau (NCRB), the total number of deaths due to road accidents in India every year is now over 1,35,000. NCRB Report also states drunken driving as a major factor for road accidents. Our country has a dubious distinction of registering maximum number of deaths in road accidents. It is high time that law makers revisit the sentencing policy reflected in Section 304A IPC. 79. The facts and circumstances of the case which have been proved by the prosecution in bringing home the guilt of the accused under Section 304 Part II IPC undoubtedly show despicable aggravated offence warranting punishment proportionate to the crime. Seven precious human lives were lost by the act of the accused. For an offence like this which has been proved against the appellant, sentence of three years awarded by the High Court is too meagre and not adequate but since no appeal has been preferred by the State, we refrain from considering the matter for enhancement. By letting the appellant away on the sentence already undergone i.e. two months in a case like this, in our view, would be travesty of justice and highly unjust, unfair, improper and disproportionate to the gravity of crime. It is true that the appellant has paid compensation of Rs. 8,50,000/- but no amount of compensation could relieve the family of victims from the constant agony. As a matter of fact, High Court had been quite considerate and lenient in awarding to the appellant sentence of three years for an offence under Section 304 Part II IPC where seven persons were killed.80. We are satisfied that the facts and circumstances of the case do not justify benefit of probation to the appellant for good conduct or for any reduction of sentence.
### Response:
0
### Explanation:
our opinion there is no impediment in law for an offender being charged for the offence under Section 304 Part II IPC and also under Sections 337 and 338 IPC. The two charges under Section 304 Part II IPC and Section 338 IPC can legally co-exist in a case of single rash or negligent act where a rash or negligent act is done with the knowledge of likelihood of its dangerous consequences.44. By charging the appellant for the offence under Section 304 Part II IPC and Section 338 IPC - which is legally permissible - no prejudice has been caused to him. The appellant was made fully aware of the charges against him and there is no failure of justice. We are, therefore, unable to accept the submission of Mr. U.U. Lalit that by charging the appellant for the offences under Section 304 Part II IPC and Section 338 IPC for a rash or negligent act resulting in injuries to eight persons and at the same time committed with the knowledge resulting in death of seven persons, the appellant has been asked to face legally impermissiblecannot be said that the appellant was not made fully aware of the prosecution evidence that he had driven the car rashly or negligently in a drunken condition. He had full opportunity to say what he wanted to say with regard to the prosecution evidence.We have also carefully considered the evidence let in by prosecution - the substance of which has been referred to above - and we find no justifiable ground to take a view different from that of the High Court. We agree with the conclusions of the High Court and have no hesitation in holding that the evidence and materials on record prove beyond reasonable doubt that the appellant can be attributed with knowledge that his act of driving the vehicle at a high speed in the rash or negligent manner was dangerous enough and he knew that one result would very likely be that people who were asleep on the pavement may be hit, should the vehicle go out of control. There is a presumption that a man knows the natural and likely consequences of his acts. Moreover, an act does not become involuntary act simply because its consequences were unforeseen. The cases of negligence or of rashness or dangerous driving do not eliminate the act being voluntary. In the present case, the essential ingredients of Section 304 Part II IPC have been successfully established by the prosecution against the appellant. The infirmities pointed out by Mr. U.U. Lalit, learned senior counsel for the appellant, which have been noticed above are not substantial and in no way affect the legality of the trial and the conviction of the appellant under Section 304 Part II IPC. We uphold the view of the High Court being consistent with the evidence on record and law.The facts and circumstances of the case which have been proved by the prosecution in bringing home the guilt of the accused under Section 304 Part II IPC undoubtedly show despicable aggravated offence warranting punishment proportionate to the crime. Seven precious human lives were lost by the act of the accused. For an offence like this which has been proved against the appellant, sentence of three years awarded by the High Court is too meagre and not adequate but since no appeal has been preferred by the State, we refrain from considering the matter for enhancement. By letting the appellant away on the sentence already undergone i.e. two months in a case like this, in our view, would be travesty of justice and highly unjust, unfair, improper and disproportionate to the gravity of crime. It is true that the appellant has paid compensation of Rs. 8,50,000/- but no amount of compensation could relieve the family of victims from the constant agony. As a matter of fact, High Court had been quite considerate and lenient in awarding to the appellant sentence of three years for an offence under Section 304 Part II IPC where seven persons were killed.80. We are satisfied that the facts and circumstances of the case do not justify benefit of probation to the appellant for good conduct or for any reduction of
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Harijan Devabhai Jivabhai Vs. Becharbhai Valabhai Vaniya | was challenged by filing appeal before the Additional Registrar, Co-operative Societies (Appeals), Ahmedabad. The authority admitted the appeal but no interim order was passed. Hence, the Society preferred a revision application before the Deputy Secretary, Co-operative Societies (Appeals), Ahmedabad. In that revision application, the interim relief claimed by respondent No. 1 was refused. That order was challenged by filing Special Civil Application No. 4021 of 1999 before the High Court of Gujarat at Ahmedabad. In that petition it was contended that the Liquidator has taken charge of the Society on 2.6.1999. The learned Single Judge by order dated 21.1.2000 rejected the said petition by observing that against the interim order petition was not required to be entertained and directed the Additional Registrar to decide the appeal within 15 days and in the meantime parties were directed to maintain status quo. 8. Thereafter, by order dated 25.9.2000 the Additional Registrar Co-operative Societies (Appeals), Ahmedabad set aside the final order dated 29.5.1999 passed by the District Registrar, Sundernagar and directed him to decide the matter afresh after hearing the parties. 9. The appellant has also produced on record number of other orders passed by the High Court in different matters between the parties. One such order is dated 12th March, 2001 passed in Special Criminal Application No. 78 of 2000 filed by the respondent No. 2 wherein after considering the various contentions, the court finally observed that dispute has to be finally resolved by the District Registrar of the Co-operative Societies and not by the process adopted by the society. The Court also observed that there was interim order to maintain status quo as it existed. 10. From the aforesaid narration of facts it is apparent that the interim order dated 6.3.1999 passed by the District Registrar, Co-operative Societies Surendranagar under Section 107(1) of the Act remains in force. By the said order, Co-operative Officer is appointed as the Liquidator of the Society. Whether that order should be made final or not is still required to be decided by the District Registrar as the matter has been remitted back by the Additional Registrar Co-operative Societies (Appeals) by order dated 25th September, 2000. Previous orders passed by the High Court directing the parties to maintain status quo are in operation. The Liquidator has taken charge of the Society on 2nd June, 1999. On 29th December, 2000, the Liquidator appointed a Watchman to look after the land of the Society. In such a situation, there was no reason for the High Court to set at naught previous orders passed in different proceedings without deciding the Letters Patent Appeal on merits. 11. Further, the reason given by the High Court for setting aside the status quo order is, on the face of it, unjustifiable. The court held that if Liquidator is allowed to take charge of agricultural land, its yield is bound to suffer because he will not be in a position to till the land with the same zeal as that of the members of the Co-operative Society who have been cultivating the land since last 25 years. This reasoning is based on the assumption that the Liquidator who is an official of the Government will not be in a position to manage the affairs of the Co-operative Society including getting the land cultivated. The appointment of Liquidator or receiver, as the case may be, is known method for protecting the property in dispute. Unauthorised cultivation of land with zeal does not confer a right to continue cultivation of the land in violation of the law. Allegation against the Society was that it was formed by one family and 23 members of the said society belonged to the same family. Because of the said fraud being noticed, the District Registrar exercised his powers. The Gujarat Co-operative Societies Act empowers the District Registrar to the pass such appropriate orders. Further if reasoning of the High Court is accepted, in no set of circumstances, Liquidator could be appointed for the Co-operative Societies or for Companies registered under the Companies Act under different enactments. Appointment of Liquidator is accepted form of winding up of a Society or a Company. Further, in case where Liquidator is appointed of a Society or a company having agricultural land, he is not required to cultivate the same personally and he can certainly take steps for its cultivation either by giving licence or by agency agreement. Therefore, there is no question of agricultural yield suffering because of appointment of a Liquidator. Similarly, in appropriate cases, Court may appoint receiver to protect and preserve the property. In some cases, the receiver may permit the person who is holding the property to act as an agent of the receiver with a direction to deposit the royalty amount fixed by the receiver or on such other conditions which may meet the interests of justice. This may prevent further injury to the rights of the parties and protect the property. If the allegation against the respondent that Society was established by committing fraud is found to be true then such person should not be permitted to take undue advantage of his fraud. 12. In the present case, at present the dispute is pending with the District Registrar. Interim order passed by the District Registrar is in force. Liquidator has taken possession of the land. Therefore, till the disposal of the matter by the District Registrar, it is directed that Liquidator would grant licence to cultivate the land on the terms and conditions which may be fixed by him or on the basis by agency agreement by recovering a stipulated amount to the Society or its members. In any case, sale of the agricultural produce from the land in question should be done under his supervision and control. 13. With the above directions, the impugned order passed by the High Court is set aside. We make it clear that the authorities shall decide the matter on merits without being influenced by any observations made in this order. | 1[ds]12. In the present case, at present the dispute is pending with the District Registrar. Interim order passed by the District Registrar is in force. Liquidator has taken possession of the land. Therefore, till the disposal of the matter by the District Registrar, it is directed that Liquidator would grant licence to cultivate the land on the terms and conditions which may be fixed by him or on the basis by agency agreement by recovering a stipulated amount to the Society or its members. In any case, sale of the agricultural produce from the land in question should be done under his supervision and control13. With the above directions, the impugned order passed by the High Court is set aside. We make it clear that the authorities shall decide the matter on merits without being influenced by any observations made in this order. | 1 | 1,690 | 160 | ### Instruction:
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was challenged by filing appeal before the Additional Registrar, Co-operative Societies (Appeals), Ahmedabad. The authority admitted the appeal but no interim order was passed. Hence, the Society preferred a revision application before the Deputy Secretary, Co-operative Societies (Appeals), Ahmedabad. In that revision application, the interim relief claimed by respondent No. 1 was refused. That order was challenged by filing Special Civil Application No. 4021 of 1999 before the High Court of Gujarat at Ahmedabad. In that petition it was contended that the Liquidator has taken charge of the Society on 2.6.1999. The learned Single Judge by order dated 21.1.2000 rejected the said petition by observing that against the interim order petition was not required to be entertained and directed the Additional Registrar to decide the appeal within 15 days and in the meantime parties were directed to maintain status quo. 8. Thereafter, by order dated 25.9.2000 the Additional Registrar Co-operative Societies (Appeals), Ahmedabad set aside the final order dated 29.5.1999 passed by the District Registrar, Sundernagar and directed him to decide the matter afresh after hearing the parties. 9. The appellant has also produced on record number of other orders passed by the High Court in different matters between the parties. One such order is dated 12th March, 2001 passed in Special Criminal Application No. 78 of 2000 filed by the respondent No. 2 wherein after considering the various contentions, the court finally observed that dispute has to be finally resolved by the District Registrar of the Co-operative Societies and not by the process adopted by the society. The Court also observed that there was interim order to maintain status quo as it existed. 10. From the aforesaid narration of facts it is apparent that the interim order dated 6.3.1999 passed by the District Registrar, Co-operative Societies Surendranagar under Section 107(1) of the Act remains in force. By the said order, Co-operative Officer is appointed as the Liquidator of the Society. Whether that order should be made final or not is still required to be decided by the District Registrar as the matter has been remitted back by the Additional Registrar Co-operative Societies (Appeals) by order dated 25th September, 2000. Previous orders passed by the High Court directing the parties to maintain status quo are in operation. The Liquidator has taken charge of the Society on 2nd June, 1999. On 29th December, 2000, the Liquidator appointed a Watchman to look after the land of the Society. In such a situation, there was no reason for the High Court to set at naught previous orders passed in different proceedings without deciding the Letters Patent Appeal on merits. 11. Further, the reason given by the High Court for setting aside the status quo order is, on the face of it, unjustifiable. The court held that if Liquidator is allowed to take charge of agricultural land, its yield is bound to suffer because he will not be in a position to till the land with the same zeal as that of the members of the Co-operative Society who have been cultivating the land since last 25 years. This reasoning is based on the assumption that the Liquidator who is an official of the Government will not be in a position to manage the affairs of the Co-operative Society including getting the land cultivated. The appointment of Liquidator or receiver, as the case may be, is known method for protecting the property in dispute. Unauthorised cultivation of land with zeal does not confer a right to continue cultivation of the land in violation of the law. Allegation against the Society was that it was formed by one family and 23 members of the said society belonged to the same family. Because of the said fraud being noticed, the District Registrar exercised his powers. The Gujarat Co-operative Societies Act empowers the District Registrar to the pass such appropriate orders. Further if reasoning of the High Court is accepted, in no set of circumstances, Liquidator could be appointed for the Co-operative Societies or for Companies registered under the Companies Act under different enactments. Appointment of Liquidator is accepted form of winding up of a Society or a Company. Further, in case where Liquidator is appointed of a Society or a company having agricultural land, he is not required to cultivate the same personally and he can certainly take steps for its cultivation either by giving licence or by agency agreement. Therefore, there is no question of agricultural yield suffering because of appointment of a Liquidator. Similarly, in appropriate cases, Court may appoint receiver to protect and preserve the property. In some cases, the receiver may permit the person who is holding the property to act as an agent of the receiver with a direction to deposit the royalty amount fixed by the receiver or on such other conditions which may meet the interests of justice. This may prevent further injury to the rights of the parties and protect the property. If the allegation against the respondent that Society was established by committing fraud is found to be true then such person should not be permitted to take undue advantage of his fraud. 12. In the present case, at present the dispute is pending with the District Registrar. Interim order passed by the District Registrar is in force. Liquidator has taken possession of the land. Therefore, till the disposal of the matter by the District Registrar, it is directed that Liquidator would grant licence to cultivate the land on the terms and conditions which may be fixed by him or on the basis by agency agreement by recovering a stipulated amount to the Society or its members. In any case, sale of the agricultural produce from the land in question should be done under his supervision and control. 13. With the above directions, the impugned order passed by the High Court is set aside. We make it clear that the authorities shall decide the matter on merits without being influenced by any observations made in this order.
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1
### Explanation:
12. In the present case, at present the dispute is pending with the District Registrar. Interim order passed by the District Registrar is in force. Liquidator has taken possession of the land. Therefore, till the disposal of the matter by the District Registrar, it is directed that Liquidator would grant licence to cultivate the land on the terms and conditions which may be fixed by him or on the basis by agency agreement by recovering a stipulated amount to the Society or its members. In any case, sale of the agricultural produce from the land in question should be done under his supervision and control13. With the above directions, the impugned order passed by the High Court is set aside. We make it clear that the authorities shall decide the matter on merits without being influenced by any observations made in this order.
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State Of Mysore And Anr Vs. H. Srinivasamurthy | to the respondent, and was identically situated, was accorded the same treatment. It is urged that this principle of policy r was ignored in the case of the respondent, and he was without reason singled out for unfair discriminatory treatment. It is pointed out that his so-called "reversion" to the parent Department in 1958 for a short period, was a misnomer. It was not a reduction in rank, nor a break in the continuity of his service. Moreover, it was, as the Public Service Commission found, undeserved and could not, by any stretch of reasoning, be considered a ground for meting out discriminatory treatment to the respondent.8. We find a good deal of force in the arguments of the learned Counsel for the respondent.Rajalakshmiah Setty v. State of Mysore (supra) is clearly distinguishable from the facts of the present case. In that case, the Government of the then State of Mysore, by a notification dated December 12, 1949, directed that the promotions of 63 petitioners therein, from the post of Surveyors as Assistant Engineers were to take effect from that date irrespective of the dates on which they were put in charge of sub-divisions. But by a notification dated May 17, 1950, the Government showed a concession to a different batch of 41 Surveyors, who had been placed in charge of different sub-divisions between March 1944 and January 1946, by promoting them as Assistant Engineers, with effect from the dates of occurrence of vacancies, according to seniority. In November 1958, another batch of 107 persons were similarly promoted as Assistant Engineers with retrospective effect from 1st November 1956, when the new State of Mysore emerged under the States Reorganization Act. The petitioners therein filed a writ petition praying for the issue of mandamus directing the State to fix their seniority, also, on the basis that they had become Assistant Engineers from the dates on which the vacancies to which they-had been posted had occurred. The High Court dismissed petition. On appeal, this Court ; held that the concession shown to the batch of 41 persons who had been appointed before the petitioners and to the batch of 107 persons who had been appointed thereafter, were mere ad hoc concessions and not something which they could. claim as of right. It was observed that there was no service rule which the State Government had transgressed, nor the State had evolved any principle to be followed in respect of persons who were promoted to the rank of Assistant Engineers from surveyors.9. It may be noted that the grant of the relief prayed for by the 63 petitioners, would have unsettled and caused wholesale alterations of the seniority list with regard to the entire cadre of Engineers thus affecting persons who were not before the Court and who would have been r condemned unheard. Further, acceptance of the petitioners contentions would have unsettled pre-Constitution matters, and it would have been directly productive of results going against s. 115(7) of the States Re-organization Act. Furthermore, the petitioners in that case . claimed to be promoted with effect from past dates. There was no , principle of policy or service rule on the basis of which they could ` claim such promotions as of right. Lastly, the petitioners in that case were found guilty of serious laches.10. Such impediments in the way of the relief claimed by the respondent, do not exist in the present case. It appears to us that the acceptance of the respondents contentions in the present case cannot lead to any untoward results such as were apprehended in Rajalakshmiahs case (supra). Indeed, it has not been shown that the absorption of the respondent with effect from November, 1949, would adversely affect even Narayanaswamy Chetty, who was admittedly junior to him in the parent Department.On the` other hand, it is an undisputed fact that sit other employees, who were similarly situated, were absorbed from the dates on which they initially joined duty, after deputation to the Polytechnics. It is not the case of the appellant that this principle whereby the absorption in the Department of Technical Education was related back to the date on which a person initially came on deputation, was ever departed from, excepting in the case of the respondent. This being the case, the High Court was right in holding that the State Government had evolved a principle "that if a person was deputed to the Department of Technical Education from another department and he stayed on in that other department for a reasonable long time his absorption in that department should be made to relate back to the date on which he was initially sent". There was no justification whatever to depart from this principle of policy in the case of the respondent, who was, in all material respects, in the same situation as K. N. Chetty. very rightly, the High Court has held that his "impermissible reversion" for a short while in 1955 to the parent department was no ground to hold that he was not similarly situated as K. Nariayanaswamy Chetty. This so-called reversion to the parent Department for a short period- in 1955-56, could not by any reckoning, be treated as a break in his service, this period having been treated as leave. Nor did it amount u to reduction in rank. In any case, this reversion was not ordered owing to any fault of the respondent. It is not the appellants case " that the respondents work in the Department of Technical Education was found unsatisfactory or that he was not otherwise suitable or qualified to hold the post of Tailoring Instructor in that Department. That he was suitable to be absorbed in that post, is manifest from the recommendation of the Public Service Commission and is implicit in the impugned order, itself. For the reasons aforesaid, we are of opinion that in the special circumstances of this case, the High Court was fully justified in granting the relief, it did, to the respondent.11. | 0[ds]We find a good deal of force in the arguments of the learned Counsel for themay be noted that the grant of the relief prayed for by the 63 petitioners, would have unsettled and caused wholesale alterations of the seniority list with regard to the entire cadre of Engineers thus affecting persons who were not before the Court and who would have been r condemned unheard. Further, acceptance of the petitioners contentions would have unsettled pre-Constitution matters, and it would have been directly productive of results going against s. 115(7) of the States Re-organization Act. Furthermore, the petitioners in that case . claimed to be promoted with effect from past dates. There was no , principle of policy or service rule on the basis of which they could ` claim such promotions as of right. Lastly, the petitioners in that case were found guilty of seriousimpediments in the way of the relief claimed by the respondent, do not exist in the present case. It appears to us that the acceptance of the respondents contentions in the present case cannot lead to any untoward results such as were apprehended in Rajalakshmiahs case (supra). Indeed, it has not been shown that the absorption of the respondent with effect from November, 1949, would adversely affect even Narayanaswamy Chetty, who was admittedly junior to him in the parent Department.On the` other hand, it is an undisputed fact that sit other employees, who were similarly situated, were absorbed from the dates on which they initially joined duty, after deputation to the Polytechnics. It is not the case of the appellant that this principle whereby the absorption in the Department of Technical Education was related back to the date on which a person initially came on deputation, was ever departed from, excepting in the case of the respondent. This being the case, the High Court was right in holding that the State Government had evolved a principle "that if a person was deputed to the Department of Technical Education from another department and he stayed on in that other department for a reasonable long time his absorption in that department should be made to relate back to the date on which he was initially sent". There was no justification whatever to depart from this principle of policy in the case of the respondent, who was, in all material respects, in the same situation as K. N. Chetty. very rightly, the High Court has held that his "impermissible reversion" for a short while in 1955 to the parent department was no ground to hold that he was not similarly situated as K. Nariayanaswamy Chetty. This so-called reversion to the parent Department for a short period- in 1955-56, could not by any reckoning, be treated as a break in his service, this period having been treated as leave. Nor did it amount u to reduction in rank. In any case, this reversion was not ordered owing to any fault of the respondent. It is not the appellants case " that the respondents work in the Department of Technical Education was found unsatisfactory or that he was not otherwise suitable or qualified to hold the post of Tailoring Instructor in that Department. That he was suitable to be absorbed in that post, is manifest from the recommendation of the Public Service Commission and is implicit in the impugned order, itself. For the reasons aforesaid, we are of opinion that in the special circumstances of this case, the High Court was fully justified in granting the relief, it did, to the respondent. | 0 | 2,681 | 655 | ### Instruction:
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to the respondent, and was identically situated, was accorded the same treatment. It is urged that this principle of policy r was ignored in the case of the respondent, and he was without reason singled out for unfair discriminatory treatment. It is pointed out that his so-called "reversion" to the parent Department in 1958 for a short period, was a misnomer. It was not a reduction in rank, nor a break in the continuity of his service. Moreover, it was, as the Public Service Commission found, undeserved and could not, by any stretch of reasoning, be considered a ground for meting out discriminatory treatment to the respondent.8. We find a good deal of force in the arguments of the learned Counsel for the respondent.Rajalakshmiah Setty v. State of Mysore (supra) is clearly distinguishable from the facts of the present case. In that case, the Government of the then State of Mysore, by a notification dated December 12, 1949, directed that the promotions of 63 petitioners therein, from the post of Surveyors as Assistant Engineers were to take effect from that date irrespective of the dates on which they were put in charge of sub-divisions. But by a notification dated May 17, 1950, the Government showed a concession to a different batch of 41 Surveyors, who had been placed in charge of different sub-divisions between March 1944 and January 1946, by promoting them as Assistant Engineers, with effect from the dates of occurrence of vacancies, according to seniority. In November 1958, another batch of 107 persons were similarly promoted as Assistant Engineers with retrospective effect from 1st November 1956, when the new State of Mysore emerged under the States Reorganization Act. The petitioners therein filed a writ petition praying for the issue of mandamus directing the State to fix their seniority, also, on the basis that they had become Assistant Engineers from the dates on which the vacancies to which they-had been posted had occurred. The High Court dismissed petition. On appeal, this Court ; held that the concession shown to the batch of 41 persons who had been appointed before the petitioners and to the batch of 107 persons who had been appointed thereafter, were mere ad hoc concessions and not something which they could. claim as of right. It was observed that there was no service rule which the State Government had transgressed, nor the State had evolved any principle to be followed in respect of persons who were promoted to the rank of Assistant Engineers from surveyors.9. It may be noted that the grant of the relief prayed for by the 63 petitioners, would have unsettled and caused wholesale alterations of the seniority list with regard to the entire cadre of Engineers thus affecting persons who were not before the Court and who would have been r condemned unheard. Further, acceptance of the petitioners contentions would have unsettled pre-Constitution matters, and it would have been directly productive of results going against s. 115(7) of the States Re-organization Act. Furthermore, the petitioners in that case . claimed to be promoted with effect from past dates. There was no , principle of policy or service rule on the basis of which they could ` claim such promotions as of right. Lastly, the petitioners in that case were found guilty of serious laches.10. Such impediments in the way of the relief claimed by the respondent, do not exist in the present case. It appears to us that the acceptance of the respondents contentions in the present case cannot lead to any untoward results such as were apprehended in Rajalakshmiahs case (supra). Indeed, it has not been shown that the absorption of the respondent with effect from November, 1949, would adversely affect even Narayanaswamy Chetty, who was admittedly junior to him in the parent Department.On the` other hand, it is an undisputed fact that sit other employees, who were similarly situated, were absorbed from the dates on which they initially joined duty, after deputation to the Polytechnics. It is not the case of the appellant that this principle whereby the absorption in the Department of Technical Education was related back to the date on which a person initially came on deputation, was ever departed from, excepting in the case of the respondent. This being the case, the High Court was right in holding that the State Government had evolved a principle "that if a person was deputed to the Department of Technical Education from another department and he stayed on in that other department for a reasonable long time his absorption in that department should be made to relate back to the date on which he was initially sent". There was no justification whatever to depart from this principle of policy in the case of the respondent, who was, in all material respects, in the same situation as K. N. Chetty. very rightly, the High Court has held that his "impermissible reversion" for a short while in 1955 to the parent department was no ground to hold that he was not similarly situated as K. Nariayanaswamy Chetty. This so-called reversion to the parent Department for a short period- in 1955-56, could not by any reckoning, be treated as a break in his service, this period having been treated as leave. Nor did it amount u to reduction in rank. In any case, this reversion was not ordered owing to any fault of the respondent. It is not the appellants case " that the respondents work in the Department of Technical Education was found unsatisfactory or that he was not otherwise suitable or qualified to hold the post of Tailoring Instructor in that Department. That he was suitable to be absorbed in that post, is manifest from the recommendation of the Public Service Commission and is implicit in the impugned order, itself. For the reasons aforesaid, we are of opinion that in the special circumstances of this case, the High Court was fully justified in granting the relief, it did, to the respondent.11.
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### Explanation:
We find a good deal of force in the arguments of the learned Counsel for themay be noted that the grant of the relief prayed for by the 63 petitioners, would have unsettled and caused wholesale alterations of the seniority list with regard to the entire cadre of Engineers thus affecting persons who were not before the Court and who would have been r condemned unheard. Further, acceptance of the petitioners contentions would have unsettled pre-Constitution matters, and it would have been directly productive of results going against s. 115(7) of the States Re-organization Act. Furthermore, the petitioners in that case . claimed to be promoted with effect from past dates. There was no , principle of policy or service rule on the basis of which they could ` claim such promotions as of right. Lastly, the petitioners in that case were found guilty of seriousimpediments in the way of the relief claimed by the respondent, do not exist in the present case. It appears to us that the acceptance of the respondents contentions in the present case cannot lead to any untoward results such as were apprehended in Rajalakshmiahs case (supra). Indeed, it has not been shown that the absorption of the respondent with effect from November, 1949, would adversely affect even Narayanaswamy Chetty, who was admittedly junior to him in the parent Department.On the` other hand, it is an undisputed fact that sit other employees, who were similarly situated, were absorbed from the dates on which they initially joined duty, after deputation to the Polytechnics. It is not the case of the appellant that this principle whereby the absorption in the Department of Technical Education was related back to the date on which a person initially came on deputation, was ever departed from, excepting in the case of the respondent. This being the case, the High Court was right in holding that the State Government had evolved a principle "that if a person was deputed to the Department of Technical Education from another department and he stayed on in that other department for a reasonable long time his absorption in that department should be made to relate back to the date on which he was initially sent". There was no justification whatever to depart from this principle of policy in the case of the respondent, who was, in all material respects, in the same situation as K. N. Chetty. very rightly, the High Court has held that his "impermissible reversion" for a short while in 1955 to the parent department was no ground to hold that he was not similarly situated as K. Nariayanaswamy Chetty. This so-called reversion to the parent Department for a short period- in 1955-56, could not by any reckoning, be treated as a break in his service, this period having been treated as leave. Nor did it amount u to reduction in rank. In any case, this reversion was not ordered owing to any fault of the respondent. It is not the appellants case " that the respondents work in the Department of Technical Education was found unsatisfactory or that he was not otherwise suitable or qualified to hold the post of Tailoring Instructor in that Department. That he was suitable to be absorbed in that post, is manifest from the recommendation of the Public Service Commission and is implicit in the impugned order, itself. For the reasons aforesaid, we are of opinion that in the special circumstances of this case, the High Court was fully justified in granting the relief, it did, to the respondent.
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State Of Uttar Pradesh & Ors Vs. Shah Mohammad & Anr | pointed out in the above decision of this Court it would be open to the Parliament to affect the rights of citizens and the provisions made by the Parliamentary statute cannot be impeached on the ground that they are inconsistent with the provisions contained in other Articles in Part II of the Constitution.The Act has been enacted under the powers of the Parliament preserved by Article 11 in express terms. The Parliament had also legislative competence under Entry 17, List I of Seventh Schedule. It could thus make a provision about the forum where the question as to whether a person had acquired citizenship of another country could be determined and this is what has been done by Rule 30. The cases that would ordinarily arise about loss of Indian citizenship by acquisition of foreign citizenship would be of three kinds: (1) Indian citizens who voluntarily acquired citizenship of a foreign State prior to the commencement of the Constitution; (2) Indian citizens who voluntarily acquire the citizenship of another State or country between January 26, 1950 and December 30, 1955 i.e., the date of commencement of the Act; and (3) Indian citizens who voluntarily acquired foreign citizenship after the date of commencement of the Act i.e., December 30, 1955. As regards the first category they were dealt with by Article 9 of the Constitution. The second and the third categories would be covered by the provisions of Section 9 of the Act. If a question arises as to whether, when or how an Indian citizen has acquired the citizenship of another country that has to be determined by the Central Government by virtue of the provisions of sub-section (2) of Section 9 read with Rule 30 of the Citizenship Rules.6. Counsel for respondent No. 1 has relied on a decision of a learned Single Judge of the Allahabad High Court in Abida Khatoon v. State of U. P., AIR 1963 All 260 which was followed in the present case. There it was observed that a litigant, after filing a suit, acquired a vested right to have all questions determined by the Court in which the suit was filed and that the institution of the suit carried with it all the rights of appeal then in force. Referring to the normal principle that an Act is ordinarily not retrospective, that vested rights are not disturbed and that the jurisdiction of the civil courts in pending cases is not taken away by the creation of a new tribunal for the determination of a particular question, the learned Judge held that there was nothing in the language or the scheme of the Act to suggest that Parliament wanted to depart from these principles. We are unable to agree. In our judgment from the amplitude of the language employed in Section 9 which takes in persons in, category (2) mentioned above, the intention has been made clear that all cases which come up for determination where an Indian citizen has voluntarily acquired the citizenship of a foreign country after the commencement of the Constitution have to be dealt with and decided in accordance with its provisions. In this view of the matter the entire argument which prevailed with the Allahabad Court can have no substance.7. It has next been contended that retrospective operation should not be given to Section 9 of the Act because loss of citizenship is a serious and grave matter and it involves loss of personal liberty. Under Article 21 no person can be deprived of his life or personal liberty except according to procedure established by law. The procedure established by law before the commencement of the Act was the ordinary procedure of determination by Civil Courts whenever a question arose about loss of Indian citizenship by acquisition of citizenship of a foreign country or State. It is suggested by learned Counsel for respondent No. 1 that by giving retrospective operation to Section 9 so as to make it applicable to pending proceedings the provisions of Article 21 will be contravened or violated. This would render Section 9 of the Act unconstitutional. It is somewhat difficult to appreciate the argument, much less to accede to it.If the Parliament was competent under Article 11, which is a constitutional provision read with the relevant Entry in List I to legislate about cases of persons belonging to categories 2 and 3 referred to at a previous stage it could certainly enact a legislation in exercise of its sovereign power which laid down procedure different from the one which obtained before. The new procedure would itself become the "procedure established by law" within the meaning of Article 21 of the Constitution. Therefore even on the assumption that loss of Indian citizenship with consequent deportation may involve loss of personal liberty within the meaning of Art. 21, it is not possible to hold that by applying Section 9 of the Act and Rule 30 of the Rules to a case in which a suit had been instituted prior to the commencement of the Act there would be any contravention or violation of that Article.8. In conclusion it may be mentioned that this Court, in several cases, has consistently held that questions falling within Section 9 (2) have to be determined to the extent indicated therein by the Central Government and not by the Courts.Such matters as are not covered by that provision have, however, to be determined by the Courts; (see Akbar Khan Alam Khan v. Union of India, 1962 (1) SCR 779 = (AIR 1962 SC 70 ) and (1962) Supp (3) SCR 235=(AIR 1962 SC 1052 ) and Government of Andhra Pradesh v. Syed Mohd. Khan, (1962) Supp (3) SCR 288= (AIR 1962 SC 1778 )).9. In the present case the High Court ought not to have called for a decision of the lower appellate Court on the issue of the plaintiff having acquired or not acquired the citizenship of Pakistan between July 3, 1952 and the date of his return to India. | 1[ds]The validity of the provisions of the Act and the Rules is no longer open to challenge. It has not been disputed by learned counsel for respondent No. 1 that after the enforcement of the Act and promulgation of Rule 30 the only authority which is competent to determine whether citizenship of Pakistan has been acquired by him is the Central Government. But it has been strenuously urged that the suit in the present case had been instituted prior to the date of enforcement of the Act and therefore respondent No. 1 was entitled to get this question determined by the Courts and not by the Central Government. In other words Section 9 of the Act cannot be given retrospective operation so as to be made applicable to pending proceedings. Thus the first point which as to be decided is whether Section 9 either expressly or by necessary implication has been made applicable to or would govern pending proceedings.The language of sub-s. (1) is clear and unequivocal and leaves no room for doubt that it would cover all cases where an Indian citizen has acquired foreign nationality between January 26, 1950 and its commencement or where he acquires such nationality after its commencement.The words "or has at any time between the 26th January, 1950 and the commencement of this Act, voluntarily acquired the citizenship of another country" would become almost redundant if only prospective operation is given to S. 9 (1) of the Act. This according to the settled rules of interpretation cannot beis somewhat difficult to appreciate the argument, much less to accede to it.If the Parliament was competent under Article 11, which is a constitutional provision read with the relevant Entry in List I to legislate about cases of persons belonging to categories 2 and 3 referred to at a previous stage it could certainly enact a legislation in exercise of its sovereign power which laid down procedure different from the one which obtained before. The new procedure would itself become the "procedure established by law" within the meaning of Article 21 of the Constitution. Therefore even on the assumption that loss of Indian citizenship with consequent deportation may involve loss of personal liberty within the meaning of Art. 21, it is not possible to hold that by applying Section 9 of the Act and Rule 30 of the Rules to a case in which a suit had been instituted prior to the commencement of the Act there would be any contravention or violation of that Article.8. In conclusion it may be mentioned that this Court, in several cases, has consistently held that questions falling within Section 9 (2) have to be determined to the extent indicated therein by the Central Government and not by the Courts.Such matters as are not covered by that provision have, however, to be determined by the Courts; (see Akbar Khan Alam Khan v. Union of India, 1962 (1) SCR 779 = (AIR 1962 SC 70 ) and (1962) Supp (3) SCR 235=(AIR 1962 SC 1052 ) and Government of Andhra Pradesh v. Syed Mohd. Khan, (1962) Supp (3) SCR 288= (AIR 1962 SC 1778 )).9. In the present case the High Court ought not to have called for a decision of the lower appellate Court on the issue of the plaintiff having acquired or not acquired the citizenship of Pakistan between July 3, 1952 and the date of his return to India. | 1 | 2,684 | 631 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
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pointed out in the above decision of this Court it would be open to the Parliament to affect the rights of citizens and the provisions made by the Parliamentary statute cannot be impeached on the ground that they are inconsistent with the provisions contained in other Articles in Part II of the Constitution.The Act has been enacted under the powers of the Parliament preserved by Article 11 in express terms. The Parliament had also legislative competence under Entry 17, List I of Seventh Schedule. It could thus make a provision about the forum where the question as to whether a person had acquired citizenship of another country could be determined and this is what has been done by Rule 30. The cases that would ordinarily arise about loss of Indian citizenship by acquisition of foreign citizenship would be of three kinds: (1) Indian citizens who voluntarily acquired citizenship of a foreign State prior to the commencement of the Constitution; (2) Indian citizens who voluntarily acquire the citizenship of another State or country between January 26, 1950 and December 30, 1955 i.e., the date of commencement of the Act; and (3) Indian citizens who voluntarily acquired foreign citizenship after the date of commencement of the Act i.e., December 30, 1955. As regards the first category they were dealt with by Article 9 of the Constitution. The second and the third categories would be covered by the provisions of Section 9 of the Act. If a question arises as to whether, when or how an Indian citizen has acquired the citizenship of another country that has to be determined by the Central Government by virtue of the provisions of sub-section (2) of Section 9 read with Rule 30 of the Citizenship Rules.6. Counsel for respondent No. 1 has relied on a decision of a learned Single Judge of the Allahabad High Court in Abida Khatoon v. State of U. P., AIR 1963 All 260 which was followed in the present case. There it was observed that a litigant, after filing a suit, acquired a vested right to have all questions determined by the Court in which the suit was filed and that the institution of the suit carried with it all the rights of appeal then in force. Referring to the normal principle that an Act is ordinarily not retrospective, that vested rights are not disturbed and that the jurisdiction of the civil courts in pending cases is not taken away by the creation of a new tribunal for the determination of a particular question, the learned Judge held that there was nothing in the language or the scheme of the Act to suggest that Parliament wanted to depart from these principles. We are unable to agree. In our judgment from the amplitude of the language employed in Section 9 which takes in persons in, category (2) mentioned above, the intention has been made clear that all cases which come up for determination where an Indian citizen has voluntarily acquired the citizenship of a foreign country after the commencement of the Constitution have to be dealt with and decided in accordance with its provisions. In this view of the matter the entire argument which prevailed with the Allahabad Court can have no substance.7. It has next been contended that retrospective operation should not be given to Section 9 of the Act because loss of citizenship is a serious and grave matter and it involves loss of personal liberty. Under Article 21 no person can be deprived of his life or personal liberty except according to procedure established by law. The procedure established by law before the commencement of the Act was the ordinary procedure of determination by Civil Courts whenever a question arose about loss of Indian citizenship by acquisition of citizenship of a foreign country or State. It is suggested by learned Counsel for respondent No. 1 that by giving retrospective operation to Section 9 so as to make it applicable to pending proceedings the provisions of Article 21 will be contravened or violated. This would render Section 9 of the Act unconstitutional. It is somewhat difficult to appreciate the argument, much less to accede to it.If the Parliament was competent under Article 11, which is a constitutional provision read with the relevant Entry in List I to legislate about cases of persons belonging to categories 2 and 3 referred to at a previous stage it could certainly enact a legislation in exercise of its sovereign power which laid down procedure different from the one which obtained before. The new procedure would itself become the "procedure established by law" within the meaning of Article 21 of the Constitution. Therefore even on the assumption that loss of Indian citizenship with consequent deportation may involve loss of personal liberty within the meaning of Art. 21, it is not possible to hold that by applying Section 9 of the Act and Rule 30 of the Rules to a case in which a suit had been instituted prior to the commencement of the Act there would be any contravention or violation of that Article.8. In conclusion it may be mentioned that this Court, in several cases, has consistently held that questions falling within Section 9 (2) have to be determined to the extent indicated therein by the Central Government and not by the Courts.Such matters as are not covered by that provision have, however, to be determined by the Courts; (see Akbar Khan Alam Khan v. Union of India, 1962 (1) SCR 779 = (AIR 1962 SC 70 ) and (1962) Supp (3) SCR 235=(AIR 1962 SC 1052 ) and Government of Andhra Pradesh v. Syed Mohd. Khan, (1962) Supp (3) SCR 288= (AIR 1962 SC 1778 )).9. In the present case the High Court ought not to have called for a decision of the lower appellate Court on the issue of the plaintiff having acquired or not acquired the citizenship of Pakistan between July 3, 1952 and the date of his return to India.
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1
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The validity of the provisions of the Act and the Rules is no longer open to challenge. It has not been disputed by learned counsel for respondent No. 1 that after the enforcement of the Act and promulgation of Rule 30 the only authority which is competent to determine whether citizenship of Pakistan has been acquired by him is the Central Government. But it has been strenuously urged that the suit in the present case had been instituted prior to the date of enforcement of the Act and therefore respondent No. 1 was entitled to get this question determined by the Courts and not by the Central Government. In other words Section 9 of the Act cannot be given retrospective operation so as to be made applicable to pending proceedings. Thus the first point which as to be decided is whether Section 9 either expressly or by necessary implication has been made applicable to or would govern pending proceedings.The language of sub-s. (1) is clear and unequivocal and leaves no room for doubt that it would cover all cases where an Indian citizen has acquired foreign nationality between January 26, 1950 and its commencement or where he acquires such nationality after its commencement.The words "or has at any time between the 26th January, 1950 and the commencement of this Act, voluntarily acquired the citizenship of another country" would become almost redundant if only prospective operation is given to S. 9 (1) of the Act. This according to the settled rules of interpretation cannot beis somewhat difficult to appreciate the argument, much less to accede to it.If the Parliament was competent under Article 11, which is a constitutional provision read with the relevant Entry in List I to legislate about cases of persons belonging to categories 2 and 3 referred to at a previous stage it could certainly enact a legislation in exercise of its sovereign power which laid down procedure different from the one which obtained before. The new procedure would itself become the "procedure established by law" within the meaning of Article 21 of the Constitution. Therefore even on the assumption that loss of Indian citizenship with consequent deportation may involve loss of personal liberty within the meaning of Art. 21, it is not possible to hold that by applying Section 9 of the Act and Rule 30 of the Rules to a case in which a suit had been instituted prior to the commencement of the Act there would be any contravention or violation of that Article.8. In conclusion it may be mentioned that this Court, in several cases, has consistently held that questions falling within Section 9 (2) have to be determined to the extent indicated therein by the Central Government and not by the Courts.Such matters as are not covered by that provision have, however, to be determined by the Courts; (see Akbar Khan Alam Khan v. Union of India, 1962 (1) SCR 779 = (AIR 1962 SC 70 ) and (1962) Supp (3) SCR 235=(AIR 1962 SC 1052 ) and Government of Andhra Pradesh v. Syed Mohd. Khan, (1962) Supp (3) SCR 288= (AIR 1962 SC 1778 )).9. In the present case the High Court ought not to have called for a decision of the lower appellate Court on the issue of the plaintiff having acquired or not acquired the citizenship of Pakistan between July 3, 1952 and the date of his return to India.
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Tata Oil Mills Company, Limited Vs. Its Workmen & Another | says that the so-called enquiry was started on 1 September, 1959. There is no averment in the statement alleging that the enquiry was unfair or setting forth any grounds as to why it was unfair. Gupta has given evidence in this case before the tribunal. In his evidence, he has not made any allegation on oath about the impropriety or the unfairness of the enquiry. It is significant that Gupta gave evidence after Mr. Kamta Prasad proved the enquiry. Mr. Kamta Prasads evidence showed that he produced all the papers in respect of the two enquiries and he supported the appellants case that the enquiry were proper. Even though Gupta went into the witness-box after Mr. Kamta Prasad gave his evidence, he did not suggest anything against the fairness of the enquiry. That being so, we do not think that we can allow Mr. Misra to take a new point of fact for the first time in this Court.8. Lastly, Mr. Misra has argued that the enquiry was unfair because a copy of Mr. Banerjees report had not been given to Gupta when the domestic enquiry was held. It does appear that Gupta asked for a copy of Mr. Banerjees report and that request was not granted. The said report had been produced before the tribunal and forms part of the record placed before us. Mr. Misra contends and with some force that it was necessary that the employer should have supplied Gupta with a copy of this report to enable him to cross-examine Mr. Banerjee. It appears that at the instance of the manager, Mr. Banerjee made an enquiry on the spot and as a result of the enquiry, he made his report on 13 October, 1958. Mr. Banerjee gave evidence on behalf of the appellant and he has been a cross-examined by Gupta. If Gupta wanted a copy of the report made by Banerjee to enable him to cross-examine him on that report, it was clearly necessary that the report should have been supplied to him and the grievance made by Mr. Misra on this count must be held to be well-founded. We have however examined the question from the point of view determining whether any prejudice has been caused to Gupta as a result of the enquiry officers failure to give him a copy of the report. The report consists of two principal statements; the first is that the stockists of the appellant at Faizabad - Vanaspati Trading Company - reported to Mr. Banerjee that Gupta had not done the market at Faizabad on 16 September; the second statement is that when Gupta was confronted with this complaint by Mr. Banerjee, he admitted that he had not worked the market on 16 September, but only on 17, and he urged that his wife was seriously ill and so he could not go to Faizabad on 16. Having regard to this statement made by Gupta, Mr. Banerjee recommended that Gupta may be given a warning. It would thus be seen that the two statements on which Gupta; would have desired to cross-examine Mr. Banerjee if a copy of the report had been given to him have in fact been tested by him by cross-examining Mr. Banerjee and this became possible because Mr. Banerjee stated in his evidence what he had come to know at Faizabad in his enquiry. He made both the statements. He stated that he told the enquiry officer what the stockists had told him and he also told that Gupta had admitted his guilt before him. Therefore, on facts, the position appears to be that the two points on which Gupta could have cross-examined Mr. Banerjee if the report had been given to him have been tested in cross-examination, and so we feel no hesitation in holding that the failure to supply Mr. Banerjees report to Gupta has not caused any prejudice to Gupta in the present case. These are the only grounds on which Mr. Misra made a strenuous effort to sustain the finding of the tribunal that the enquiry on the first charge was unfair. We have come to the conclusion that the said finding cannot be supported in law.As soon as we reach the conclusion that the enquiry held in respect of first charge is not shown to be unfair, it follows that the finding has gone against Gupta and on that finding, the appellant is entitled to terminate his services by way of dismissal. Mr. Misra attempted to argue that the order of dismissal is so unduly severe that that itself may make the termination illegal. We are not prepared to accept this argument. It is true that Courts do come across cases where the dismissal of an employee may appear to the Court to be so unreasonably severe as to give rise to an inference that it is a case of victimization, but this inference cannot arise in every case where the Court feels that the order is a little too severe. In the circumstances of this case, we see no justification for the contention that there has been a case of victimization.9. That leaves the question of the second charge to be considered. It appears that on the second charge when the enquiry commenced Gupta refused to answer any question on the ground that unless evidence was led in support of the charge, he was not bound to make any answer. Technically that is true, and technically the enquiry can be said to be defective; but the substance of the matter was that Gupta did not comply with the order which called him to work the Mau market on 17 September, 1958, and under the service rules, it was a case of not doing duty without leave or without justification. However, we do not think it necessary to pursue this matter any further, because in our opinion, the appellant was justified in dismissing Gupta even on the proof of the first charge which has been duly and properly investigated. | 1[ds]3. For the purpose of this appeal, we are assuming that the tribunal was right in overruling the two preliminary objections raised by the appellant, and we will therefore deal with the merits of the dispute between the parties and the award in relation thereto.In the present case, the tribunal does not appear to have borne in mind the limitations of its jurisdiction in dealing with the present dispute. It is true that in one place the tribunal has held that the enquiry in regard to the first charge was unfair and we will presently deal with this finding. But, then, the tribunal has dealt with the merits of the findings recorded by Mr. Kamta Prasad and having come to the conclusion that these findings did not inspire confidence in the mind of the tribunal, it has mixed up this conclusion with the first conclusion that the trial was unfair. In other words, it appears that the tribunal was influenced by the fact that the conclusions of Mr. Kamta Prasad did not appear to the tribunal to be correct, though partly, in coming to the conclusion that the enquiry was unfair. This approach was obviously untenable.6. Reverting to the finding of the tribunal that the enquiry was unfair, it is significant that the only reason given by the tribunal in respect of its finding in regard to the first enquiry is that Gupta was not given proper opportunity to make his explanation in reply to the charge. We have already seen that the first charge was served on Gupta on 16 September, 1958 and it appears that Gupta was told to work the Mau market next day. The tribunal seems to have thought that because Gupta was asked to work the Mau market on 17 September he was really not given an opportunity to consider the matter at leisure before making his reply to the charge. Now, in coming to this conclusion the tribunal has lost sight of the fact that Gupta did not go to operate the Mau market and made his explanation within the time prescribed after consulting his lawyer. In fact, Gupta was given time until 22 December and in fact Gupta had consultations with his friends and lawyers before he made his defence. That being so, it is not easy to follow how the tribunal came to the conclusion that the trial was unfair. First it will be noticed that Gupta was given enough time to make his answer and the explanation which he gave was followed by an enquiry much later. Besides, as we have just noticed, Gupta did have time and opportunity for consultations. Mr. Misra who has argued the case of Gupta before us saw the difficulty in supporting this finding and so he pressed before us an ingenious aspect of the matter. He contended that though it is true that Gupta had time enough to consult the lawyer and to make his explanation, he got this time, by disobeying the order of the employer to go to the Mau market on 17 September and that, Mr. Misra says, showed that the employer did not give him a proper opportunity to make his defence. We are not impressed by this argument. There is no doubt that time was given to Gupta to make his explanation and he made a proper explanation according to the advice that he received.In this connexion, we ought to emphasize the fact that the actual enquiry which began on 9 January appears to have been conducted somewhat elaborately. Witnesses were heard from 9 to 14 January, 1959. Gupta hasthe witnesses and had led his own evidence. Therefore, in considering the question as to whether the enquiry had been fair or not, the argument that he was not given time to make his explanation would be very insignificant. Unfortunately, that appears to be the only reason given by the tribunal in support of its finding that the enquiry into the first charge was unfair. In our opinion, this reason is wholly untenable and the conclusion based on it is open to seriouspart from the fact that this statement does not very easily yield that meaning, we do not see how the fairness of the enquiry can be challenged on the contention that this statement of Mr. Laxminarain has not been weighed by Mr. Kamta Prasad. The appreciation of evidence adduced in a domestic enquiry is a matter within the jurisdiction of the enquiry officer and the fact that some evidence which could have appeared to the domestic tribunal to be relevant was treated by it as unreliable would not make the enquiry unfair. This position is too plain for words. Therefore, the argument that Mr. Laxminarains report was not duly considered and therefore the enquiry was unfair does not carry Guptas case anythe statement of the case filed by theon behalf of Gupta before the industrial tribunal the only allegation made is that the termination of services was improper and the only reference to the enquiry is contained in Para. 14 which says that theenquiry was started on 1 September, 1959. There is no averment in the statement alleging that the enquiry was unfair or setting forth any grounds as to why it was unfair. Gupta has given evidence in this case before the tribunal. In his evidence, he has not made any allegation on oath about the impropriety or the unfairness of the enquiry. It is significant that Gupta gave evidence after Mr. Kamta Prasad proved the enquiry. Mr. Kamta Prasads evidence showed that he produced all the papers in respect of the two enquiries and he supported the appellants case that the enquiry were proper. Even though Gupta went into theafter Mr. Kamta Prasad gave his evidence, he did not suggest anything against the fairness of the enquiry. That being so, we do not think that we can allow Mr. Misra to take a new point of fact for the first time in thisdoes appear that Gupta asked for a copy of Mr. Banerjees report and that request was not granted. The said report had been produced before the tribunal and forms part of the record placed before us. Mr. Misra contends and with some force that it was necessary that the employer should have supplied Gupta with a copy of this report to enable him toMr. Banerjee. It appears that at the instance of the manager, Mr. Banerjee made an enquiry on the spot and as a result of the enquiry, he made his report on 13 October, 1958. Mr. Banerjee gave evidence on behalf of the appellant and he has been aby Gupta. If Gupta wanted a copy of the report made by Banerjee to enable him tohim on that report, it was clearly necessary that the report should have been supplied to him and the grievance made by Mr. Misra on this count must be held to beWe have however examined the question from the point of view determining whether any prejudice has been caused to Gupta as a result of the enquiry officers failure to give him a copy of the report. The report consists of two principal statements; the first is that the stockists of the appellant at FaizabadVanaspati Trading Companyreported to Mr. Banerjee that Gupta had not done the market at Faizabad on 16 September; the second statement is that when Gupta was confronted with this complaint by Mr. Banerjee, he admitted that he had not worked the market on 16 September, but only on 17, and he urged that his wife was seriously ill and so he could not go to Faizabad on 16. Having regard to this statement made by Gupta, Mr. Banerjee recommended that Gupta may be given a warning. It would thus be seen that the two statements on which Gupta; would have desired toMr. Banerjee if a copy of the report had been given to him have in fact been tested by him byMr. Banerjee and this became possible because Mr. Banerjee stated in his evidence what he had come to know at Faizabad in his enquiry. He made both the statements. He stated that he told the enquiry officer what the stockists had told him and he also told that Gupta had admitted his guilt before him. Therefore, on facts, the position appears to be that the two points on which Gupta could haveMr. Banerjee if the report had been given to him have been tested inand so we feel no hesitation in holding that the failure to supply Mr. Banerjees report to Gupta has not caused any prejudice to Gupta in the present case. These are the only grounds on which Mr. Misra made a strenuous effort to sustain the finding of the tribunal that the enquiry on the first charge was unfair. We have come to the conclusion that the said finding cannot be supported in law.As soon as we reach the conclusion that the enquiry held in respect of first charge is not shown to be unfair, it follows that the finding has gone against Gupta and on that finding, the appellant is entitled to terminate his services by way of dismissal. Mr. Misra attempted to argue that the order of dismissal is so unduly severe that that itself may make the termination illegal. We are not prepared to accept this argument. It is true that Courts do come across cases where the dismissal of an employee may appear to the Court to be so unreasonably severe as to give rise to an inference that it is a case of victimization, but this inference cannot arise in every case where the Court feels that the order is a little too severe. In the circumstances of this case, we see no justification for the contention that there has been a case ofappears that on the second charge when the enquiry commenced Gupta refused to answer any question on the ground that unless evidence was led in support of the charge, he was not bound to make any answer. Technically that is true, and technically the enquiry can be said to be defective; but the substance of the matter was that Gupta did not comply with the order which called him to work the Mau market on 17 September, 1958, and under the service rules, it was a case of not doing duty without leave or without justification. However, we do not think it necessary to pursue this matter any further, because in our opinion, the appellant was justified in dismissing Gupta even on the proof of the first charge which has been duly and properly investigated. | 1 | 3,284 | 1,893 | ### 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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says that the so-called enquiry was started on 1 September, 1959. There is no averment in the statement alleging that the enquiry was unfair or setting forth any grounds as to why it was unfair. Gupta has given evidence in this case before the tribunal. In his evidence, he has not made any allegation on oath about the impropriety or the unfairness of the enquiry. It is significant that Gupta gave evidence after Mr. Kamta Prasad proved the enquiry. Mr. Kamta Prasads evidence showed that he produced all the papers in respect of the two enquiries and he supported the appellants case that the enquiry were proper. Even though Gupta went into the witness-box after Mr. Kamta Prasad gave his evidence, he did not suggest anything against the fairness of the enquiry. That being so, we do not think that we can allow Mr. Misra to take a new point of fact for the first time in this Court.8. Lastly, Mr. Misra has argued that the enquiry was unfair because a copy of Mr. Banerjees report had not been given to Gupta when the domestic enquiry was held. It does appear that Gupta asked for a copy of Mr. Banerjees report and that request was not granted. The said report had been produced before the tribunal and forms part of the record placed before us. Mr. Misra contends and with some force that it was necessary that the employer should have supplied Gupta with a copy of this report to enable him to cross-examine Mr. Banerjee. It appears that at the instance of the manager, Mr. Banerjee made an enquiry on the spot and as a result of the enquiry, he made his report on 13 October, 1958. Mr. Banerjee gave evidence on behalf of the appellant and he has been a cross-examined by Gupta. If Gupta wanted a copy of the report made by Banerjee to enable him to cross-examine him on that report, it was clearly necessary that the report should have been supplied to him and the grievance made by Mr. Misra on this count must be held to be well-founded. We have however examined the question from the point of view determining whether any prejudice has been caused to Gupta as a result of the enquiry officers failure to give him a copy of the report. The report consists of two principal statements; the first is that the stockists of the appellant at Faizabad - Vanaspati Trading Company - reported to Mr. Banerjee that Gupta had not done the market at Faizabad on 16 September; the second statement is that when Gupta was confronted with this complaint by Mr. Banerjee, he admitted that he had not worked the market on 16 September, but only on 17, and he urged that his wife was seriously ill and so he could not go to Faizabad on 16. Having regard to this statement made by Gupta, Mr. Banerjee recommended that Gupta may be given a warning. It would thus be seen that the two statements on which Gupta; would have desired to cross-examine Mr. Banerjee if a copy of the report had been given to him have in fact been tested by him by cross-examining Mr. Banerjee and this became possible because Mr. Banerjee stated in his evidence what he had come to know at Faizabad in his enquiry. He made both the statements. He stated that he told the enquiry officer what the stockists had told him and he also told that Gupta had admitted his guilt before him. Therefore, on facts, the position appears to be that the two points on which Gupta could have cross-examined Mr. Banerjee if the report had been given to him have been tested in cross-examination, and so we feel no hesitation in holding that the failure to supply Mr. Banerjees report to Gupta has not caused any prejudice to Gupta in the present case. These are the only grounds on which Mr. Misra made a strenuous effort to sustain the finding of the tribunal that the enquiry on the first charge was unfair. We have come to the conclusion that the said finding cannot be supported in law.As soon as we reach the conclusion that the enquiry held in respect of first charge is not shown to be unfair, it follows that the finding has gone against Gupta and on that finding, the appellant is entitled to terminate his services by way of dismissal. Mr. Misra attempted to argue that the order of dismissal is so unduly severe that that itself may make the termination illegal. We are not prepared to accept this argument. It is true that Courts do come across cases where the dismissal of an employee may appear to the Court to be so unreasonably severe as to give rise to an inference that it is a case of victimization, but this inference cannot arise in every case where the Court feels that the order is a little too severe. In the circumstances of this case, we see no justification for the contention that there has been a case of victimization.9. That leaves the question of the second charge to be considered. It appears that on the second charge when the enquiry commenced Gupta refused to answer any question on the ground that unless evidence was led in support of the charge, he was not bound to make any answer. Technically that is true, and technically the enquiry can be said to be defective; but the substance of the matter was that Gupta did not comply with the order which called him to work the Mau market on 17 September, 1958, and under the service rules, it was a case of not doing duty without leave or without justification. However, we do not think it necessary to pursue this matter any further, because in our opinion, the appellant was justified in dismissing Gupta even on the proof of the first charge which has been duly and properly investigated.
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unfair. This position is too plain for words. Therefore, the argument that Mr. Laxminarains report was not duly considered and therefore the enquiry was unfair does not carry Guptas case anythe statement of the case filed by theon behalf of Gupta before the industrial tribunal the only allegation made is that the termination of services was improper and the only reference to the enquiry is contained in Para. 14 which says that theenquiry was started on 1 September, 1959. There is no averment in the statement alleging that the enquiry was unfair or setting forth any grounds as to why it was unfair. Gupta has given evidence in this case before the tribunal. In his evidence, he has not made any allegation on oath about the impropriety or the unfairness of the enquiry. It is significant that Gupta gave evidence after Mr. Kamta Prasad proved the enquiry. Mr. Kamta Prasads evidence showed that he produced all the papers in respect of the two enquiries and he supported the appellants case that the enquiry were proper. Even though Gupta went into theafter Mr. Kamta Prasad gave his evidence, he did not suggest anything against the fairness of the enquiry. That being so, we do not think that we can allow Mr. Misra to take a new point of fact for the first time in thisdoes appear that Gupta asked for a copy of Mr. Banerjees report and that request was not granted. The said report had been produced before the tribunal and forms part of the record placed before us. Mr. Misra contends and with some force that it was necessary that the employer should have supplied Gupta with a copy of this report to enable him toMr. Banerjee. It appears that at the instance of the manager, Mr. Banerjee made an enquiry on the spot and as a result of the enquiry, he made his report on 13 October, 1958. Mr. Banerjee gave evidence on behalf of the appellant and he has been aby Gupta. If Gupta wanted a copy of the report made by Banerjee to enable him tohim on that report, it was clearly necessary that the report should have been supplied to him and the grievance made by Mr. Misra on this count must be held to beWe have however examined the question from the point of view determining whether any prejudice has been caused to Gupta as a result of the enquiry officers failure to give him a copy of the report. The report consists of two principal statements; the first is that the stockists of the appellant at FaizabadVanaspati Trading Companyreported to Mr. Banerjee that Gupta had not done the market at Faizabad on 16 September; the second statement is that when Gupta was confronted with this complaint by Mr. Banerjee, he admitted that he had not worked the market on 16 September, but only on 17, and he urged that his wife was seriously ill and so he could not go to Faizabad on 16. Having regard to this statement made by Gupta, Mr. Banerjee recommended that Gupta may be given a warning. It would thus be seen that the two statements on which Gupta; would have desired toMr. Banerjee if a copy of the report had been given to him have in fact been tested by him byMr. Banerjee and this became possible because Mr. Banerjee stated in his evidence what he had come to know at Faizabad in his enquiry. He made both the statements. He stated that he told the enquiry officer what the stockists had told him and he also told that Gupta had admitted his guilt before him. Therefore, on facts, the position appears to be that the two points on which Gupta could haveMr. Banerjee if the report had been given to him have been tested inand so we feel no hesitation in holding that the failure to supply Mr. Banerjees report to Gupta has not caused any prejudice to Gupta in the present case. These are the only grounds on which Mr. Misra made a strenuous effort to sustain the finding of the tribunal that the enquiry on the first charge was unfair. We have come to the conclusion that the said finding cannot be supported in law.As soon as we reach the conclusion that the enquiry held in respect of first charge is not shown to be unfair, it follows that the finding has gone against Gupta and on that finding, the appellant is entitled to terminate his services by way of dismissal. Mr. Misra attempted to argue that the order of dismissal is so unduly severe that that itself may make the termination illegal. We are not prepared to accept this argument. It is true that Courts do come across cases where the dismissal of an employee may appear to the Court to be so unreasonably severe as to give rise to an inference that it is a case of victimization, but this inference cannot arise in every case where the Court feels that the order is a little too severe. In the circumstances of this case, we see no justification for the contention that there has been a case ofappears that on the second charge when the enquiry commenced Gupta refused to answer any question on the ground that unless evidence was led in support of the charge, he was not bound to make any answer. Technically that is true, and technically the enquiry can be said to be defective; but the substance of the matter was that Gupta did not comply with the order which called him to work the Mau market on 17 September, 1958, and under the service rules, it was a case of not doing duty without leave or without justification. However, we do not think it necessary to pursue this matter any further, because in our opinion, the appellant was justified in dismissing Gupta even on the proof of the first charge which has been duly and properly investigated.
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L. Hazari Mal Kuthiala Vs. The Income-Tax Officer, Special Circle, Ambala Cantt | be made at any stage of the proceedings" etc., clearly indicate this. Sub-section (7A) is, however, not applicable here, because in respect of the cognate sub-section of the Indian Income-tax Act it was ruled by this Court that it could apply to a pending case only. It was to overcome this lacuna that the Explanation was added by the Indian Parliament. This amendment came in 1956, and the Patiala Act did not include a similar Explanation, because prior to 1956 the question had not arisen. There is one other difference between the Patiala Act and the Indian Act. Whereas sub-sec, (7A) was introduced in the Indian Act by an amendment, the corresponding sub-section was enacted at the same time as the rest of the Patiala Act.10. Now, it is quite clear that a case which was not pending at the time of transfer could not be transferred under sub-sec. (7A) of S. 5 of the Patiala Act.The same reasoning must be applied to that sub-section, as it was applied to the Indian Act. Learned counsel referred us to an affidavit by the Under Secretary, Central Board of Revenue reproduced in Pannalal Binjraj v. Union of India 1957 SCR 233 at p. 246 : ( (S) AIR 1957 SC 397 at p. 404) which stated the reason for the introduction of sub-sec. (7A). It is a little difficult to accept the affidavit as an aid to find out the intention why a particular law or amendment was enacted, more so where the affidavit concerns quite another Act of a different legislature. It is however, pertinent to remember that sub-sec. (7A) expressly gave the power to transfer pending cases, but said nothing about cases which were not pending. The power to transfer such cases before they came into being must, therefore, be found in some other enactment. The Department contends that it would fall within sub-sec. (5) of S. 5, and points out that this Court was not required to consider that sub-section because the transfer of the cases dealt with in the Bidi Supply cases 1956 SCR 267 : ( (S) AIR 1956 SC 479 ) was by an authority not named in sub-sec. (5) and therefore the transfer in those instances could not be held to be under that sub-section. The Department contends that the Commissioner of Income-tax is mentioned both in sub-sec. (5) and sub-sec. (7A) and could derive his power from one or the other or both.11. The short question thus in whether an individual case which was not a pending case could be transferred from one income-tax Officer to another under sub-sec. (5) of S. 5 of the Patiala Act, which was kept alive for assessment and reassessments relating to previous assessment years. Mr. Palkhiwala argues that the words of the sub-section "such persons or classes of persons or of such income of classes of income or in respect of such areas" denote, by the plural employed, a dealing with a group rather than an individual case. He further contends that if individual cases were held to be included in sub-sec. (5), then sub-sec. (7A) would be unnecessary an otiose. He argues that harmonious construction thus requires that the two sub-sections must be taken to cover different situations.12. The last argument is hardly open after the decision of this Court adverted to already. If pending cases along were with-in sub-sec. (7A), those cases which were not pending could not be said to have been provided for, there. There is thus no overlapping at least in so far as cases not pending were concerned. An arrangement for their disposal would be a subject of distribution of work and nothing much turns upon the employment of the plural number, because the plural includes the singular. Indeed, a single case might well be in a class separate from others. Duplication of powers is sometimes noticeable in statutes, and does not destroy the effectiveness of the power conferred. Section 24 of the Civil Procedure Code dealing with transfers of cases and the provisions of the Letters Patent of the High Court are instances in point. If a particular action is valid under one section, it cannot be rendered invalid because the identical action can also be taken under another section, and it makes no difference if the two empowering provisions are in the same statute. In any event, sub-sec. (7A) would cut down sub-sec. (5) only to the extent the former provides, and it has been held that it was confined to pending cases only. Sub-section (5) was thus available for cases which were not pending and the case which was the subject-matter of the Commissioners order was not a pending case.13. Mr. Palkhivala contends that sub-sec. (5) merely enables distribution of work, and does not deal with transfers. But where a case is not pending, an order relating to it may take the form of transfer or an arrangement for its disposal. There is nothing to prevent the Commissioner, acting under sub-sec. (5), to arrange that the case of an assessee shall be disposed of by a particular Income-tax Officer. The words of sub-sec, (5) that "Income-tax Officers shall perform their functions in respect of such persons . . . as the Commissioner . . . may . . . direct" only show that the Commissioner may direct that one Income-tax Officer shall not, and another Income-tax Officer shall, perform the functions in respect of such and such person or persons. The plural including the singular, the order of the Commissioner was valid, because he arranged and distributed work, and did not seek to transfer any case. It is however contended that this renders sub-sec. (7A) otiose. In our opinion, it does not, Special provision for transfer of pending cases is all that is provided there, and if such a transfer takes place the provisions of sub-sec. (7A) will be invoked. Those provisions are to be read as not prejudicing the general powers granted by sub-sec. (5) and vice versa. | 0[ds]This argument, however, loses point, because the exercise of a power will, be referable to a jurisdiction which confers validity upon it and not to a jurisdiction under which it will be nugatory.This principle is well-settled. See Petamber Vajirshet v. Dhondu Navlapa ILR 12 Bom 486 at p.perhaps, is correct. If the Commissioner did not act under the Patiala law at all, which enjoined consultation with the Minister-in-charge and purported to act only under the Indian law, his mind would not be drawn to the need for consultation with the Central Board of Revenue. Even so, we do not think that the failure to consult the Central Board of Revenue renders the order of the Commissioner ineffective. The provision about consultation must be treated as directory, on the principles accepted by this Court in State of U.P. v. Manbodhan Lal Srivastava, 1958 SCR 533 : ( (S) AIR 1957 SC 912 ) and K. S. Srinivasan v. Union of India 1958 SCR 1295 at p. 1321 : (AIR 1958 SC 419 at p. 430).In the former case, this Court dealt with the provisions of Art. 320 (3)(c) of the Constitution, under which consultation with the Union Public Service Commission was necessary. This Court relied upon the decision of the Privy Council in Montreal Street Railway Co. v. Normandin 1917 ACview of what has been said in these cases the failure to consult the Central Board of Revenue does not destroy the effectiveness of the order passed by the Commissioner, however wrong it might be from the administrative point of view. The power which the Commissioner had, was entrusted to him, and there was only a duty to consult the Central Board of Revenue. The failure to conform to the duty did not rob the Commissioner of the power which he exercised, and the exercise of the power cannot, therefore, be questioned by the assessee on the ground of failure to consult the Central Board of Revenue, provision regarding which must be regarded as laying down administrative control and as being directory.Now, it is quite clear that a case which was not pending at the time of transfer could not be transferred under sub-sec. (7A) of S. 5 of the Patiala Act.The same reasoning must be applied to that sub-section, as it was applied to the Indianis a little difficult to accept the affidavit as an aid to find out the intention why a particular law or amendment was enacted, more so where the affidavit concerns quite another Act of a different legislature. It is however, pertinent to remember that sub-sec. (7A) expressly gave the power to transfer pending cases, but said nothing about cases which were not pending. The power to transfer such cases before they came into being must, therefore, be found in some otherpending cases along were with-in sub-sec. (7A), those cases which were not pending could not be said to have been provided for, there. There is thus no overlapping at least in so far as cases not pending were concerned. An arrangement for their disposal would be a subject of distribution of work and nothing much turns upon the employment of the plural number, because the plural includes the singular. Indeed, a single case might well be in a class separate from others. Duplication of powers is sometimes noticeable in statutes, and does not destroy the effectiveness of the power conferred. Section 24 of the Civil Procedure Code dealing with transfers of cases and the provisions of the Letters Patent of the High Court are instances in point. If a particular action is valid under one section, it cannot be rendered invalid because the identical action can also be taken under another section, and it makes no difference if the two empowering provisions are in the same statute. In any event, sub-sec. (7A) would cut down sub-sec. (5) only to the extent the former provides, and it has been held that it was confined to pending cases only. Sub-section (5) was thus available for cases which were not pending and the case which was the subject-matter of the Commissioners order was not a pendingour opinion, it does not, Special provision for transfer of pending cases is all that is provided there, and if such a transfer takes place the provisions of sub-sec. (7A) will be invoked. Those provisions are to be read as not prejudicing the general powers granted by sub-sec. (5) and vice versa. | 0 | 3,477 | 837 | ### Instruction:
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be made at any stage of the proceedings" etc., clearly indicate this. Sub-section (7A) is, however, not applicable here, because in respect of the cognate sub-section of the Indian Income-tax Act it was ruled by this Court that it could apply to a pending case only. It was to overcome this lacuna that the Explanation was added by the Indian Parliament. This amendment came in 1956, and the Patiala Act did not include a similar Explanation, because prior to 1956 the question had not arisen. There is one other difference between the Patiala Act and the Indian Act. Whereas sub-sec, (7A) was introduced in the Indian Act by an amendment, the corresponding sub-section was enacted at the same time as the rest of the Patiala Act.10. Now, it is quite clear that a case which was not pending at the time of transfer could not be transferred under sub-sec. (7A) of S. 5 of the Patiala Act.The same reasoning must be applied to that sub-section, as it was applied to the Indian Act. Learned counsel referred us to an affidavit by the Under Secretary, Central Board of Revenue reproduced in Pannalal Binjraj v. Union of India 1957 SCR 233 at p. 246 : ( (S) AIR 1957 SC 397 at p. 404) which stated the reason for the introduction of sub-sec. (7A). It is a little difficult to accept the affidavit as an aid to find out the intention why a particular law or amendment was enacted, more so where the affidavit concerns quite another Act of a different legislature. It is however, pertinent to remember that sub-sec. (7A) expressly gave the power to transfer pending cases, but said nothing about cases which were not pending. The power to transfer such cases before they came into being must, therefore, be found in some other enactment. The Department contends that it would fall within sub-sec. (5) of S. 5, and points out that this Court was not required to consider that sub-section because the transfer of the cases dealt with in the Bidi Supply cases 1956 SCR 267 : ( (S) AIR 1956 SC 479 ) was by an authority not named in sub-sec. (5) and therefore the transfer in those instances could not be held to be under that sub-section. The Department contends that the Commissioner of Income-tax is mentioned both in sub-sec. (5) and sub-sec. (7A) and could derive his power from one or the other or both.11. The short question thus in whether an individual case which was not a pending case could be transferred from one income-tax Officer to another under sub-sec. (5) of S. 5 of the Patiala Act, which was kept alive for assessment and reassessments relating to previous assessment years. Mr. Palkhiwala argues that the words of the sub-section "such persons or classes of persons or of such income of classes of income or in respect of such areas" denote, by the plural employed, a dealing with a group rather than an individual case. He further contends that if individual cases were held to be included in sub-sec. (5), then sub-sec. (7A) would be unnecessary an otiose. He argues that harmonious construction thus requires that the two sub-sections must be taken to cover different situations.12. The last argument is hardly open after the decision of this Court adverted to already. If pending cases along were with-in sub-sec. (7A), those cases which were not pending could not be said to have been provided for, there. There is thus no overlapping at least in so far as cases not pending were concerned. An arrangement for their disposal would be a subject of distribution of work and nothing much turns upon the employment of the plural number, because the plural includes the singular. Indeed, a single case might well be in a class separate from others. Duplication of powers is sometimes noticeable in statutes, and does not destroy the effectiveness of the power conferred. Section 24 of the Civil Procedure Code dealing with transfers of cases and the provisions of the Letters Patent of the High Court are instances in point. If a particular action is valid under one section, it cannot be rendered invalid because the identical action can also be taken under another section, and it makes no difference if the two empowering provisions are in the same statute. In any event, sub-sec. (7A) would cut down sub-sec. (5) only to the extent the former provides, and it has been held that it was confined to pending cases only. Sub-section (5) was thus available for cases which were not pending and the case which was the subject-matter of the Commissioners order was not a pending case.13. Mr. Palkhivala contends that sub-sec. (5) merely enables distribution of work, and does not deal with transfers. But where a case is not pending, an order relating to it may take the form of transfer or an arrangement for its disposal. There is nothing to prevent the Commissioner, acting under sub-sec. (5), to arrange that the case of an assessee shall be disposed of by a particular Income-tax Officer. The words of sub-sec, (5) that "Income-tax Officers shall perform their functions in respect of such persons . . . as the Commissioner . . . may . . . direct" only show that the Commissioner may direct that one Income-tax Officer shall not, and another Income-tax Officer shall, perform the functions in respect of such and such person or persons. The plural including the singular, the order of the Commissioner was valid, because he arranged and distributed work, and did not seek to transfer any case. It is however contended that this renders sub-sec. (7A) otiose. In our opinion, it does not, Special provision for transfer of pending cases is all that is provided there, and if such a transfer takes place the provisions of sub-sec. (7A) will be invoked. Those provisions are to be read as not prejudicing the general powers granted by sub-sec. (5) and vice versa.
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This argument, however, loses point, because the exercise of a power will, be referable to a jurisdiction which confers validity upon it and not to a jurisdiction under which it will be nugatory.This principle is well-settled. See Petamber Vajirshet v. Dhondu Navlapa ILR 12 Bom 486 at p.perhaps, is correct. If the Commissioner did not act under the Patiala law at all, which enjoined consultation with the Minister-in-charge and purported to act only under the Indian law, his mind would not be drawn to the need for consultation with the Central Board of Revenue. Even so, we do not think that the failure to consult the Central Board of Revenue renders the order of the Commissioner ineffective. The provision about consultation must be treated as directory, on the principles accepted by this Court in State of U.P. v. Manbodhan Lal Srivastava, 1958 SCR 533 : ( (S) AIR 1957 SC 912 ) and K. S. Srinivasan v. Union of India 1958 SCR 1295 at p. 1321 : (AIR 1958 SC 419 at p. 430).In the former case, this Court dealt with the provisions of Art. 320 (3)(c) of the Constitution, under which consultation with the Union Public Service Commission was necessary. This Court relied upon the decision of the Privy Council in Montreal Street Railway Co. v. Normandin 1917 ACview of what has been said in these cases the failure to consult the Central Board of Revenue does not destroy the effectiveness of the order passed by the Commissioner, however wrong it might be from the administrative point of view. The power which the Commissioner had, was entrusted to him, and there was only a duty to consult the Central Board of Revenue. The failure to conform to the duty did not rob the Commissioner of the power which he exercised, and the exercise of the power cannot, therefore, be questioned by the assessee on the ground of failure to consult the Central Board of Revenue, provision regarding which must be regarded as laying down administrative control and as being directory.Now, it is quite clear that a case which was not pending at the time of transfer could not be transferred under sub-sec. (7A) of S. 5 of the Patiala Act.The same reasoning must be applied to that sub-section, as it was applied to the Indianis a little difficult to accept the affidavit as an aid to find out the intention why a particular law or amendment was enacted, more so where the affidavit concerns quite another Act of a different legislature. It is however, pertinent to remember that sub-sec. (7A) expressly gave the power to transfer pending cases, but said nothing about cases which were not pending. The power to transfer such cases before they came into being must, therefore, be found in some otherpending cases along were with-in sub-sec. (7A), those cases which were not pending could not be said to have been provided for, there. There is thus no overlapping at least in so far as cases not pending were concerned. An arrangement for their disposal would be a subject of distribution of work and nothing much turns upon the employment of the plural number, because the plural includes the singular. Indeed, a single case might well be in a class separate from others. Duplication of powers is sometimes noticeable in statutes, and does not destroy the effectiveness of the power conferred. Section 24 of the Civil Procedure Code dealing with transfers of cases and the provisions of the Letters Patent of the High Court are instances in point. If a particular action is valid under one section, it cannot be rendered invalid because the identical action can also be taken under another section, and it makes no difference if the two empowering provisions are in the same statute. In any event, sub-sec. (7A) would cut down sub-sec. (5) only to the extent the former provides, and it has been held that it was confined to pending cases only. Sub-section (5) was thus available for cases which were not pending and the case which was the subject-matter of the Commissioners order was not a pendingour opinion, it does not, Special provision for transfer of pending cases is all that is provided there, and if such a transfer takes place the provisions of sub-sec. (7A) will be invoked. Those provisions are to be read as not prejudicing the general powers granted by sub-sec. (5) and vice versa.
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Sahodara Devi & Ors Vs. Government Of India & Anr | the holder, grant, with the approval of the Central Government or such other authority as the Central Government may appoint for this purpose, a lease of the said land in the form set out in Schedule VII." In this Rule, thus, the power to grant a lease for regularisation of old grants has been given to the Military Estates officer by using the word "may", and the power is further subject to the approval of the Central Government or such other authority as the Central Government may appoint for the purpose. In view of this language used, we think that the High Court was quite right in holding that this rule does not envisage a mandatory direction to the Military Estates Officer to grant a lease in all cases where the question of regularisation of old grants arises. Normally, the word "may" is used to grant a discretion and not to indicate a mandatory direction. Had the intention been that the Military Estates Officer must grant a lease in all cases, the word used would have been "shall" instead of "may". It is true that the word "may", in some context, has been interpreted as containing a mandatory direction and the authority given the power has to exercise that power unless there be special reasons. Such a case came before this Court in Sardar Govindrao v. State of Madhya Pradesh, (1965) 1SCR 678 = (AIR 1965 SC 1222 ). That was a case where a rule relating to grant of money or pension was sought to be enforced. This Court held:-"This is an instance where, on the existence of the condition precedent, the grant of money or pension becomes obligatory on the Government notwithstanding that in Section 5 (2) the Government has been given the power to pass such orders as it deems fit and in sub-section (3) the word "may" is used. The word "may" is often read as "shall" or "must" when there is something in the nature of the thing to be done which makes it the duty of the person on whom the power is conferred to exercise the power. Section 5 (2) is discretionary because it takes into account all cases which may be brought before the Government of persons claiming to be adversely affected by the provisions of Section 3 of the Act. Many such persons may have no claims at all although they may in a general way be said to have been adversely affected by Section 3. If the power was to be discretionary in every case there was no need to enact further than sub-section (2). The reason why two sub-sections were enacted is not far to seek. That Government may have to select some for consideration under sub-section (3) and some under Section 7 and may have to dismiss the claims of some others requires the conferment of a discretion and sub-section (2) does no more than to give that discretion to Government and the word "may" in that sub-section bears its ordinary meaning. The word "may" in sub-section (3) has, however, a different purport. Under that subsection, Government must, if it is satisfied that an institution or service must be continued or that there is a descendant of a former ruling chief, grant money or pension to the institution or service or to the descendant of the former ruling chief, as the case may be. Of course, it need not make a grant if the person claiming is not a descendant of a former ruling chief or there is other reasonable ground not to grant money or pension. But, except in those cases where there are good grounds for not granting the pension. Government is bound to make a grant to those who fulfil the required condition and the word "may" in the third sub-section though apparently discretionary has to be read as "must"It may be noticed that in that case, the word "may" as used in the general sub-section (2) was not held to indicate a mandatory direction. It was only in sub-s. (3), because of the special context, that the Court held that the word "may" was equivalent to "shall" or "must". In the case before us, rule 27 only confers a power in general on the Military Estates Officer to grant leases and, by using the word "may", it clearly gives him discretion to grant it in suitable cases. There is further the circumstance that the exercise of the power by the Military Estates Officer has been made subject to the approval of the Central Government or such other authority as the Central Government may appoint for that purpose. If the power had to be exercised by the Military Estates Officer in all cases, its being made subject to the approval of another authority would be meaningless. When a rule envisages approval of the processed action of the Military Estates officer, it also implies that his action can be disapproved. This approval or disapproval will necessarily be at the discretion of the Central Government or the authority appointed by it for that purpose. The power of the Military Estates Officer being subject to such discretionary approval or disapproval of another authority cannot possibly be held to be required to be exercised in all cases without any discretion. The Division Bench was, therefore, perfectly correct in holding that the power under R. 27 is a discretionary power, and both the Military Estates Officer as well as the Central Government or the other authority appointed by it for that purpose in exercising their power have the discretion in suitable cases not to proceed under this rule. The High Court in directing a reconsideration of the casein accordance with law, was, therefore, quite correct, so that the application of the appellants must be decided afresh, after keeping in view the principle that the power to grant a lease under rule 27 is discretionary; but the refusal should only be in suitable cases where sufficient reasons exist for that purpose. | 0[ds]In this Rule, thus, the power to grant a lease for regularisation of old grants has been given to the Military Estates officer by using the word "may", and the power is further subject to the approval of the Central Government or such other authority as the Central Government may appoint for the purpose. In view of this language used, we think that the High Court was quite right in holding that this rule does not envisage a mandatory direction to the Military Estates Officer to grant a lease in all cases where the question of regularisation of old grants arises. Normally, the word "may" is used to grant a discretion and not to indicate a mandatory direction. Had the intention been that the Military Estates Officer must grant a lease in all cases, the word used would have been "shall" instead of "may". It is true that the word "may", in some context, has been interpreted as containing a mandatory direction and the authority given the power has to exercise that power unless there be specialreason why two sub-sections were enacted is not far to seek. That Government may have to select some for consideration under sub-section (3) and some under Section 7 and may have to dismiss the claims of some others requires the conferment of a discretion and sub-section (2) does no more than to give that discretion to Government and the word "may" in that sub-section bears its ordinary meaning. The word "may" in sub-section (3) has, however, a different purport. Under that subsection, Government must, if it is satisfied that an institution or service must be continued or that there is a descendant of a former ruling chief, grant money or pension to the institution or service or to the descendant of the former ruling chief, as the case may be. Of course, it need not make a grant if the person claiming is not a descendant of a former ruling chief or there is other reasonable ground not to grant money or pension. But, except in those cases where there are good grounds for not granting the pension. Government is bound to make a grant to those who fulfil the required condition and the word "may" in the third sub-section though apparently discretionary has to be read asmay be noticed that in that case, the word "may" as used in the general sub-section (2) was not held to indicate a mandatory direction. It was only in sub-s. (3), because of the special context, that the Court held that the word "may" was equivalent to "shall" or "must". In the case before us, rule 27 only confers a power in general on the Military Estates Officer to grant leases and, by using the word "may", it clearly gives him discretion to grant it in suitable cases. There is further the circumstance that the exercise of the power by the Military Estates Officer has been made subject to the approval of the Central Government or such other authority as the Central Government may appoint for that purpose. If the power had to be exercised by the Military Estates Officer in all cases, its being made subject to the approval of another authority would be meaningless. When a rule envisages approval of the processed action of the Military Estates officer, it also implies that his action can be disapproved. This approval or disapproval will necessarily be at the discretion of the Central Government or the authority appointed by it for that purpose. The power of the Military Estates Officer being subject to such discretionary approval or disapproval of another authority cannot possibly be held to be required to be exercised in all cases without any discretion. The Division Bench was, therefore, perfectly correct in holding that the power under R. 27 is a discretionary power, and both the Military Estates Officer as well as the Central Government or the other authority appointed by it for that purpose in exercising their power have the discretion in suitable cases not to proceed under this rule. The High Court in directing a reconsideration of the casein accordance with law, was, therefore, quite correct, so that the application of the appellants must be decided afresh, after keeping in view the principle that the power to grant a lease under rule 27 is discretionary; but the refusal should only be in suitable cases where sufficient reasons exist for that purpose. | 0 | 2,391 | 832 | ### 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 holder, grant, with the approval of the Central Government or such other authority as the Central Government may appoint for this purpose, a lease of the said land in the form set out in Schedule VII." In this Rule, thus, the power to grant a lease for regularisation of old grants has been given to the Military Estates officer by using the word "may", and the power is further subject to the approval of the Central Government or such other authority as the Central Government may appoint for the purpose. In view of this language used, we think that the High Court was quite right in holding that this rule does not envisage a mandatory direction to the Military Estates Officer to grant a lease in all cases where the question of regularisation of old grants arises. Normally, the word "may" is used to grant a discretion and not to indicate a mandatory direction. Had the intention been that the Military Estates Officer must grant a lease in all cases, the word used would have been "shall" instead of "may". It is true that the word "may", in some context, has been interpreted as containing a mandatory direction and the authority given the power has to exercise that power unless there be special reasons. Such a case came before this Court in Sardar Govindrao v. State of Madhya Pradesh, (1965) 1SCR 678 = (AIR 1965 SC 1222 ). That was a case where a rule relating to grant of money or pension was sought to be enforced. This Court held:-"This is an instance where, on the existence of the condition precedent, the grant of money or pension becomes obligatory on the Government notwithstanding that in Section 5 (2) the Government has been given the power to pass such orders as it deems fit and in sub-section (3) the word "may" is used. The word "may" is often read as "shall" or "must" when there is something in the nature of the thing to be done which makes it the duty of the person on whom the power is conferred to exercise the power. Section 5 (2) is discretionary because it takes into account all cases which may be brought before the Government of persons claiming to be adversely affected by the provisions of Section 3 of the Act. Many such persons may have no claims at all although they may in a general way be said to have been adversely affected by Section 3. If the power was to be discretionary in every case there was no need to enact further than sub-section (2). The reason why two sub-sections were enacted is not far to seek. That Government may have to select some for consideration under sub-section (3) and some under Section 7 and may have to dismiss the claims of some others requires the conferment of a discretion and sub-section (2) does no more than to give that discretion to Government and the word "may" in that sub-section bears its ordinary meaning. The word "may" in sub-section (3) has, however, a different purport. Under that subsection, Government must, if it is satisfied that an institution or service must be continued or that there is a descendant of a former ruling chief, grant money or pension to the institution or service or to the descendant of the former ruling chief, as the case may be. Of course, it need not make a grant if the person claiming is not a descendant of a former ruling chief or there is other reasonable ground not to grant money or pension. But, except in those cases where there are good grounds for not granting the pension. Government is bound to make a grant to those who fulfil the required condition and the word "may" in the third sub-section though apparently discretionary has to be read as "must"It may be noticed that in that case, the word "may" as used in the general sub-section (2) was not held to indicate a mandatory direction. It was only in sub-s. (3), because of the special context, that the Court held that the word "may" was equivalent to "shall" or "must". In the case before us, rule 27 only confers a power in general on the Military Estates Officer to grant leases and, by using the word "may", it clearly gives him discretion to grant it in suitable cases. There is further the circumstance that the exercise of the power by the Military Estates Officer has been made subject to the approval of the Central Government or such other authority as the Central Government may appoint for that purpose. If the power had to be exercised by the Military Estates Officer in all cases, its being made subject to the approval of another authority would be meaningless. When a rule envisages approval of the processed action of the Military Estates officer, it also implies that his action can be disapproved. This approval or disapproval will necessarily be at the discretion of the Central Government or the authority appointed by it for that purpose. The power of the Military Estates Officer being subject to such discretionary approval or disapproval of another authority cannot possibly be held to be required to be exercised in all cases without any discretion. The Division Bench was, therefore, perfectly correct in holding that the power under R. 27 is a discretionary power, and both the Military Estates Officer as well as the Central Government or the other authority appointed by it for that purpose in exercising their power have the discretion in suitable cases not to proceed under this rule. The High Court in directing a reconsideration of the casein accordance with law, was, therefore, quite correct, so that the application of the appellants must be decided afresh, after keeping in view the principle that the power to grant a lease under rule 27 is discretionary; but the refusal should only be in suitable cases where sufficient reasons exist for that purpose.
### Response:
0
### Explanation:
In this Rule, thus, the power to grant a lease for regularisation of old grants has been given to the Military Estates officer by using the word "may", and the power is further subject to the approval of the Central Government or such other authority as the Central Government may appoint for the purpose. In view of this language used, we think that the High Court was quite right in holding that this rule does not envisage a mandatory direction to the Military Estates Officer to grant a lease in all cases where the question of regularisation of old grants arises. Normally, the word "may" is used to grant a discretion and not to indicate a mandatory direction. Had the intention been that the Military Estates Officer must grant a lease in all cases, the word used would have been "shall" instead of "may". It is true that the word "may", in some context, has been interpreted as containing a mandatory direction and the authority given the power has to exercise that power unless there be specialreason why two sub-sections were enacted is not far to seek. That Government may have to select some for consideration under sub-section (3) and some under Section 7 and may have to dismiss the claims of some others requires the conferment of a discretion and sub-section (2) does no more than to give that discretion to Government and the word "may" in that sub-section bears its ordinary meaning. The word "may" in sub-section (3) has, however, a different purport. Under that subsection, Government must, if it is satisfied that an institution or service must be continued or that there is a descendant of a former ruling chief, grant money or pension to the institution or service or to the descendant of the former ruling chief, as the case may be. Of course, it need not make a grant if the person claiming is not a descendant of a former ruling chief or there is other reasonable ground not to grant money or pension. But, except in those cases where there are good grounds for not granting the pension. Government is bound to make a grant to those who fulfil the required condition and the word "may" in the third sub-section though apparently discretionary has to be read asmay be noticed that in that case, the word "may" as used in the general sub-section (2) was not held to indicate a mandatory direction. It was only in sub-s. (3), because of the special context, that the Court held that the word "may" was equivalent to "shall" or "must". In the case before us, rule 27 only confers a power in general on the Military Estates Officer to grant leases and, by using the word "may", it clearly gives him discretion to grant it in suitable cases. There is further the circumstance that the exercise of the power by the Military Estates Officer has been made subject to the approval of the Central Government or such other authority as the Central Government may appoint for that purpose. If the power had to be exercised by the Military Estates Officer in all cases, its being made subject to the approval of another authority would be meaningless. When a rule envisages approval of the processed action of the Military Estates officer, it also implies that his action can be disapproved. This approval or disapproval will necessarily be at the discretion of the Central Government or the authority appointed by it for that purpose. The power of the Military Estates Officer being subject to such discretionary approval or disapproval of another authority cannot possibly be held to be required to be exercised in all cases without any discretion. The Division Bench was, therefore, perfectly correct in holding that the power under R. 27 is a discretionary power, and both the Military Estates Officer as well as the Central Government or the other authority appointed by it for that purpose in exercising their power have the discretion in suitable cases not to proceed under this rule. The High Court in directing a reconsideration of the casein accordance with law, was, therefore, quite correct, so that the application of the appellants must be decided afresh, after keeping in view the principle that the power to grant a lease under rule 27 is discretionary; but the refusal should only be in suitable cases where sufficient reasons exist for that purpose.
|
Bellachi (Dead) by LR Vs. Pakeeran | ordinarily are binding on the High Court while exercising its jurisdiction under Section 100 of the Code of Civil Procedure. This Court in Afsar Sheikh and Anr. Vs. Soleman Bibi and Ors. reported in [1976 (2) SCC 142 ] held as under: "4. In his written statement, Afsar defendant denied the allegations of fraud and misrepresentation. He averred that his grandmother was the sister of the plaintiffs mother. The defendants father died when he was an infant. The plaintiff brought him up as a son. Since his very infancy, the defendant has been living with the plaintiff, managing his affairs and treating him as his father. The defendant further stated that the plaintiff has transferred 10 to 12 bighas of land to his natural son and an equal area to his second wife. Out of love and affection, the plaintiff conferred a similar benefit on the defendant and voluntarily executed the hiba-bil-ewaz after receiving from the done a dhoti as a symbolic consideration therefor. He denied that the plaintiff at the time of the gift was too old and infirm. According to him, the plaintiff was not more than 75 years of age. He further averred that he was in possession of the suit lands ever since the execution of the hiba." It was observed: "20. It is well-settled that a question whether a person was in a position to dominate the will of another and procured a certain deed by undue influence, is a question of fact, and a finding thereon is a finding of fact, and if arrived at fairly, in accordance with the procedure prescribed. is not liable to be reopened in second appeal (Satgur Prasad v. Har Narain Das; Ladli Prasad Jaiswal v. Karnal Distillery Co. Ltd.)." 14. It is not the case of the appellant that the finding of the first appellate court on the question of fraud, undue influence etc. is vitiated by any illegality, omission or error or defect as envisaged under Section 100 of Code of Civil Procedure.15. Section 16 of the Indian Contract Act provides for as to what constitutes undue influence. Relationship between the parties so as to enable one of them to dominate the will of the other is a sine qua non for constitution of undue influence. Findings of fact as noticed hereinbefore have been arrived at by both the trial judge as also the first appellate court that the respondent was not in a position to dominate the plaintiffs will.16. In a given case it is possible to hold that when an illiterate, pardanashin woman executes a deed of sale, the burden would be on the vendee to prove that it was the deed of sale was a genuine document. It is, however, a registered document. It carries with it a presumption that it was executed in accordance with law. Again a concurrent finding of fact has been arrived at that she was not an illiterate woman or she was incapable of understanding as to what she had done.17. Mr. Dinesh has placed strong reliance upon a decision of this Court in Mst. Sethani Vs. Bhana reported in [1993 Supp. (4) SCC 639] wherein having regard to the fact had been arrived at from the courts below, it was held: "4. The facts are so glaring, still the onus to prove the issue has been over-emphasised. It is true that the initial onus to prove undue influence was on the plaintiff-appellant, but the onus, in the facts and circumstances of the case, was easily discharged. It is the respondent who had obtained the sale deed in his favour way back on April 1, 1963 by a registered sale deed, which saw the light at a late stage of the trial. From the certified copy thereof it was evident that no consideration passed at the time of the sale. Nobody from the registration office was examined to explain the sale. No evidence was led by the respondent to discharge the onus that the sale deed was executed under no undue influence, even though the vendor was old, blind, illiterate and a tribal woman totally at the mercy of the respondent, with whom she was living till her death. The parties were so situated that Bhana-respondent was in a position to dominate the will of Putlibai and was in a position to obtain an unfair advantage over her. It is also in evidence that Putlibai was dependent on the respondent. The trial court had given cogent reasons to come to the finding that the sale deed was vitiated on account of the condition in which Putlibai was put due to her relationship with Bhana-respondent, as well as the manner and nature of the transaction." 18. The factual matrix involved in the aforementioned case was, thus, absolutely different. Furthermore both the courts below have held that the plaint does not contained any particulars of undue influence, fraud etc. The law does not envisage raising of a presumption in favour of undue influence. A party alleging the same must prove the same subject of course to just exceptions. In M. Rangasamy Vs. Rengammal and Ors. [(2003) 7 SCC 683] , this court has held as under:- "Further, a perusal of the plaint shows that the execution of Exhibits B-6 and B-7 has, in fact, not been disputed by the plaintiffs. The case set up by them is that the first defendant, exercising dominating influence over his grandmother, got the two settlement deeds executed from her exploiting her old age, dim eyesight and mental condition. It has been further pleaded that the first defendant had a fiduciary relationship with his grandmother and, therefore, though normally it would be for a person who pleads undue influence to establish the said fact, but in view of this relationship, it is for the first defendant to prove that the gift deeds were the result of free exercise of independent will by the executant." 19. The said decision will apply in all fours in this case. | 0[ds]14. It is not the case of the appellant that the finding of the first appellate court on the question of fraud, undue influence etc. is vitiated by any illegality, omission or error or defect as envisaged under Section 100 of Code of Civil Procedure.15. Section 16 of the Indian Contract Act provides for as to what constitutes undue influence. Relationship between the parties so as to enable one of them to dominate the will of the other is a sine qua non for constitution of undue influence. Findings of fact as noticed hereinbefore have been arrived at by both the trial judge as also the first appellate court that the respondent was not in a position to dominate the plaintiffs will.16. In a given case it is possible to hold that when an illiterate, pardanashin woman executes a deed of sale, the burden would be on the vendee to prove that it was the deed of sale was a genuine document. It is, however, a registered document. It carries with it a presumption that it was executed in accordance with law. Again a concurrent finding of fact has been arrived at that she was not an illiterate woman or she was incapable of understanding as to what she had done.17. Mr. Dinesh has placed strong reliance upon a decision of this Court in Mst. Sethani Vs. Bhana reported in [1993 Supp. (4) SCC 639] wherein having regard to the fact had been arrived at from the courts below, it wasThe facts are so glaring, still the onus to prove the issue has beenIt is true that the initial onus to prove undue influence was on thebut the onus, in the facts and circumstances of the case, was easily discharged. It is the respondent who had obtained the sale deed in his favour way back on April 1, 1963 by a registered sale deed, which saw the light at a late stage of the trial. From the certified copy thereof it was evident that no consideration passed at the time of the sale. Nobody from the registration office was examined to explain the sale. No evidence was led by the respondent to discharge the onus that the sale deed was executed under no undue influence, even though the vendor was old, blind, illiterate and a tribal woman totally at the mercy of the respondent, with whom she was living till her death. The parties were so situated thatwas in a position to dominate the will of Putlibai and was in a position to obtain an unfair advantage over her. It is also in evidence that Putlibai was dependent on the respondent. The trial court had given cogent reasons to come to the finding that the sale deed was vitiated on account of the condition in which Putlibai was put due to her relationship withas well as the manner and nature of thefactual matrix involved in the aforementioned case was, thus, absolutely different.Furthermore both the courts below have held that the plaint does not contained any particulars of undue influence, fraud etc. The law does not envisage raising of a presumption in favour of undue influence. A party alleging the same must prove the same subject of course to just exceptions. In M. Rangasamy Vs. Rengammal and Ors. [(2003) 7 SCC 683] , this court has held asa perusal of the plaint shows that the execution of Exhibitshas, in fact, not been disputed by the plaintiffs. The case set up by them is that the first defendant, exercising dominating influence over his grandmother, got the two settlement deeds executed from her exploiting her old age, dim eyesight and mental condition. It has been further pleaded that the first defendant had a fiduciary relationship with his grandmother and, therefore, though normally it would be for a person who pleads undue influence to establish the said fact, but in view of this relationship, it is for the first defendant to prove that the gift deeds were the result of free exercise of independent will by thesaid decision will apply in all fours in this case. | 0 | 2,443 | 748 | ### 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:
ordinarily are binding on the High Court while exercising its jurisdiction under Section 100 of the Code of Civil Procedure. This Court in Afsar Sheikh and Anr. Vs. Soleman Bibi and Ors. reported in [1976 (2) SCC 142 ] held as under: "4. In his written statement, Afsar defendant denied the allegations of fraud and misrepresentation. He averred that his grandmother was the sister of the plaintiffs mother. The defendants father died when he was an infant. The plaintiff brought him up as a son. Since his very infancy, the defendant has been living with the plaintiff, managing his affairs and treating him as his father. The defendant further stated that the plaintiff has transferred 10 to 12 bighas of land to his natural son and an equal area to his second wife. Out of love and affection, the plaintiff conferred a similar benefit on the defendant and voluntarily executed the hiba-bil-ewaz after receiving from the done a dhoti as a symbolic consideration therefor. He denied that the plaintiff at the time of the gift was too old and infirm. According to him, the plaintiff was not more than 75 years of age. He further averred that he was in possession of the suit lands ever since the execution of the hiba." It was observed: "20. It is well-settled that a question whether a person was in a position to dominate the will of another and procured a certain deed by undue influence, is a question of fact, and a finding thereon is a finding of fact, and if arrived at fairly, in accordance with the procedure prescribed. is not liable to be reopened in second appeal (Satgur Prasad v. Har Narain Das; Ladli Prasad Jaiswal v. Karnal Distillery Co. Ltd.)." 14. It is not the case of the appellant that the finding of the first appellate court on the question of fraud, undue influence etc. is vitiated by any illegality, omission or error or defect as envisaged under Section 100 of Code of Civil Procedure.15. Section 16 of the Indian Contract Act provides for as to what constitutes undue influence. Relationship between the parties so as to enable one of them to dominate the will of the other is a sine qua non for constitution of undue influence. Findings of fact as noticed hereinbefore have been arrived at by both the trial judge as also the first appellate court that the respondent was not in a position to dominate the plaintiffs will.16. In a given case it is possible to hold that when an illiterate, pardanashin woman executes a deed of sale, the burden would be on the vendee to prove that it was the deed of sale was a genuine document. It is, however, a registered document. It carries with it a presumption that it was executed in accordance with law. Again a concurrent finding of fact has been arrived at that she was not an illiterate woman or she was incapable of understanding as to what she had done.17. Mr. Dinesh has placed strong reliance upon a decision of this Court in Mst. Sethani Vs. Bhana reported in [1993 Supp. (4) SCC 639] wherein having regard to the fact had been arrived at from the courts below, it was held: "4. The facts are so glaring, still the onus to prove the issue has been over-emphasised. It is true that the initial onus to prove undue influence was on the plaintiff-appellant, but the onus, in the facts and circumstances of the case, was easily discharged. It is the respondent who had obtained the sale deed in his favour way back on April 1, 1963 by a registered sale deed, which saw the light at a late stage of the trial. From the certified copy thereof it was evident that no consideration passed at the time of the sale. Nobody from the registration office was examined to explain the sale. No evidence was led by the respondent to discharge the onus that the sale deed was executed under no undue influence, even though the vendor was old, blind, illiterate and a tribal woman totally at the mercy of the respondent, with whom she was living till her death. The parties were so situated that Bhana-respondent was in a position to dominate the will of Putlibai and was in a position to obtain an unfair advantage over her. It is also in evidence that Putlibai was dependent on the respondent. The trial court had given cogent reasons to come to the finding that the sale deed was vitiated on account of the condition in which Putlibai was put due to her relationship with Bhana-respondent, as well as the manner and nature of the transaction." 18. The factual matrix involved in the aforementioned case was, thus, absolutely different. Furthermore both the courts below have held that the plaint does not contained any particulars of undue influence, fraud etc. The law does not envisage raising of a presumption in favour of undue influence. A party alleging the same must prove the same subject of course to just exceptions. In M. Rangasamy Vs. Rengammal and Ors. [(2003) 7 SCC 683] , this court has held as under:- "Further, a perusal of the plaint shows that the execution of Exhibits B-6 and B-7 has, in fact, not been disputed by the plaintiffs. The case set up by them is that the first defendant, exercising dominating influence over his grandmother, got the two settlement deeds executed from her exploiting her old age, dim eyesight and mental condition. It has been further pleaded that the first defendant had a fiduciary relationship with his grandmother and, therefore, though normally it would be for a person who pleads undue influence to establish the said fact, but in view of this relationship, it is for the first defendant to prove that the gift deeds were the result of free exercise of independent will by the executant." 19. The said decision will apply in all fours in this case.
### Response:
0
### Explanation:
14. It is not the case of the appellant that the finding of the first appellate court on the question of fraud, undue influence etc. is vitiated by any illegality, omission or error or defect as envisaged under Section 100 of Code of Civil Procedure.15. Section 16 of the Indian Contract Act provides for as to what constitutes undue influence. Relationship between the parties so as to enable one of them to dominate the will of the other is a sine qua non for constitution of undue influence. Findings of fact as noticed hereinbefore have been arrived at by both the trial judge as also the first appellate court that the respondent was not in a position to dominate the plaintiffs will.16. In a given case it is possible to hold that when an illiterate, pardanashin woman executes a deed of sale, the burden would be on the vendee to prove that it was the deed of sale was a genuine document. It is, however, a registered document. It carries with it a presumption that it was executed in accordance with law. Again a concurrent finding of fact has been arrived at that she was not an illiterate woman or she was incapable of understanding as to what she had done.17. Mr. Dinesh has placed strong reliance upon a decision of this Court in Mst. Sethani Vs. Bhana reported in [1993 Supp. (4) SCC 639] wherein having regard to the fact had been arrived at from the courts below, it wasThe facts are so glaring, still the onus to prove the issue has beenIt is true that the initial onus to prove undue influence was on thebut the onus, in the facts and circumstances of the case, was easily discharged. It is the respondent who had obtained the sale deed in his favour way back on April 1, 1963 by a registered sale deed, which saw the light at a late stage of the trial. From the certified copy thereof it was evident that no consideration passed at the time of the sale. Nobody from the registration office was examined to explain the sale. No evidence was led by the respondent to discharge the onus that the sale deed was executed under no undue influence, even though the vendor was old, blind, illiterate and a tribal woman totally at the mercy of the respondent, with whom she was living till her death. The parties were so situated thatwas in a position to dominate the will of Putlibai and was in a position to obtain an unfair advantage over her. It is also in evidence that Putlibai was dependent on the respondent. The trial court had given cogent reasons to come to the finding that the sale deed was vitiated on account of the condition in which Putlibai was put due to her relationship withas well as the manner and nature of thefactual matrix involved in the aforementioned case was, thus, absolutely different.Furthermore both the courts below have held that the plaint does not contained any particulars of undue influence, fraud etc. The law does not envisage raising of a presumption in favour of undue influence. A party alleging the same must prove the same subject of course to just exceptions. In M. Rangasamy Vs. Rengammal and Ors. [(2003) 7 SCC 683] , this court has held asa perusal of the plaint shows that the execution of Exhibitshas, in fact, not been disputed by the plaintiffs. The case set up by them is that the first defendant, exercising dominating influence over his grandmother, got the two settlement deeds executed from her exploiting her old age, dim eyesight and mental condition. It has been further pleaded that the first defendant had a fiduciary relationship with his grandmother and, therefore, though normally it would be for a person who pleads undue influence to establish the said fact, but in view of this relationship, it is for the first defendant to prove that the gift deeds were the result of free exercise of independent will by thesaid decision will apply in all fours in this case.
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Maharshi Dayanand University Vs. Anand Coop. L/C Society Ltd. | accepted. But the appellant was not liable to pay any damages in view of clause 13 of the tender conditions. No payment was to be made unless the contract agreement was signed. It also contended that the dispute that was sought to be raised by the respondent was outside clause 25A of the tender conditions relied on by the respondent.8. The District Judge, controlled as he then was, by the decision in Konkan Railway Corporation Ltd. & Anr. vs. Rani Construction Pvt. Ltd. (2002 (2) SCC 388 ), appointed the Superintending Engineer as arbitrator by relying on clause 25A of the tender conditions, leaving it to the parties to raise all objections, including the objection to his jurisdiction, before the arbitrator in terms of Section 16 of the Act. Feeling dissatisfied, the appellant filed a writ petition before the High Court relying on the decision of this Court that since the order based on the application under Section 11 was an administrative order, a writ petition was maintainable, by referring to State of Orissa and others vs. Gokulananda Jena (2003 (6) SCC 465 = AIR 2003 SC 4207 ). The High Court held that the objections sought to be raised could be raised by the appellant before the arbitrator and there was no reason for the High Court to interfere with the order appointing an arbitrator in the circumstances of the case. It is feeling aggrieved thereby that the appellant has come up with this appeal by special leave.9. Learned counsel for the appellant submitted that no contract as contemplated by the parties containing the detailed terms and conditions was signed by the parties and in the circumstances there was no arbitration agreement as understood in the Act justifying the appointment of an arbitrator. Counsel brought to our notice Section 7 of the Act. Counsel also referred to the fact that in the subsequent decision in S.B.P. & Company vs. Patel Engineering Ltd. & Anr. (2005 (8) SCC 618 ) this Court has overruled the decision in Konkan Railway Corporation Ltd. & anr. (supra) and the ratio thereof is no more available to the respondent. Counsel also referred to the decision in Willington Associates Ltd. vs. Kirit Meta (2000(4) SCC 272) to submit that a question whether there was an arbitration clause or not, had to be decided by the court even under the dispensation recognized by the earlier decision in Konkan Railway Corporation Ltd. & anr. (supra). Counsel submitted that in view of the fact that a contract in writing had not come into existence by both the parties by affixing their signatures as contemplated by them, there was no concluded contract in the case on hand and it was just and necessary to interfere with the order appointing the arbitrator. As we have indicated earlier, the respondent has not chosen to appear before us to answer these contentions.10. The present case is governed by the procedure that was available when Konkan Railway Corporation Ltd. & anr. (supra) held the field. That orders already made were not to be affected by the ratio of the decision in S.B.P. & Company (supra) is clear from paragraph 46 of that decision wherein prior orders and proceedings have been saved. Therefore, the only question for decision is whether the fact that the parties have not signed the contract containing the detailed specifications as contemplated by the letter of acceptance would preclude the respondent from seeking an arbitration by falling back on clause 25A of the tender conditions quoted above. It is true that when parties during negotiations contemplate the execution of a formal agreement incorporating the terms of the bargain, so long as a formal agreement has not been entered into, it may be open to contend that there was no concluded contract between the parties. As against this, what is the position in a case where the tender submitted is accepted, its acceptance conveyed and the time for completing the work is stipulated to start from such acceptance, and the work was to commence on the basis of that acceptance but no payment was to be made until a formal contract was signed, is the first question that arises in this case. We think that in the circumstances, this is a question that must be left to be decided by the arbitrator, since in terms of Section 16 of the Act the question can be raised before the arbitrator. Considering that we are dealing with the pre S.B.P. & Company (supra) dispensation, we do not think that it is necessary or proper for us to go into that question and decide the same in these proceedings. Same is the position regarding the scope of clause 13 of the tender and the clauses relied on by counsel for the appellant in his attempt to take the present claim out of clause 25A of the tender conditions. We are, therefore, satisfied that it would be appropriate to leave this question, as also the other questions to be decided by the arbitrator rather than our trying to answer them at this stage in view of the fact that this case is not governed by the principles recognized by S.B.P. & Company (supra).11. But we make it clear that the arbitrator, in the first instance, has to decide whether the existence of an arbitration agreement in terms of Section 7 of the Act is established and also to decide whether the claim now made is a claim that comes within the purview of clause 25A of the tender conditions in case it is found to be an agreement within the meaning of Section 7 of the Act. Only on deciding these two aspects can the arbitrator go into the merits of the claim made by the respondent. But we clarify that it does not mean, that he should treat these two aspects as preliminary issues and decide them first; but only that he must decide them without fail while proceeding to finally pronounce his award. | 0[ds]10. The present case is governed by the procedure that was available when Konkan Railway Corporation Ltd. & anr. (supra) held the field. That orders already made were not to be affected by the ratio of the decision in S.B.P. & Company (supra) is clear from paragraph 46 of that decision wherein prior orders and proceedings have been saved. Therefore, the only question for decision is whether the fact that the parties have not signed the contract containing the detailed specifications as contemplated by the letter of acceptance would preclude the respondent from seeking an arbitration by falling back on clause 25A of the tender conditions quoted above. It is true that when parties during negotiations contemplate the execution of a formal agreement incorporating the terms of the bargain, so long as a formal agreement has not been entered into, it may be open to contend that there was no concluded contract between the parties. As against this, what is the position in a case where the tender submitted is accepted, its acceptance conveyed and the time for completing the work is stipulated to start from such acceptance, and the work was to commence on the basis of that acceptance but no payment was to be made until a formal contract was signed, is the first question that arises in this case. We think that in the circumstances, this is a question that must be left to be decided by the arbitrator, since in terms of Section 16 of the Act the question can be raised before the arbitrator. Considering that we are dealing with the pre S.B.P. & Company (supra) dispensation, we do not think that it is necessary or proper for us to go into that question and decide the same in these proceedings. Same is the position regarding the scope of clause 13 of the tender and the clauses relied on by counsel for the appellant in his attempt to take the present claim out of clause 25A of the tender conditions. We are, therefore, satisfied that it would be appropriate to leave this question, as also the other questions to be decided by the arbitrator rather than our trying to answer them at this stage in view of the fact that this case is not governed by the principles recognized by S.B.P. & Company (supra).11. But we make it clear that the arbitrator, in the first instance, has to decide whether the existence of an arbitration agreement in terms of Section 7 of the Act is established and also to decide whether the claim now made is a claim that comes within the purview of clause 25A of the tender conditions in case it is found to be an agreement within the meaning of Section 7 of the Act. Only on deciding these two aspects can the arbitrator go into the merits of the claim made by the respondent. But we clarify that it does not mean, that he should treat these two aspects as preliminary issues and decide them first; but only that he must decide them without fail while proceeding to finally pronounce his award. | 0 | 3,361 | 568 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
accepted. But the appellant was not liable to pay any damages in view of clause 13 of the tender conditions. No payment was to be made unless the contract agreement was signed. It also contended that the dispute that was sought to be raised by the respondent was outside clause 25A of the tender conditions relied on by the respondent.8. The District Judge, controlled as he then was, by the decision in Konkan Railway Corporation Ltd. & Anr. vs. Rani Construction Pvt. Ltd. (2002 (2) SCC 388 ), appointed the Superintending Engineer as arbitrator by relying on clause 25A of the tender conditions, leaving it to the parties to raise all objections, including the objection to his jurisdiction, before the arbitrator in terms of Section 16 of the Act. Feeling dissatisfied, the appellant filed a writ petition before the High Court relying on the decision of this Court that since the order based on the application under Section 11 was an administrative order, a writ petition was maintainable, by referring to State of Orissa and others vs. Gokulananda Jena (2003 (6) SCC 465 = AIR 2003 SC 4207 ). The High Court held that the objections sought to be raised could be raised by the appellant before the arbitrator and there was no reason for the High Court to interfere with the order appointing an arbitrator in the circumstances of the case. It is feeling aggrieved thereby that the appellant has come up with this appeal by special leave.9. Learned counsel for the appellant submitted that no contract as contemplated by the parties containing the detailed terms and conditions was signed by the parties and in the circumstances there was no arbitration agreement as understood in the Act justifying the appointment of an arbitrator. Counsel brought to our notice Section 7 of the Act. Counsel also referred to the fact that in the subsequent decision in S.B.P. & Company vs. Patel Engineering Ltd. & Anr. (2005 (8) SCC 618 ) this Court has overruled the decision in Konkan Railway Corporation Ltd. & anr. (supra) and the ratio thereof is no more available to the respondent. Counsel also referred to the decision in Willington Associates Ltd. vs. Kirit Meta (2000(4) SCC 272) to submit that a question whether there was an arbitration clause or not, had to be decided by the court even under the dispensation recognized by the earlier decision in Konkan Railway Corporation Ltd. & anr. (supra). Counsel submitted that in view of the fact that a contract in writing had not come into existence by both the parties by affixing their signatures as contemplated by them, there was no concluded contract in the case on hand and it was just and necessary to interfere with the order appointing the arbitrator. As we have indicated earlier, the respondent has not chosen to appear before us to answer these contentions.10. The present case is governed by the procedure that was available when Konkan Railway Corporation Ltd. & anr. (supra) held the field. That orders already made were not to be affected by the ratio of the decision in S.B.P. & Company (supra) is clear from paragraph 46 of that decision wherein prior orders and proceedings have been saved. Therefore, the only question for decision is whether the fact that the parties have not signed the contract containing the detailed specifications as contemplated by the letter of acceptance would preclude the respondent from seeking an arbitration by falling back on clause 25A of the tender conditions quoted above. It is true that when parties during negotiations contemplate the execution of a formal agreement incorporating the terms of the bargain, so long as a formal agreement has not been entered into, it may be open to contend that there was no concluded contract between the parties. As against this, what is the position in a case where the tender submitted is accepted, its acceptance conveyed and the time for completing the work is stipulated to start from such acceptance, and the work was to commence on the basis of that acceptance but no payment was to be made until a formal contract was signed, is the first question that arises in this case. We think that in the circumstances, this is a question that must be left to be decided by the arbitrator, since in terms of Section 16 of the Act the question can be raised before the arbitrator. Considering that we are dealing with the pre S.B.P. & Company (supra) dispensation, we do not think that it is necessary or proper for us to go into that question and decide the same in these proceedings. Same is the position regarding the scope of clause 13 of the tender and the clauses relied on by counsel for the appellant in his attempt to take the present claim out of clause 25A of the tender conditions. We are, therefore, satisfied that it would be appropriate to leave this question, as also the other questions to be decided by the arbitrator rather than our trying to answer them at this stage in view of the fact that this case is not governed by the principles recognized by S.B.P. & Company (supra).11. But we make it clear that the arbitrator, in the first instance, has to decide whether the existence of an arbitration agreement in terms of Section 7 of the Act is established and also to decide whether the claim now made is a claim that comes within the purview of clause 25A of the tender conditions in case it is found to be an agreement within the meaning of Section 7 of the Act. Only on deciding these two aspects can the arbitrator go into the merits of the claim made by the respondent. But we clarify that it does not mean, that he should treat these two aspects as preliminary issues and decide them first; but only that he must decide them without fail while proceeding to finally pronounce his award.
### Response:
0
### Explanation:
10. The present case is governed by the procedure that was available when Konkan Railway Corporation Ltd. & anr. (supra) held the field. That orders already made were not to be affected by the ratio of the decision in S.B.P. & Company (supra) is clear from paragraph 46 of that decision wherein prior orders and proceedings have been saved. Therefore, the only question for decision is whether the fact that the parties have not signed the contract containing the detailed specifications as contemplated by the letter of acceptance would preclude the respondent from seeking an arbitration by falling back on clause 25A of the tender conditions quoted above. It is true that when parties during negotiations contemplate the execution of a formal agreement incorporating the terms of the bargain, so long as a formal agreement has not been entered into, it may be open to contend that there was no concluded contract between the parties. As against this, what is the position in a case where the tender submitted is accepted, its acceptance conveyed and the time for completing the work is stipulated to start from such acceptance, and the work was to commence on the basis of that acceptance but no payment was to be made until a formal contract was signed, is the first question that arises in this case. We think that in the circumstances, this is a question that must be left to be decided by the arbitrator, since in terms of Section 16 of the Act the question can be raised before the arbitrator. Considering that we are dealing with the pre S.B.P. & Company (supra) dispensation, we do not think that it is necessary or proper for us to go into that question and decide the same in these proceedings. Same is the position regarding the scope of clause 13 of the tender and the clauses relied on by counsel for the appellant in his attempt to take the present claim out of clause 25A of the tender conditions. We are, therefore, satisfied that it would be appropriate to leave this question, as also the other questions to be decided by the arbitrator rather than our trying to answer them at this stage in view of the fact that this case is not governed by the principles recognized by S.B.P. & Company (supra).11. But we make it clear that the arbitrator, in the first instance, has to decide whether the existence of an arbitration agreement in terms of Section 7 of the Act is established and also to decide whether the claim now made is a claim that comes within the purview of clause 25A of the tender conditions in case it is found to be an agreement within the meaning of Section 7 of the Act. Only on deciding these two aspects can the arbitrator go into the merits of the claim made by the respondent. But we clarify that it does not mean, that he should treat these two aspects as preliminary issues and decide them first; but only that he must decide them without fail while proceeding to finally pronounce his award.
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Secretary To The Government, Transport Department Vs. Munuswamy Mudaliar and Others | the arbitration clause of the Standard Preliminary Specification shall be Superintending Engineer (H) Rural Roads Tiruchirapalli Circle." Pursuant to this the Superintending Engineer of that Circle, at the relevant time, was previously appointed as arbitrator. There was succession to that office by another incumbent and the succeeding Superintending Engineer wanted to continue the arbitration proceedings but before that an application was made under Section 5 of the Arbitration Act, l940 (hereinafter called `the Act) for removal of the arbitrator, before the learned Judge of the City Civil Court, Madras. The learned Judge by his order sought to revoke the authority of the named arbitrator. The learned Judge in his order dated 6th March, 1984, inter alia, observed as follows: "The apprehension of bias on the part of the Arbitrator is made to rest on the ground that the first respondent in the counter filed before the Arbitrator to the claim made by the petitioner referred to G.O. Ms. 409/Transport Dated 7.4.83 which in turn made a reference to a letter No.114879/D2/81. Dated 30. 10.82 of the Chief Engineer, H &RW."5. In the order of the learned Judge, City Civil Court, he stated that the Chief Engineer of the Circle concerned was in favour of the cancellation of the contract in question and the contract entrusted to the petitioner came to be terminated and the construction was sought to be entrusted at the risk and cost of the petitioner on the advice or the proposal of the Chief Engineer. The Superintending Engineer is sub -ordinate to the Chief Engineer, therefore, the learned Judge, City Civil Court was of the view, as he says in the judgment, "It is not unreasonable to say that the successive Superintending Engineer of this particular department who will be subordinate to the Chief Engineer will necessarily have a leaning to accept the attitude expressed by the Chief Engineer." The learned Judge came to the conclusion that there could legitimately be a bias in the mind of the arbitrator who was the Superintending Engineer against the appellant. The High Court also did not examine this aspect and dismissed the appeal in limine. Hence, this appeal.Apprehension of bias in the mind of the arbitrator is a good ground for removal of the arbitrator under section 5 of the Act. The learned Judge, City Civil Court, had directed the parties to submit a list of three engineers willing to be appointed as arbitrator and if the parties express consensus one of the three from the list of the petitioner or from the list of the respondent would. be chosen and appointed as arbitrator and in case there is no consensus between the parties then from among six engineers to be mentioned by both the parties three each in a separate list one of them will be selected by draw of lots and appointed as arbitrator. The parties were directed to submit a list of three engineers of their choice who would be willing to be appointed as arbitrator in the matter within a stipulated period. 6. This is a case of removal of a named arbitrator under Section 5 of the Act which gives jurisdiction to the Court to revoke the authority of the arbitrator. When the parties entered into the contract, the parties knew the terms of the contract including arbitration clause. The parties knew the scheme and the fact that the Chief Engineer is superior and the Superintending Engineer is subordinate to the Chief Engineer of t he particular Circle. In spite of that the parties agreed and entered into arbitration and indeed submitted to the jurisdiction of the Superintending Engineer at that time to begin with, who, however, could not complete the arbitration because he was transferred and succeeded by a successor. In those circumstances on the facts stated no bias can reasonably be apprehended and made a ground for removal of a named arbitrator. In our opinion this cannot be, at all, a good or valid legal ground. Unless there IS allegation against the named arbitrator either against his honesty or capacity or mala fide or interest in the subject matter or reasonable apprehension of the bias, a name and agreed arbitrator cannot and should not be removed in exercise of a discretion vested in the Court under section 5 of the Act.Reasonable apprehension of bias in the mind of a reasonable man can be a ground for removal of the arbitrator. A predisposition to decide for or against one party, without proper regard to the true merits of the dispute is bias. There must be reasonable apprehension of that predisposition. The reasonable apprehension must be based on cogent materials. See the observations of Mustill an d Boyd, Commercial Arbitration, 1982 Edition, page 214. Halsburys Laws of England, Fourth Edition, Volume 2, para 551, page 282 describe that the test for bias is whether a reasonable intelligent man, fully appraised of all the circumstances, would feel a serious apprehension of bias. 7. This Court in International Authority of India v. K.D. Bali and Anr., J.T. l9988 2 S.C. I held that there must be reasonable evidence to satisfy that there was a real likelihood of bias. Vague suspicions of whimsical, capricious and unreasonable people should not be made the standard to regulate normal human conduct. In this country in numerous contracts with the Government, clauses requiring the Superintending Engineer or some official of the Govt. to be the arbitrator are there. It cannot be said that the Superintending Engineer, as such cannot be entrusted with the work of arbitration and that an apprehension, simpliciter in the mind of the contractor without any tangible ground, would be a justification for removal. No other ground for the alleged apprehension was indicated in the pleadings before the learned Judge or the decision of the l earned Judge. There was, in our opinion, no ground for removal of the arbitrator. Mere imagination of a ground cannot be an excuse for apprehending bias in the mind of the chosen arbitrator. | 1[ds]6. This is a case of removal of a named arbitrator under Section 5 of the Act which gives jurisdiction to the Court to revoke the authority of the arbitrator. When the parties entered into the contract, the parties knew the terms of the contract including arbitration clause. The parties knew the scheme and the fact that the Chief Engineer is superior and the Superintending Engineer is subordinate to the Chief Engineer of t he particular Circle. In spite of that the parties agreed and entered into arbitration and indeed submitted to the jurisdiction of the Superintending Engineer at that time to begin with, who, however, could not complete the arbitration because he was transferred and succeeded by a successor. In those circumstances on the facts stated no bias can reasonably be apprehended and made a ground for removal of a named arbitrator. In our opinion this cannot be, at all, a good or valid legal ground. Unless there IS allegation against the named arbitrator either against his honesty or capacity or mala fide or interest in the subject matter or reasonable apprehension of the bias, a name and agreed arbitrator cannot and should not be removed in exercise of a discretion vested in the Court under section 5 of the Act.Reasonable apprehension of bias in the mind of a reasonable man can be a ground for removal of the arbitrator. A predisposition to decide for or against one party, without proper regard to the true merits of the dispute is bias. There must be reasonable apprehension of that predisposition. The reasonable apprehension must be based on cogent materials.This Court in International Authority of India v. K.D. Bali and Anr., J.T. l9988 2 S.C. I held that there must be reasonable evidence to satisfy that there was a real likelihood of bias. Vague suspicions of whimsical, capricious and unreasonable people should not be made the standard to regulate normal human conduct. In this country in numerous contracts with the Government, clauses requiring the Superintending Engineer or some official of the Govt. to be the arbitrator are there. It cannot be said that the Superintending Engineer, as such cannot be entrusted with the work of arbitration and that an apprehension, simpliciter in the mind of the contractor without any tangible ground, would be a justification for removal. No other ground for the alleged apprehension was indicated in the pleadings before the learned Judge or the decision of the l earned Judge. There was, in our opinion, no ground for removal of the arbitrator. Mere imagination of a ground cannot be an excuse for apprehending bias in the mind of the chosen arbitrator. | 1 | 1,573 | 487 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
the arbitration clause of the Standard Preliminary Specification shall be Superintending Engineer (H) Rural Roads Tiruchirapalli Circle." Pursuant to this the Superintending Engineer of that Circle, at the relevant time, was previously appointed as arbitrator. There was succession to that office by another incumbent and the succeeding Superintending Engineer wanted to continue the arbitration proceedings but before that an application was made under Section 5 of the Arbitration Act, l940 (hereinafter called `the Act) for removal of the arbitrator, before the learned Judge of the City Civil Court, Madras. The learned Judge by his order sought to revoke the authority of the named arbitrator. The learned Judge in his order dated 6th March, 1984, inter alia, observed as follows: "The apprehension of bias on the part of the Arbitrator is made to rest on the ground that the first respondent in the counter filed before the Arbitrator to the claim made by the petitioner referred to G.O. Ms. 409/Transport Dated 7.4.83 which in turn made a reference to a letter No.114879/D2/81. Dated 30. 10.82 of the Chief Engineer, H &RW."5. In the order of the learned Judge, City Civil Court, he stated that the Chief Engineer of the Circle concerned was in favour of the cancellation of the contract in question and the contract entrusted to the petitioner came to be terminated and the construction was sought to be entrusted at the risk and cost of the petitioner on the advice or the proposal of the Chief Engineer. The Superintending Engineer is sub -ordinate to the Chief Engineer, therefore, the learned Judge, City Civil Court was of the view, as he says in the judgment, "It is not unreasonable to say that the successive Superintending Engineer of this particular department who will be subordinate to the Chief Engineer will necessarily have a leaning to accept the attitude expressed by the Chief Engineer." The learned Judge came to the conclusion that there could legitimately be a bias in the mind of the arbitrator who was the Superintending Engineer against the appellant. The High Court also did not examine this aspect and dismissed the appeal in limine. Hence, this appeal.Apprehension of bias in the mind of the arbitrator is a good ground for removal of the arbitrator under section 5 of the Act. The learned Judge, City Civil Court, had directed the parties to submit a list of three engineers willing to be appointed as arbitrator and if the parties express consensus one of the three from the list of the petitioner or from the list of the respondent would. be chosen and appointed as arbitrator and in case there is no consensus between the parties then from among six engineers to be mentioned by both the parties three each in a separate list one of them will be selected by draw of lots and appointed as arbitrator. The parties were directed to submit a list of three engineers of their choice who would be willing to be appointed as arbitrator in the matter within a stipulated period. 6. This is a case of removal of a named arbitrator under Section 5 of the Act which gives jurisdiction to the Court to revoke the authority of the arbitrator. When the parties entered into the contract, the parties knew the terms of the contract including arbitration clause. The parties knew the scheme and the fact that the Chief Engineer is superior and the Superintending Engineer is subordinate to the Chief Engineer of t he particular Circle. In spite of that the parties agreed and entered into arbitration and indeed submitted to the jurisdiction of the Superintending Engineer at that time to begin with, who, however, could not complete the arbitration because he was transferred and succeeded by a successor. In those circumstances on the facts stated no bias can reasonably be apprehended and made a ground for removal of a named arbitrator. In our opinion this cannot be, at all, a good or valid legal ground. Unless there IS allegation against the named arbitrator either against his honesty or capacity or mala fide or interest in the subject matter or reasonable apprehension of the bias, a name and agreed arbitrator cannot and should not be removed in exercise of a discretion vested in the Court under section 5 of the Act.Reasonable apprehension of bias in the mind of a reasonable man can be a ground for removal of the arbitrator. A predisposition to decide for or against one party, without proper regard to the true merits of the dispute is bias. There must be reasonable apprehension of that predisposition. The reasonable apprehension must be based on cogent materials. See the observations of Mustill an d Boyd, Commercial Arbitration, 1982 Edition, page 214. Halsburys Laws of England, Fourth Edition, Volume 2, para 551, page 282 describe that the test for bias is whether a reasonable intelligent man, fully appraised of all the circumstances, would feel a serious apprehension of bias. 7. This Court in International Authority of India v. K.D. Bali and Anr., J.T. l9988 2 S.C. I held that there must be reasonable evidence to satisfy that there was a real likelihood of bias. Vague suspicions of whimsical, capricious and unreasonable people should not be made the standard to regulate normal human conduct. In this country in numerous contracts with the Government, clauses requiring the Superintending Engineer or some official of the Govt. to be the arbitrator are there. It cannot be said that the Superintending Engineer, as such cannot be entrusted with the work of arbitration and that an apprehension, simpliciter in the mind of the contractor without any tangible ground, would be a justification for removal. No other ground for the alleged apprehension was indicated in the pleadings before the learned Judge or the decision of the l earned Judge. There was, in our opinion, no ground for removal of the arbitrator. Mere imagination of a ground cannot be an excuse for apprehending bias in the mind of the chosen arbitrator.
### Response:
1
### Explanation:
6. This is a case of removal of a named arbitrator under Section 5 of the Act which gives jurisdiction to the Court to revoke the authority of the arbitrator. When the parties entered into the contract, the parties knew the terms of the contract including arbitration clause. The parties knew the scheme and the fact that the Chief Engineer is superior and the Superintending Engineer is subordinate to the Chief Engineer of t he particular Circle. In spite of that the parties agreed and entered into arbitration and indeed submitted to the jurisdiction of the Superintending Engineer at that time to begin with, who, however, could not complete the arbitration because he was transferred and succeeded by a successor. In those circumstances on the facts stated no bias can reasonably be apprehended and made a ground for removal of a named arbitrator. In our opinion this cannot be, at all, a good or valid legal ground. Unless there IS allegation against the named arbitrator either against his honesty or capacity or mala fide or interest in the subject matter or reasonable apprehension of the bias, a name and agreed arbitrator cannot and should not be removed in exercise of a discretion vested in the Court under section 5 of the Act.Reasonable apprehension of bias in the mind of a reasonable man can be a ground for removal of the arbitrator. A predisposition to decide for or against one party, without proper regard to the true merits of the dispute is bias. There must be reasonable apprehension of that predisposition. The reasonable apprehension must be based on cogent materials.This Court in International Authority of India v. K.D. Bali and Anr., J.T. l9988 2 S.C. I held that there must be reasonable evidence to satisfy that there was a real likelihood of bias. Vague suspicions of whimsical, capricious and unreasonable people should not be made the standard to regulate normal human conduct. In this country in numerous contracts with the Government, clauses requiring the Superintending Engineer or some official of the Govt. to be the arbitrator are there. It cannot be said that the Superintending Engineer, as such cannot be entrusted with the work of arbitration and that an apprehension, simpliciter in the mind of the contractor without any tangible ground, would be a justification for removal. No other ground for the alleged apprehension was indicated in the pleadings before the learned Judge or the decision of the l earned Judge. There was, in our opinion, no ground for removal of the arbitrator. Mere imagination of a ground cannot be an excuse for apprehending bias in the mind of the chosen arbitrator.
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Ajendra Nath Vs. State Of Madhya Pradesh | bales which were despatched by the Kanpur Woollen Mills and that the gate passes and the invoices produced by Kunzru were not proved as persons who wrote them had not been examined. Kunzru produced the originals of these documents. He is the salesman of the Kanpur Woollen Mills. His cross-examination in no way indicates that his statement about the genuineness of the invoices and gate passes was questioned in cross- examination. There is nothing to suppose that the invoices and gate passes produced in Court did not correctly represent the articles placed inside particular bales to which specific numbers were given and that those bales were despatched from the Mills in accordance with the gate passes. In this connection reference was made to the fact that five of the shawls recovered were of violet colour and no shawl of such a colour was mentioned in any of the invoices. There can be a possibility of a misdescription in the invoices, There can be a possibility of the violet shawls being the property stolen in some other incident. The fact remains that even the violet shawls are not claimed by the appellant as his own. So, we do not consider any force in this contention for considering the finding of the High Court defective about the property recovered to be stolen property.9. With respect to the identity of the bed-sheets, there is the evidence of P.Ws. 16 and 24. P.W. 16 deposed that he had supplied 10 pairs of bed-sheets to a certain customer who disowned the bale. Thereupon he asked the Station Master, Ahimanpur to return the parcel to Karur. He recognized the various sheets to be of his firm which they had despatched to Ahimanpur. He further deposed that before despatching the goods they paste the firm labels on them. He stated that his younger brother Krishna Murti had noted size-number and pattern over these sheets in his handwriting, as he happened to be at home on vacation. Krishna Murti, P.W.24, admits that certain labels on the bed-sheets were in his hand-writing, that he wrote them under instructions of his brother and that he had not written sirnilar numbers on any other bed-sheets. He however stated subsequently that he did such type of markings casually, on occasions, and that the Sub-Inspector had also got him write the size, pattern etc., on certain other blank labels of the shop as well.The learned Additional Sessions judge did not rely on these statements and felt that the Investigating Officer might have got those markings on the labels of the recovered articles during the investigation. The High Court thought that there was no reason for doubting the correctness of the statements of these witnesses and for suspecting that the writings on the labels were obtained during the investigation. No question was put to P.W. 24 about the police making him write on the labels on the recovered articles. In fact, according to the witness, labels with his writings were shown to him for purposes of recognition and he recognized those writings to be his. The police took his writings on blank labels for purposes of comparison. We therefore see no good reason for considering the finding of the High Court with respect to the bed-sheets recovered to be stolen property to be wrong.10. It was also contended that it was not open to the High Court to record a finding about the recovered property to be stolen property when the Government had not appealed against the other co-accused who were acquitted on the basis of the finding that the property recovered was not proved to be stolen property. We do not see any force in this contention. The mere fact that the learned Additional Sessions judge acquitted the other accused on the ground that the property recovered was not proved to be stolen property did not preclude the State from appealing against the acquittal of the appellant against whom there is better evidence for establishing that he was in possession of the stolen property than the evidence was against the other co-accused. The State could challenge the correctness of the findings of the learned Additional Sessions judge about the property being stolen property and, consequently, the High Court can record its own finding on that question.Lastly, it was also urged that even if the identity of the articles recovered with the articles stolen be established, no offence under s.414 I.P.C. is made out against the appellant as the other accused have been acquitted and it is not known whom the appellant is supposed to have helped in concealing the stolen property. Section 414 I.P.C. makes it an offence for a person to assist voluntarily in stealing or disposing of or making away with property which he knows or has reason to believe to be stolen property. It is not necessary for a person to be convicted under s.414 I.P.C. that another person must be traced out and convicted of an offence of committing theft. The prosecution has simply to establish that the property recovered is stolen property and that the appellant provided help in its concealment and disposal. The circumstances of the recovery sufficiently make out that the property was deliberately divided into different packets and was separately kept. May be that the property failing to the share of a particular thief was kept separately. It was recovered from several different places in the same house. These places included an iron safe and an underground cellar. The evening before, several persons, including the appellant, were found to be coming out of the back door of the house which had its front door locked. The appellant also knew the whereabouts of the property inside the house of his maternal grandfather. He attempted to sell a few mufflers a day before the recoveries were made. He was seen arriving at the house, during the night, in a car with some persons and then removing property which looked like bales from the car to the house. | 0[ds]It was also contended that it was not open to the High Court to record a finding about the recovered property to be stolen property when the Government had not appealed against the other co-accused who were acquitted on the basis of the finding that the property recovered was not proved to be stolen property. We do not see any force in this contention. The mere fact that the learned Additional Sessions judge acquitted the other accused on the ground that the property recovered was not proved to be stolen property did not preclude the State from appealing against the acquittal of the appellant against whom there is better evidence for establishing that he was in possession of the stolen property than the evidence was against the other co-accused. The State could challenge the correctness of the findings of the learned Additional Sessions judge about the property being stolen property and, consequently, the High Court can record its own finding on that question.Lastly, it was also urged that even if the identity of the articles recovered with the articles stolen be established, no offence under s.414 I.P.C. is made out against the appellant as the other accused have been acquitted and it is not known whom the appellant is supposed to have helped in concealing the stolen property. Section 414 I.P.C. makes it an offence for a person to assist voluntarily in stealing or disposing of or making away with property which he knows or has reason to believe to be stolen property. It is not necessary for a person to be convicted under s.414 I.P.C. that another person must be traced out and convicted of an offence of committing theft. The prosecution has simply to establish that the property recovered is stolen property and that the appellant provided help in its concealment and disposal. The circumstances of the recovery sufficiently make out that the property was deliberately divided into different packets and was separately kept. May be that the property failing to the share of a particular thief was kept separately. It was recovered from several different places in the same house. These places included an iron safe and an underground cellar. The evening before, several persons, including the appellant, were found to be coming out of the back door of the house which had its front door locked. The appellant also knew the whereabouts of the property inside the house of his maternal grandfather. He attempted to sell a few mufflers a day before the recoveries were made. He was seen arriving at the house, during the night, in a car with some persons and then removing property which looked like bales from the car to the house. | 0 | 2,234 | 481 | ### 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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bales which were despatched by the Kanpur Woollen Mills and that the gate passes and the invoices produced by Kunzru were not proved as persons who wrote them had not been examined. Kunzru produced the originals of these documents. He is the salesman of the Kanpur Woollen Mills. His cross-examination in no way indicates that his statement about the genuineness of the invoices and gate passes was questioned in cross- examination. There is nothing to suppose that the invoices and gate passes produced in Court did not correctly represent the articles placed inside particular bales to which specific numbers were given and that those bales were despatched from the Mills in accordance with the gate passes. In this connection reference was made to the fact that five of the shawls recovered were of violet colour and no shawl of such a colour was mentioned in any of the invoices. There can be a possibility of a misdescription in the invoices, There can be a possibility of the violet shawls being the property stolen in some other incident. The fact remains that even the violet shawls are not claimed by the appellant as his own. So, we do not consider any force in this contention for considering the finding of the High Court defective about the property recovered to be stolen property.9. With respect to the identity of the bed-sheets, there is the evidence of P.Ws. 16 and 24. P.W. 16 deposed that he had supplied 10 pairs of bed-sheets to a certain customer who disowned the bale. Thereupon he asked the Station Master, Ahimanpur to return the parcel to Karur. He recognized the various sheets to be of his firm which they had despatched to Ahimanpur. He further deposed that before despatching the goods they paste the firm labels on them. He stated that his younger brother Krishna Murti had noted size-number and pattern over these sheets in his handwriting, as he happened to be at home on vacation. Krishna Murti, P.W.24, admits that certain labels on the bed-sheets were in his hand-writing, that he wrote them under instructions of his brother and that he had not written sirnilar numbers on any other bed-sheets. He however stated subsequently that he did such type of markings casually, on occasions, and that the Sub-Inspector had also got him write the size, pattern etc., on certain other blank labels of the shop as well.The learned Additional Sessions judge did not rely on these statements and felt that the Investigating Officer might have got those markings on the labels of the recovered articles during the investigation. The High Court thought that there was no reason for doubting the correctness of the statements of these witnesses and for suspecting that the writings on the labels were obtained during the investigation. No question was put to P.W. 24 about the police making him write on the labels on the recovered articles. In fact, according to the witness, labels with his writings were shown to him for purposes of recognition and he recognized those writings to be his. The police took his writings on blank labels for purposes of comparison. We therefore see no good reason for considering the finding of the High Court with respect to the bed-sheets recovered to be stolen property to be wrong.10. It was also contended that it was not open to the High Court to record a finding about the recovered property to be stolen property when the Government had not appealed against the other co-accused who were acquitted on the basis of the finding that the property recovered was not proved to be stolen property. We do not see any force in this contention. The mere fact that the learned Additional Sessions judge acquitted the other accused on the ground that the property recovered was not proved to be stolen property did not preclude the State from appealing against the acquittal of the appellant against whom there is better evidence for establishing that he was in possession of the stolen property than the evidence was against the other co-accused. The State could challenge the correctness of the findings of the learned Additional Sessions judge about the property being stolen property and, consequently, the High Court can record its own finding on that question.Lastly, it was also urged that even if the identity of the articles recovered with the articles stolen be established, no offence under s.414 I.P.C. is made out against the appellant as the other accused have been acquitted and it is not known whom the appellant is supposed to have helped in concealing the stolen property. Section 414 I.P.C. makes it an offence for a person to assist voluntarily in stealing or disposing of or making away with property which he knows or has reason to believe to be stolen property. It is not necessary for a person to be convicted under s.414 I.P.C. that another person must be traced out and convicted of an offence of committing theft. The prosecution has simply to establish that the property recovered is stolen property and that the appellant provided help in its concealment and disposal. The circumstances of the recovery sufficiently make out that the property was deliberately divided into different packets and was separately kept. May be that the property failing to the share of a particular thief was kept separately. It was recovered from several different places in the same house. These places included an iron safe and an underground cellar. The evening before, several persons, including the appellant, were found to be coming out of the back door of the house which had its front door locked. The appellant also knew the whereabouts of the property inside the house of his maternal grandfather. He attempted to sell a few mufflers a day before the recoveries were made. He was seen arriving at the house, during the night, in a car with some persons and then removing property which looked like bales from the car to the house.
### Response:
0
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It was also contended that it was not open to the High Court to record a finding about the recovered property to be stolen property when the Government had not appealed against the other co-accused who were acquitted on the basis of the finding that the property recovered was not proved to be stolen property. We do not see any force in this contention. The mere fact that the learned Additional Sessions judge acquitted the other accused on the ground that the property recovered was not proved to be stolen property did not preclude the State from appealing against the acquittal of the appellant against whom there is better evidence for establishing that he was in possession of the stolen property than the evidence was against the other co-accused. The State could challenge the correctness of the findings of the learned Additional Sessions judge about the property being stolen property and, consequently, the High Court can record its own finding on that question.Lastly, it was also urged that even if the identity of the articles recovered with the articles stolen be established, no offence under s.414 I.P.C. is made out against the appellant as the other accused have been acquitted and it is not known whom the appellant is supposed to have helped in concealing the stolen property. Section 414 I.P.C. makes it an offence for a person to assist voluntarily in stealing or disposing of or making away with property which he knows or has reason to believe to be stolen property. It is not necessary for a person to be convicted under s.414 I.P.C. that another person must be traced out and convicted of an offence of committing theft. The prosecution has simply to establish that the property recovered is stolen property and that the appellant provided help in its concealment and disposal. The circumstances of the recovery sufficiently make out that the property was deliberately divided into different packets and was separately kept. May be that the property failing to the share of a particular thief was kept separately. It was recovered from several different places in the same house. These places included an iron safe and an underground cellar. The evening before, several persons, including the appellant, were found to be coming out of the back door of the house which had its front door locked. The appellant also knew the whereabouts of the property inside the house of his maternal grandfather. He attempted to sell a few mufflers a day before the recoveries were made. He was seen arriving at the house, during the night, in a car with some persons and then removing property which looked like bales from the car to the house.
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Nilkantha Shidramappa Ningashetti Vs. Kashinath Somanna Ningashetti And Others | the party whom the pleader represents and, unless the Court otherwise directs, shall be as effectual for all purposes as if the same had been given to or served on the party in person.9. We have been referred to S. 42 of the Arbitration Act for the modes of serving notice. This section does not apply to the giving of notice by Courts. It applies to the service of notice by a party to an arbitration agreement or by an arbitrator or umpire. It is contended that verbal communication of the filing of the award does not amount to serving of a notice. The expression date of service of notice is used in Art. 158, First Schedule of the Limitation Act because sub-s. (2) of S. 14 would be applicable both when the reference to arbitration is out of Court or in a suit. "When the arbitration reference is out of Court, no party is expected to be present in Court and, therefore, the notice will have to go to the party formally, i.e., a written notice will issue from the Court to the parties concerned, intimating them that an award had been filed. It is only in cases where an arbitration is through Court that, when the award is filed, the Court can have the counsel for the parties present at the time the case is put up with the award and that the Court can then orally intimate to the counsel about the filing of the award. Further, service, according to Websters New International Dictionary, II Edition, Unabridged, means act of bringing to notice, either actually or constructively, in such manner as is prescribed by law. Oral communication will therefore amount to service too, when no particular mode of service is prescribed.10. We see no ground to construe the expression date of service of notice in col3 of Art. 158 of the Limitation Act to mean only a notice in writing served in a formal manner. When the Legislature used the word notice it must be presumed to have borne in mind that it means not only a formal intimation but also an informal one. Similarly, it must be deemed to have in mind the fact that service of a notice would include constructive or informal notice. If its intention were to exclude the latter sense of the words notice and service it would have said so explicitly. It has not done so here. Moreover, to construe the expression as meaning only a written notice served formally on the party to be affected, will leave the door open to that party, even though with full knowledge of the filing of the award he has taken part in the subsequent proceedings, to challenge the decree based upon the award at any time upon the ground that for want of a proper notice his right to object to the filing of the award had not even accrued. Such a result would stultify the whole object which underlies the process of arbitration - the speedy decision of a dispute by a tribunal chosen by the parties.11. In this case, the parties knew of the filing of the award, Defendant no. 1 had probably known of the imminence of the filing of the award when he stated, in his application dated February 17, 1948, that he intended to file an objection to the award. He was then the guardian of the appellant. He continued to be the guardian till April 1948. The appellants mother became guardian in June 1948. It has to be presumed that she would have known of the filing of the award on that day. Any way, she knew definitely on September 7, 1948, that an award had been filed and that she had to file an objection. She took one months time on September 7, for filing the objection and again, one months time, on October 7. She actually filed the objection on November 9. If she be held to have notice of the filing of the award on September 7, 1948, even then the filing the award on November 9, 1948, was beyond the period of thirty days prescribed in Art. 158 of the Limitation Act. We therefore see no justification for the contention that the period of limitation had not begun to run against the appellant and that the objection filed on his behalf on November 9, 1948, was within the period of limitation prescribed under Art. 158 of the First Schedule to the Limitation Act.12. We therefore agree with the High Court that the intimation to the pleaders of the parties on February 21, 1948, amounted to service of the notice on the parties about the filing of the award and that the objection filed on behalf of the appellant was filed after the expiry of the period of limitation.13. The second question is whether the order of the Civil Judge amounted to an order refusing to set aside the award and therefore appealable to the High Court. The High Court held that it was not such an order and we agree. When no party filed an objection praying for the setting aside of the award, no question of refusing to set it aside can arise and therefore no appeal was maintainable under S. 39(1)(vi) of the Arbitration Act which allows an appeal against an order refusing to set aside an award.14. Lastly, it was submitted that the objection to the effect that the award was illegal and without jurisdiction, inasmuch as the arbitrator included in the award property which did not fall within the scope of his authority, should have been considered by the trial Court. Such an objection was not pressed before the trial Court and therefore the High Court did not allow that objection to be taken before it. We think that the High Court was right in not allowing the objection to be raised since it, being not pressed in the trial Court, will be presumed to have been given up. | 0[ds]We are of opinion that the expression give notice in sub-s. (2) of S. 14, simply means giving intimation of the filing of the award, which certainly was given to the parties through their pleaders on February 21, 1948. Notice to the pleader is notice to the party, in view of R. 5 of O. III, Civil Procedure Code, which provides that, any process served on the pleader of any party shall be presumed to be duly communicated and made known to the party whom the pleader represents and, unless the Court otherwise directs, shall be as effectual for all purposes as if the same had been given to or served on the party insection does not apply to the giving of notice by Courts. It applies to the service of notice by a party to an arbitration agreement or by an arbitrator or umpire.We see no ground to construe the expression date of service of notice in col3 of Art. 158 of the Limitation Act to mean only a notice in writing served in a formal manner. When the Legislature used the word notice it must be presumed to have borne in mind that it means not only a formal intimation but also an informal one. Similarly, it must be deemed to have in mind the fact that service of a notice would include constructive or informal notice. If its intention were to exclude the latter sense of the words notice and service it would have said so explicitly. It has not done so here. Moreover, to construe the expression as meaning only a written notice served formally on the party to be affected, will leave the door open to that party, even though with full knowledge of the filing of the award he has taken part in the subsequent proceedings, to challenge the decree based upon the award at any time upon the ground that for want of a proper notice his right to object to the filing of the award had not even accrued. Such a result would stultify the whole object which underlies the process of arbitration - the speedy decision of a dispute by a tribunal chosen by the parties.11. In this case, the parties knew of the filing of the award, Defendant no. 1 had probably known of the imminence of the filing of the award when he stated, in his application dated February 17, 1948, that he intended to file an objection to the award. He was then the guardian of the appellant. He continued to be the guardian till April 1948. The appellants mother became guardian in June 1948. It has to be presumed that she would have known of the filing of the award on that day. Any way, she knew definitely on September 7, 1948, that an award had been filed and that she had to file an objection. She took one months time on September 7, for filing the objection and again, one months time, on October 7. She actually filed the objection on November 9. If she be held to have notice of the filing of the award on September 7, 1948, even then the filing the award on November 9, 1948, was beyond the period of thirty days prescribed in Art. 158 of the Limitation Act. We therefore see no justification for the contention that the period of limitation had not begun to run against the appellant and that the objection filed on his behalf on November 9, 1948, was within the period of limitation prescribed under Art. 158 of the First Schedule to the Limitation Act.12. We therefore agree with the High Court that the intimation to the pleaders of the parties on February 21, 1948, amounted to service of the notice on the parties about the filing of the award and that the objection filed on behalf of the appellant was filed after the expiry of the period ofHigh Court held that it was not such an order and we agree. When no party filed an objection praying for the setting aside of the award, no question of refusing to set it aside can arise and therefore no appeal was maintainable under S. 39(1)(vi) of the Arbitration Act which allows an appeal against an order refusing to set aside anan objection was not pressed before the trial Court and therefore the High Court did not allow that objection to be taken before it. We think that the High Court was right in not allowing the objection to be raised since it, being not pressed in the trial Court, will be presumed to have been given up. | 0 | 2,650 | 845 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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the party whom the pleader represents and, unless the Court otherwise directs, shall be as effectual for all purposes as if the same had been given to or served on the party in person.9. We have been referred to S. 42 of the Arbitration Act for the modes of serving notice. This section does not apply to the giving of notice by Courts. It applies to the service of notice by a party to an arbitration agreement or by an arbitrator or umpire. It is contended that verbal communication of the filing of the award does not amount to serving of a notice. The expression date of service of notice is used in Art. 158, First Schedule of the Limitation Act because sub-s. (2) of S. 14 would be applicable both when the reference to arbitration is out of Court or in a suit. "When the arbitration reference is out of Court, no party is expected to be present in Court and, therefore, the notice will have to go to the party formally, i.e., a written notice will issue from the Court to the parties concerned, intimating them that an award had been filed. It is only in cases where an arbitration is through Court that, when the award is filed, the Court can have the counsel for the parties present at the time the case is put up with the award and that the Court can then orally intimate to the counsel about the filing of the award. Further, service, according to Websters New International Dictionary, II Edition, Unabridged, means act of bringing to notice, either actually or constructively, in such manner as is prescribed by law. Oral communication will therefore amount to service too, when no particular mode of service is prescribed.10. We see no ground to construe the expression date of service of notice in col3 of Art. 158 of the Limitation Act to mean only a notice in writing served in a formal manner. When the Legislature used the word notice it must be presumed to have borne in mind that it means not only a formal intimation but also an informal one. Similarly, it must be deemed to have in mind the fact that service of a notice would include constructive or informal notice. If its intention were to exclude the latter sense of the words notice and service it would have said so explicitly. It has not done so here. Moreover, to construe the expression as meaning only a written notice served formally on the party to be affected, will leave the door open to that party, even though with full knowledge of the filing of the award he has taken part in the subsequent proceedings, to challenge the decree based upon the award at any time upon the ground that for want of a proper notice his right to object to the filing of the award had not even accrued. Such a result would stultify the whole object which underlies the process of arbitration - the speedy decision of a dispute by a tribunal chosen by the parties.11. In this case, the parties knew of the filing of the award, Defendant no. 1 had probably known of the imminence of the filing of the award when he stated, in his application dated February 17, 1948, that he intended to file an objection to the award. He was then the guardian of the appellant. He continued to be the guardian till April 1948. The appellants mother became guardian in June 1948. It has to be presumed that she would have known of the filing of the award on that day. Any way, she knew definitely on September 7, 1948, that an award had been filed and that she had to file an objection. She took one months time on September 7, for filing the objection and again, one months time, on October 7. She actually filed the objection on November 9. If she be held to have notice of the filing of the award on September 7, 1948, even then the filing the award on November 9, 1948, was beyond the period of thirty days prescribed in Art. 158 of the Limitation Act. We therefore see no justification for the contention that the period of limitation had not begun to run against the appellant and that the objection filed on his behalf on November 9, 1948, was within the period of limitation prescribed under Art. 158 of the First Schedule to the Limitation Act.12. We therefore agree with the High Court that the intimation to the pleaders of the parties on February 21, 1948, amounted to service of the notice on the parties about the filing of the award and that the objection filed on behalf of the appellant was filed after the expiry of the period of limitation.13. The second question is whether the order of the Civil Judge amounted to an order refusing to set aside the award and therefore appealable to the High Court. The High Court held that it was not such an order and we agree. When no party filed an objection praying for the setting aside of the award, no question of refusing to set it aside can arise and therefore no appeal was maintainable under S. 39(1)(vi) of the Arbitration Act which allows an appeal against an order refusing to set aside an award.14. Lastly, it was submitted that the objection to the effect that the award was illegal and without jurisdiction, inasmuch as the arbitrator included in the award property which did not fall within the scope of his authority, should have been considered by the trial Court. Such an objection was not pressed before the trial Court and therefore the High Court did not allow that objection to be taken before it. We think that the High Court was right in not allowing the objection to be raised since it, being not pressed in the trial Court, will be presumed to have been given up.
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0
### Explanation:
We are of opinion that the expression give notice in sub-s. (2) of S. 14, simply means giving intimation of the filing of the award, which certainly was given to the parties through their pleaders on February 21, 1948. Notice to the pleader is notice to the party, in view of R. 5 of O. III, Civil Procedure Code, which provides that, any process served on the pleader of any party shall be presumed to be duly communicated and made known to the party whom the pleader represents and, unless the Court otherwise directs, shall be as effectual for all purposes as if the same had been given to or served on the party insection does not apply to the giving of notice by Courts. It applies to the service of notice by a party to an arbitration agreement or by an arbitrator or umpire.We see no ground to construe the expression date of service of notice in col3 of Art. 158 of the Limitation Act to mean only a notice in writing served in a formal manner. When the Legislature used the word notice it must be presumed to have borne in mind that it means not only a formal intimation but also an informal one. Similarly, it must be deemed to have in mind the fact that service of a notice would include constructive or informal notice. If its intention were to exclude the latter sense of the words notice and service it would have said so explicitly. It has not done so here. Moreover, to construe the expression as meaning only a written notice served formally on the party to be affected, will leave the door open to that party, even though with full knowledge of the filing of the award he has taken part in the subsequent proceedings, to challenge the decree based upon the award at any time upon the ground that for want of a proper notice his right to object to the filing of the award had not even accrued. Such a result would stultify the whole object which underlies the process of arbitration - the speedy decision of a dispute by a tribunal chosen by the parties.11. In this case, the parties knew of the filing of the award, Defendant no. 1 had probably known of the imminence of the filing of the award when he stated, in his application dated February 17, 1948, that he intended to file an objection to the award. He was then the guardian of the appellant. He continued to be the guardian till April 1948. The appellants mother became guardian in June 1948. It has to be presumed that she would have known of the filing of the award on that day. Any way, she knew definitely on September 7, 1948, that an award had been filed and that she had to file an objection. She took one months time on September 7, for filing the objection and again, one months time, on October 7. She actually filed the objection on November 9. If she be held to have notice of the filing of the award on September 7, 1948, even then the filing the award on November 9, 1948, was beyond the period of thirty days prescribed in Art. 158 of the Limitation Act. We therefore see no justification for the contention that the period of limitation had not begun to run against the appellant and that the objection filed on his behalf on November 9, 1948, was within the period of limitation prescribed under Art. 158 of the First Schedule to the Limitation Act.12. We therefore agree with the High Court that the intimation to the pleaders of the parties on February 21, 1948, amounted to service of the notice on the parties about the filing of the award and that the objection filed on behalf of the appellant was filed after the expiry of the period ofHigh Court held that it was not such an order and we agree. When no party filed an objection praying for the setting aside of the award, no question of refusing to set it aside can arise and therefore no appeal was maintainable under S. 39(1)(vi) of the Arbitration Act which allows an appeal against an order refusing to set aside anan objection was not pressed before the trial Court and therefore the High Court did not allow that objection to be taken before it. We think that the High Court was right in not allowing the objection to be raised since it, being not pressed in the trial Court, will be presumed to have been given up.
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Kishore Lal Vs. Chairman E.S.I.Corporation | the learned counsel for the respondent is that the claim made by the appellant before the consumer forum raises a dispute in regard to damages for negligence of doctors in the ESI hospital/dispensary and would tantamount to claiming benefit and the amount under the ESI Act provisions and would fall within clause (e) of Section 75(1) and, therefore, it is the Employees Insurance Court alone which has the jurisdiction to decide it. We are afraid that we cannot agree with the submission made by the learned counsel. Section 75 provides for the subjects on which the jurisdiction shall be exercised by the Employees Insurance Court. Clause (e) of Section 75(1) gives power to the Employees Insurance Court to adjudicate upon the dispute of the right of any person to any benefit and as to the amount and duration thereof. The benefit which has been referred to, has a reference to the benefits under the Act, i.e., the ESI Act. The Employees State Insurance (Central) Rules, 1950 (hereinafter referred to as "the Rules") have been framed in exercise of the powers under Section 95 of the ESI Act. Rule 56 provides for maternity benefits, Rule 57 for disablement benefits, Rule 58 for dependents benefits, Rule 60 for medical benefits to insured person who ceases to be in an insurable employment on account of permanent disablement and Rule 61 for medical benefits to retired insured persons. Thus, these are the benefits which are provided under the Rules to the employees and the ex-employees for which claim can be made in the Employees Insurance Court. The appellants claim has no relation to any of the benefits which are provided in the Rules for which the claim can be made in the Employees Insurance Court. The appellants claim is for damages for the negligence on the part of the ESI hospital/dispensary and the doctors working therein.19. A bare perusal of the provisions of clauses (a) to (g) of Section 75(1) clearly shows that it does not include claim for damages for medical negligence, like the present case which we are dealing with. Although the question does not directly arise before us, we shall consider what in the ordinary course shall constitute negligence.20. This Court has considered the principles of the law on negligence in Jacob Mathew v. State of Punjab and Another, (2005) 6 SCC 1. The jurisprudential concept of negligence defies any precise definition. Eminent jurists and leading judgments have assigned various meanings to negligence. The concept as has been acceptable to Indian jurisprudential thought is well-stated in the Law of Torts, Ratanlal & Dhirajlal (24th Ed. 2002, edited by Justice G.P. Singh). It is stated (at pp. 441-442): "Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property the definition involves three constituents of negligence:(1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the formers conduct within the scope of the duty;(2) breach of the said duty; and(3) consequential damage.Cause of action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort." Cause of action for negligence arises only when damage occurs and thus the claimant has to satisfy the court on the evidence that three ingredients of negligence, namely, (a) existence of duty to take care; (b) failure to attain that standard of care; and (c) damage suffered on account of breach of duty, are present for the defendant to be held liable for negligence. Therefore, the claimant has to satisfy these ingredients before he can claim damages for medical negligence of the doctors and that could not be a question which could be adjudicated upon by the Employees Insurance Courts which have been given specific powers of the issues, which they can adjudicate and decide. Claim for damages for negligence of the doctors or the ESI hospital/dispensary is clearly beyond the jurisdictional power of the Employees Insurance Court. An Employees Insurance Court has jurisdiction to decide certain claims which fall under sub-section (2) of Section 75 of the ESI Act. A bare reading of Section 75(2) also does not indicate, in any manner, that the claim for damages for negligence would fall within the purview of the decisions being made by the Employees Insurance Court. Further, it can be seen that any claim arising out of and within the purview of the Employees Insurance Court is expressly barred by virtue of sub-section (3) to be adjudicated upon by a civil court, but there is no such express bar for the consumer forum to exercise the jurisdiction even if the subject matter of the claim or dispute falls within clauses (a) to (g) of sub-section (1) of Section 75 or where the jurisdiction to adjudicate upon the claim is vested with the Employees Insurance Court under clauses (a) to (f) of sub-section (2) of Section 75 if it is a consumers dispute falling under the CP Act.21. Having considered all these aspects, we are of the view that the appellant is a consumer within the ambit of Section 2(1)(d) of the Consumer Protection Act, 1986 and the medical service rendered in the ESI hospital/dispensary by the respondent Corporation falls within the ambit of Section 2(1)(o) of the Consumer Protection Act and, therefore, the consumer forum has jurisdiction to adjudicate upon the case of the appellant. We further hold that the jurisdiction of the consumer forum is not ousted by virtue of sub-section (1) or (2) or (3) of Section 75 of the Employees State Insurance Act, 1948. | 1[ds]We are really concerned in this case with conclusions Nos. (9), (10), (11) and (12). Conclusion No. (9) is in regard to the service rendered at a government hospital/health center/dispensary where no charges whatsoever are made from any person and they are given free service, which would not be a service under Section 2(1)(o) of the CP Act. Conclusion No. (10) lays down that where the service is rendered at a government hospital/health center/dispensary on payment of charges and also rendered free of charge, then it would fall within the ambit of the expression ‘service. Conclusion No. (11) says that if a patient or his relation availed of the service of a medical practitioner or hospital/nursing home where the charges for consultation, diagnosis and medical treatment are borne by the insurance company, then such service would fall within the ambit of service. Similarly, under conclusion No. (12), where as a part of the conditions of service the employer bears the expenses of medical treatment of an employee and his family members dependent on him, then the service rendered by a medical practitioner or a hospital/nursing home would not be treated to be free of charge and would constitute ‘service under Section 2(1)(o).The service rendered by the medical practitioners of hospitals/nursing homes run by the ESI Corporation cannot be regarded as a service rendered free of charge. The person availing of such service under an insurance scheme of medical care, whereunder the charges for consultation, diagnosis and medical treatment are borne by the insurer, such service would fall within the ambit of ‘service as defined in Section 2(1)(o) of the CP Act. We are of the opinion that the service provided by the ESI hospital/dispensary falls within the ambit of ‘service as defined in Section 2(1)(o) of the CP Act. ESI scheme is an insurance scheme and it contributes for the service rendered by the ESI hospitals/dispensaries, of medical care in its hospitals/dispensaries, and as such service given in the ESI hospitals/dispensaries to a member of the Scheme or his family cannot be treated as gratuitous.15. We shall now proceed to consider the second question raised by Shri Vijay K. Mehta, the learned counsel for the respondent that by virtue of Section 74 read with Section 75, and particularly Section 75(e), of the ESI Act, the claim made by the appellant would exclusively fall for decision within the jurisdiction of the Employees Insurance Court and that being the position the consumer forum has no jurisdiction to adjudicate upon the issue.e submission of the learned counsel for the respondent is that the claim made by the appellant before the consumer forum raises a dispute in regard to damages for negligence of doctors in the ESI hospital/dispensary and would tantamount to claiming benefit and the amount under the ESI Act provisions and would fall within clause (e) of Section 75(1) and, therefore, it is the Employees Insurance Court alone which has the jurisdiction to decide it.We are afraid that we cannot agree with the submission made by the learned counsel. Section 75 provides for the subjects on which the jurisdiction shall be exercised by the Employees Insurance Court. Clause (e) of Section 75(1) gives power to the Employees Insurance Court to adjudicate upon the dispute of the right of any person to any benefit and as to the amount and duration thereof. The benefit which has been referred to, has a reference to the benefits under the Act, i.e., the ESI Act. The Employees State Insurance (Central) Rules, 1950 (hereinafter referred to as "the Rules") have been framed in exercise of the powers under Section 95 of the ESI Act. Rule 56 provides for maternity benefits, Rule 57 for disablement benefits, Rule 58 for dependents benefits, Rule 60 for medical benefits to insured person who ceases to be in an insurable employment on account of permanent disablement and Rule 61 for medical benefits to retired insured persons. Thus, these are the benefits which are provided under the Rules to the employees and thefor which claim can be made in the Employees Insurance Court. The appellants claim has no relation to any of the benefits which are provided in the Rules for which the claim can be made in the Employees Insurance Court. The appellants claim is for damages for the negligence on the part of the ESI hospital/dispensary and the doctors working therein.19. A bare perusal of the provisions of clauses (a) to (g) of Section 75(1) clearly shows that it does not include claim for damages for medical negligence, like the present case which we are dealing with. Although the question does not directly arise before us, we shall consider what in the ordinary course shall constitute negligence.20. This Court has considered the principles of the law on negligence in Jacob Mathew v. State of Punjab and Another, (2005) 6 SCC 1. The jurisprudential concept of negligence defies any precise definition. Eminent jurists and leading judgments have assigned various meanings toof action for negligence arises only when damage occurs and thus the claimant has to satisfy the court on the evidence that three ingredients of negligence, namely, (a) existence of duty to take care; (b) failure to attain that standard of care; and (c) damage suffered on account of breach of duty, are present for the defendant to be held liable for negligence. Therefore, the claimant has to satisfy these ingredients before he can claim damages for medical negligence of the doctors and that could not be a question which could be adjudicated upon by the Employees Insurance Courts which have been given specific powers of the issues, which they can adjudicate and decide. Claim for damages for negligence of the doctors or the ESI hospital/dispensary is clearly beyond the jurisdictional power of the Employees Insurance Court. An Employees Insurance Court has jurisdiction to decide certain claims which fall under(2) of Section 75 of the ESI Act. A bare reading of Section 75(2) also does not indicate, in any manner, that the claim for damages for negligence would fall within the purview of the decisions being made by the Employees Insurance Court. Further, it can be seen that any claim arising out of and within the purview of the Employees Insurance Court is expressly barred by virtue of(3) to be adjudicated upon by a civil court, but there is no such express bar for the consumer forum to exercise the jurisdiction even if the subject matter of the claim or dispute falls within clauses (a) to (g) of(1) of Section 75 or where the jurisdiction to adjudicate upon the claim is vested with the Employees Insurance Court under clauses (a) to (f) of(2) of Section 75 if it is a consumers dispute falling under the CP Act.21. Having considered all these aspects, we are of the view that the appellant is a consumer within the ambit of Section 2(1)(d) of the Consumer Protection Act, 1986 and the medical service rendered in the ESI hospital/dispensary by the respondent Corporation falls within the ambit of Section 2(1)(o) of the Consumer Protection Act and, therefore, the consumer forum has jurisdiction to adjudicate upon the case of the appellant. We further hold that the jurisdiction of the consumer forum is not ousted by virtue of(1) or (2) or (3) of Section 75 of the Employees State Insurance Act, 1948. | 1 | 6,336 | 1,432 | ### 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 learned counsel for the respondent is that the claim made by the appellant before the consumer forum raises a dispute in regard to damages for negligence of doctors in the ESI hospital/dispensary and would tantamount to claiming benefit and the amount under the ESI Act provisions and would fall within clause (e) of Section 75(1) and, therefore, it is the Employees Insurance Court alone which has the jurisdiction to decide it. We are afraid that we cannot agree with the submission made by the learned counsel. Section 75 provides for the subjects on which the jurisdiction shall be exercised by the Employees Insurance Court. Clause (e) of Section 75(1) gives power to the Employees Insurance Court to adjudicate upon the dispute of the right of any person to any benefit and as to the amount and duration thereof. The benefit which has been referred to, has a reference to the benefits under the Act, i.e., the ESI Act. The Employees State Insurance (Central) Rules, 1950 (hereinafter referred to as "the Rules") have been framed in exercise of the powers under Section 95 of the ESI Act. Rule 56 provides for maternity benefits, Rule 57 for disablement benefits, Rule 58 for dependents benefits, Rule 60 for medical benefits to insured person who ceases to be in an insurable employment on account of permanent disablement and Rule 61 for medical benefits to retired insured persons. Thus, these are the benefits which are provided under the Rules to the employees and the ex-employees for which claim can be made in the Employees Insurance Court. The appellants claim has no relation to any of the benefits which are provided in the Rules for which the claim can be made in the Employees Insurance Court. The appellants claim is for damages for the negligence on the part of the ESI hospital/dispensary and the doctors working therein.19. A bare perusal of the provisions of clauses (a) to (g) of Section 75(1) clearly shows that it does not include claim for damages for medical negligence, like the present case which we are dealing with. Although the question does not directly arise before us, we shall consider what in the ordinary course shall constitute negligence.20. This Court has considered the principles of the law on negligence in Jacob Mathew v. State of Punjab and Another, (2005) 6 SCC 1. The jurisprudential concept of negligence defies any precise definition. Eminent jurists and leading judgments have assigned various meanings to negligence. The concept as has been acceptable to Indian jurisprudential thought is well-stated in the Law of Torts, Ratanlal & Dhirajlal (24th Ed. 2002, edited by Justice G.P. Singh). It is stated (at pp. 441-442): "Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property the definition involves three constituents of negligence:(1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the formers conduct within the scope of the duty;(2) breach of the said duty; and(3) consequential damage.Cause of action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort." Cause of action for negligence arises only when damage occurs and thus the claimant has to satisfy the court on the evidence that three ingredients of negligence, namely, (a) existence of duty to take care; (b) failure to attain that standard of care; and (c) damage suffered on account of breach of duty, are present for the defendant to be held liable for negligence. Therefore, the claimant has to satisfy these ingredients before he can claim damages for medical negligence of the doctors and that could not be a question which could be adjudicated upon by the Employees Insurance Courts which have been given specific powers of the issues, which they can adjudicate and decide. Claim for damages for negligence of the doctors or the ESI hospital/dispensary is clearly beyond the jurisdictional power of the Employees Insurance Court. An Employees Insurance Court has jurisdiction to decide certain claims which fall under sub-section (2) of Section 75 of the ESI Act. A bare reading of Section 75(2) also does not indicate, in any manner, that the claim for damages for negligence would fall within the purview of the decisions being made by the Employees Insurance Court. Further, it can be seen that any claim arising out of and within the purview of the Employees Insurance Court is expressly barred by virtue of sub-section (3) to be adjudicated upon by a civil court, but there is no such express bar for the consumer forum to exercise the jurisdiction even if the subject matter of the claim or dispute falls within clauses (a) to (g) of sub-section (1) of Section 75 or where the jurisdiction to adjudicate upon the claim is vested with the Employees Insurance Court under clauses (a) to (f) of sub-section (2) of Section 75 if it is a consumers dispute falling under the CP Act.21. Having considered all these aspects, we are of the view that the appellant is a consumer within the ambit of Section 2(1)(d) of the Consumer Protection Act, 1986 and the medical service rendered in the ESI hospital/dispensary by the respondent Corporation falls within the ambit of Section 2(1)(o) of the Consumer Protection Act and, therefore, the consumer forum has jurisdiction to adjudicate upon the case of the appellant. We further hold that the jurisdiction of the consumer forum is not ousted by virtue of sub-section (1) or (2) or (3) of Section 75 of the Employees State Insurance Act, 1948.
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free of charge. The person availing of such service under an insurance scheme of medical care, whereunder the charges for consultation, diagnosis and medical treatment are borne by the insurer, such service would fall within the ambit of ‘service as defined in Section 2(1)(o) of the CP Act. We are of the opinion that the service provided by the ESI hospital/dispensary falls within the ambit of ‘service as defined in Section 2(1)(o) of the CP Act. ESI scheme is an insurance scheme and it contributes for the service rendered by the ESI hospitals/dispensaries, of medical care in its hospitals/dispensaries, and as such service given in the ESI hospitals/dispensaries to a member of the Scheme or his family cannot be treated as gratuitous.15. We shall now proceed to consider the second question raised by Shri Vijay K. Mehta, the learned counsel for the respondent that by virtue of Section 74 read with Section 75, and particularly Section 75(e), of the ESI Act, the claim made by the appellant would exclusively fall for decision within the jurisdiction of the Employees Insurance Court and that being the position the consumer forum has no jurisdiction to adjudicate upon the issue.e submission of the learned counsel for the respondent is that the claim made by the appellant before the consumer forum raises a dispute in regard to damages for negligence of doctors in the ESI hospital/dispensary and would tantamount to claiming benefit and the amount under the ESI Act provisions and would fall within clause (e) of Section 75(1) and, therefore, it is the Employees Insurance Court alone which has the jurisdiction to decide it.We are afraid that we cannot agree with the submission made by the learned counsel. Section 75 provides for the subjects on which the jurisdiction shall be exercised by the Employees Insurance Court. Clause (e) of Section 75(1) gives power to the Employees Insurance Court to adjudicate upon the dispute of the right of any person to any benefit and as to the amount and duration thereof. The benefit which has been referred to, has a reference to the benefits under the Act, i.e., the ESI Act. The Employees State Insurance (Central) Rules, 1950 (hereinafter referred to as "the Rules") have been framed in exercise of the powers under Section 95 of the ESI Act. Rule 56 provides for maternity benefits, Rule 57 for disablement benefits, Rule 58 for dependents benefits, Rule 60 for medical benefits to insured person who ceases to be in an insurable employment on account of permanent disablement and Rule 61 for medical benefits to retired insured persons. Thus, these are the benefits which are provided under the Rules to the employees and thefor which claim can be made in the Employees Insurance Court. The appellants claim has no relation to any of the benefits which are provided in the Rules for which the claim can be made in the Employees Insurance Court. The appellants claim is for damages for the negligence on the part of the ESI hospital/dispensary and the doctors working therein.19. A bare perusal of the provisions of clauses (a) to (g) of Section 75(1) clearly shows that it does not include claim for damages for medical negligence, like the present case which we are dealing with. Although the question does not directly arise before us, we shall consider what in the ordinary course shall constitute negligence.20. This Court has considered the principles of the law on negligence in Jacob Mathew v. State of Punjab and Another, (2005) 6 SCC 1. The jurisprudential concept of negligence defies any precise definition. Eminent jurists and leading judgments have assigned various meanings toof action for negligence arises only when damage occurs and thus the claimant has to satisfy the court on the evidence that three ingredients of negligence, namely, (a) existence of duty to take care; (b) failure to attain that standard of care; and (c) damage suffered on account of breach of duty, are present for the defendant to be held liable for negligence. Therefore, the claimant has to satisfy these ingredients before he can claim damages for medical negligence of the doctors and that could not be a question which could be adjudicated upon by the Employees Insurance Courts which have been given specific powers of the issues, which they can adjudicate and decide. Claim for damages for negligence of the doctors or the ESI hospital/dispensary is clearly beyond the jurisdictional power of the Employees Insurance Court. An Employees Insurance Court has jurisdiction to decide certain claims which fall under(2) of Section 75 of the ESI Act. A bare reading of Section 75(2) also does not indicate, in any manner, that the claim for damages for negligence would fall within the purview of the decisions being made by the Employees Insurance Court. Further, it can be seen that any claim arising out of and within the purview of the Employees Insurance Court is expressly barred by virtue of(3) to be adjudicated upon by a civil court, but there is no such express bar for the consumer forum to exercise the jurisdiction even if the subject matter of the claim or dispute falls within clauses (a) to (g) of(1) of Section 75 or where the jurisdiction to adjudicate upon the claim is vested with the Employees Insurance Court under clauses (a) to (f) of(2) of Section 75 if it is a consumers dispute falling under the CP Act.21. Having considered all these aspects, we are of the view that the appellant is a consumer within the ambit of Section 2(1)(d) of the Consumer Protection Act, 1986 and the medical service rendered in the ESI hospital/dispensary by the respondent Corporation falls within the ambit of Section 2(1)(o) of the Consumer Protection Act and, therefore, the consumer forum has jurisdiction to adjudicate upon the case of the appellant. We further hold that the jurisdiction of the consumer forum is not ousted by virtue of(1) or (2) or (3) of Section 75 of the Employees State Insurance Act, 1948.
|
Board Of High School & Intermediate Education, U. P Vs. Ghanshyam Das Gupta And Others | In order to come to the conclusion that one or other of these facts is established, the Committee will have to depend upon materials placed before it, for in the very nature of things it has no personal knowledge in the matter. Therefore, though the Act or the Regulations do not make it obligatory on the Committee to call for an explanation and here the examinee, it is implicit in the provisions of R. 1 (1) that the Committee must satisfy itself on materials placed before it that one or other of the facts is established to enable it to take action in the matter. It will not be possible for the Committee to proceed at all unless materials are placed before it to determine whether the examinee concerned has committed some misconduct or the other which is the basis of the action to be taken under R. 1 (1). It is clear therefore that consideration of materials placed before it is necessary before the Committee can come to any decision in the exercise of its powers under R. 1 (1) and this can be the only manner in which the Committee can carry out the duties imposed on it. 11. We thus see that the Committee can only carry out its duties under R. 1 (1) by judging the materials, placed before it. It is true that there is no lis in the present case, in the sense that there are not two contesting parties before the Committee and the matter rests between the Committee and the examinee; at the same time considering that materials will have to be placed before the Committee to enable it to decide whether action should be taken under R. 1(1), it seems to us only fair that the examinee against whom the Committee is proceeding should also be heard. The effect of the decision of the Committee may in an extreme case blast the career of a young student for life and in any case will put a serious stigma on the examinee concerned which may damage him in later life.The nature of misconduct which the Committee has to find under R. 1 (1) in some cases is of a serious nature, for example, impersonation, commission of fraud, and perjury; and the Committees decision in matters of such seriousness may even lead in some cases to the prosecution of the examinee in courts. Considering therefore the serious effects following the decision of the Committee and the serious nature of the misconduct which may be found in some cases under R. 1 (1), it seems to us that the Committee must be held to act judicially in circumstances as these. Though therefore there is nothing express one way or the other in the Act or the Regulations casting a duty on the Committee to act judicially, the manner of the disposal, based as it must be on materials placed before it, and the serious effects of the decision of the Committee on the examinee concerned, must lead to the conclusion that a duty is cast on the Committee to act judicially in this matter particularly as it has to decide objectively certain facts which may seriously affect the rights and careers of examinees, before it can take any action in the exercise of its power under R. 1 (1). We are therefore of opinion that the Committee when it exercises its powers under R. 1 (1) is acting quasi-judicially and the principles of natural justice which require that the other party, (namely, the examinee in this case) must be heard, will apply to the proceedings before the Committee. This view was taken by the Calcutta High Court in Dipa Pal v. University of Calcutta, A. I. R. 1952 Cal. 594 and B. C. Das Gupta v. Bijoyranjan Rakshit, A. I. R, 1953 Cal. 212 in similar circumstances and is in our opinion correct. 12. It is urged on behalf of the appellant that there are a large number of cases which come up before the Committee under R. 1 (1), and if the Committee is held to act judicially as a quasi-judicial tribunal in the matter it will find it impossible to carry on its task. This in our opinion is no criterion for deciding whether a duty is cast to act judicially in view of all the circumstances of the case. There is no doubt in our mind that considering the totality of circumstances the Committee has to act judicially when taking action under R. 1 (1). As to the manner in which it should give an opportunity to the examinee concerned to be heard, that is a matter which can be provided by Regulations or Bye-laws if necessary: As was pointed out in Local Government Board v. Alridge, 1915 A. C. 120 all that is required is that the other party should have an opportunity of adequately presenting his case. But what the procedure should be in detail will depend on the nature of the tribunal. There is no doubt that many of the powers of the Committee under Chap. VI are of administrative nature ; but where quasi-judicial duties are entrusted to an administrative body like this it becomes a quasi-judicial body for performing these duties and it can prescribe its own procedure so long as the principles of natural justice are followed and adequate opportunity of presenting his case is given to the examinee. It is not however necessary to pursue this matter further, for it is not in dispute that no opportunity whatsoever was given to the respondents in this case to give an explanation and present their case before the Committee. We are therefore of opinion that though the view of the High Court that the Committee was acting merely administratively when proceeding under R. 1 (1) is not correct, its final decision allowing the writ petition on the ground that no opportunity was given to the respondents to put forward their cases before the Committee is correct. | 0[ds]9. We must therefore proceed to examine the provisions of the Act and the Regulations framed thereunder in connection with matters of this kind to determine whether the Committee can be said to have the duty to act judicially when it deals with cases of examinees using unfair means in examination halls. Under S.7 of the Act, the Board constituted thereunder has inter alia powers to prescribe courses of instruction, to grant diplomas and certificates, to conduct examinations to admit candidates to its examinations, to publish the results of its examinations, and to do all such things as may be requisite in order to further the objects of the Board as a body constituted for regulating and supervising High School and Intermediate education. Under Section 13, the Board has power to appoint and constitute various committees, including the examinations committee, and under S.14, the Board can delegate its powers by Regulations to such committees. Section 15 gives power to the Board to make Regulations with respect to the constitution, powers and duties of committees, the conduct of examinations, and all matters which by the Act may be provided for by Regulations. Section 20 gives power to the Board and its committees to make bye-laws consistent with the Act and the Regulations10. It will be clear from the above that the Act makes no express provisions as to the powers of the committees and the procedure to be adopted by them in carrying out their duties, which are left to be provided by Regulations, and we have therefore to look to the Regulations framed under S. 15 to see what powers and duties have been conferred on various committees constituted under the Regulations. Section 13 (1) makes it incumbent on the Board to appoint the Committee and Chap. VI of the Regulations deals with the powers and duties of the Committee11. We thus see that the Committee can only carry out its duties under R. 1 (1) by judging the materials, placed before it. It is true that there is no lis in the present case, in the sense that there are not two contesting parties before the Committee and the matter rests between the Committee and the examinee; at the same time considering that materials will have to be placed before the Committee to enable it to decide whether action should be taken under R. 1(1), it seems to us only fair that the examinee against whom the Committee is proceeding should also be heard. The effect of the decision of the Committee may in an extreme case blast the career of a young student for life and in any case will put a serious stigma on the examinee concerned which may damage him in later life.The nature of misconduct which the Committee has to find under R. 1 (1) in some cases is of a serious nature, for example, impersonation, commission of fraud, and perjury; and the Committees decision in matters of such seriousness may even lead in some cases to the prosecution of the examinee in courts. Considering therefore the serious effects following the decision of the Committee and the serious nature of the misconduct which may be found in some cases under R. 1 (1), it seems to us that the Committee must be held to act judicially in circumstances as these. Though therefore there is nothing express one way or the other in the Act or the Regulations casting a duty on the Committee to act judicially, the manner of the disposal, based as it must be on materials placed before it, and the serious effects of the decision of the Committee on the examinee concerned, must lead to the conclusion that a duty is cast on the Committee to act judicially in this matter particularly as it has to decide objectively certain facts which may seriously affect the rights and careers of examinees, before it can take any action in the exercise of its power under R. 1 (1). We are therefore of opinion that the Committee when it exercises its powers under R. 1 (1) is acting quasi-judicially and the principles of natural justice which require that the other party, (namely, the examinee in this case) must be heard, will apply to the proceedings before the CommitteeThere is no doubt in our mind that considering the totality of circumstances the Committee has to act judicially when taking action under R. 1 (1). As to the manner in which it should give an opportunity to the examinee concerned to be heard, that is a matter which can be provided by Regulations or Bye-laws if necessary: As was pointed out in Local Government Board v. Alridge, 1915 A. C. 120 all that is required is that the other party should have an opportunity of adequately presenting his case. But what the procedure should be in detail will depend on the nature of the tribunal. There is no doubt that many of the powers of the Committee under Chap. VI are of administrative nature ; but where quasi-judicial duties are entrusted to an administrative body like this it becomes a quasi-judicial body for performing these duties and it can prescribe its own procedure so long as the principles of natural justice are followed and adequate opportunity of presenting his case is given to the examinee. It is not however necessary to pursue this matter further, for it is not in dispute that no opportunity whatsoever was given to the respondents in this case to give an explanation and present their case before the Committee. We are therefore of opinion that though the view of the High Court that the Committee was acting merely administratively when proceeding under R. 1 (1) is not correct, its final decision allowing the writ petition on the ground that no opportunity was given to the respondents to put forward their cases before the Committee is correct. | 0 | 4,049 | 1,067 | ### 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:
In order to come to the conclusion that one or other of these facts is established, the Committee will have to depend upon materials placed before it, for in the very nature of things it has no personal knowledge in the matter. Therefore, though the Act or the Regulations do not make it obligatory on the Committee to call for an explanation and here the examinee, it is implicit in the provisions of R. 1 (1) that the Committee must satisfy itself on materials placed before it that one or other of the facts is established to enable it to take action in the matter. It will not be possible for the Committee to proceed at all unless materials are placed before it to determine whether the examinee concerned has committed some misconduct or the other which is the basis of the action to be taken under R. 1 (1). It is clear therefore that consideration of materials placed before it is necessary before the Committee can come to any decision in the exercise of its powers under R. 1 (1) and this can be the only manner in which the Committee can carry out the duties imposed on it. 11. We thus see that the Committee can only carry out its duties under R. 1 (1) by judging the materials, placed before it. It is true that there is no lis in the present case, in the sense that there are not two contesting parties before the Committee and the matter rests between the Committee and the examinee; at the same time considering that materials will have to be placed before the Committee to enable it to decide whether action should be taken under R. 1(1), it seems to us only fair that the examinee against whom the Committee is proceeding should also be heard. The effect of the decision of the Committee may in an extreme case blast the career of a young student for life and in any case will put a serious stigma on the examinee concerned which may damage him in later life.The nature of misconduct which the Committee has to find under R. 1 (1) in some cases is of a serious nature, for example, impersonation, commission of fraud, and perjury; and the Committees decision in matters of such seriousness may even lead in some cases to the prosecution of the examinee in courts. Considering therefore the serious effects following the decision of the Committee and the serious nature of the misconduct which may be found in some cases under R. 1 (1), it seems to us that the Committee must be held to act judicially in circumstances as these. Though therefore there is nothing express one way or the other in the Act or the Regulations casting a duty on the Committee to act judicially, the manner of the disposal, based as it must be on materials placed before it, and the serious effects of the decision of the Committee on the examinee concerned, must lead to the conclusion that a duty is cast on the Committee to act judicially in this matter particularly as it has to decide objectively certain facts which may seriously affect the rights and careers of examinees, before it can take any action in the exercise of its power under R. 1 (1). We are therefore of opinion that the Committee when it exercises its powers under R. 1 (1) is acting quasi-judicially and the principles of natural justice which require that the other party, (namely, the examinee in this case) must be heard, will apply to the proceedings before the Committee. This view was taken by the Calcutta High Court in Dipa Pal v. University of Calcutta, A. I. R. 1952 Cal. 594 and B. C. Das Gupta v. Bijoyranjan Rakshit, A. I. R, 1953 Cal. 212 in similar circumstances and is in our opinion correct. 12. It is urged on behalf of the appellant that there are a large number of cases which come up before the Committee under R. 1 (1), and if the Committee is held to act judicially as a quasi-judicial tribunal in the matter it will find it impossible to carry on its task. This in our opinion is no criterion for deciding whether a duty is cast to act judicially in view of all the circumstances of the case. There is no doubt in our mind that considering the totality of circumstances the Committee has to act judicially when taking action under R. 1 (1). As to the manner in which it should give an opportunity to the examinee concerned to be heard, that is a matter which can be provided by Regulations or Bye-laws if necessary: As was pointed out in Local Government Board v. Alridge, 1915 A. C. 120 all that is required is that the other party should have an opportunity of adequately presenting his case. But what the procedure should be in detail will depend on the nature of the tribunal. There is no doubt that many of the powers of the Committee under Chap. VI are of administrative nature ; but where quasi-judicial duties are entrusted to an administrative body like this it becomes a quasi-judicial body for performing these duties and it can prescribe its own procedure so long as the principles of natural justice are followed and adequate opportunity of presenting his case is given to the examinee. It is not however necessary to pursue this matter further, for it is not in dispute that no opportunity whatsoever was given to the respondents in this case to give an explanation and present their case before the Committee. We are therefore of opinion that though the view of the High Court that the Committee was acting merely administratively when proceeding under R. 1 (1) is not correct, its final decision allowing the writ petition on the ground that no opportunity was given to the respondents to put forward their cases before the Committee is correct.
### Response:
0
### Explanation:
9. We must therefore proceed to examine the provisions of the Act and the Regulations framed thereunder in connection with matters of this kind to determine whether the Committee can be said to have the duty to act judicially when it deals with cases of examinees using unfair means in examination halls. Under S.7 of the Act, the Board constituted thereunder has inter alia powers to prescribe courses of instruction, to grant diplomas and certificates, to conduct examinations to admit candidates to its examinations, to publish the results of its examinations, and to do all such things as may be requisite in order to further the objects of the Board as a body constituted for regulating and supervising High School and Intermediate education. Under Section 13, the Board has power to appoint and constitute various committees, including the examinations committee, and under S.14, the Board can delegate its powers by Regulations to such committees. Section 15 gives power to the Board to make Regulations with respect to the constitution, powers and duties of committees, the conduct of examinations, and all matters which by the Act may be provided for by Regulations. Section 20 gives power to the Board and its committees to make bye-laws consistent with the Act and the Regulations10. It will be clear from the above that the Act makes no express provisions as to the powers of the committees and the procedure to be adopted by them in carrying out their duties, which are left to be provided by Regulations, and we have therefore to look to the Regulations framed under S. 15 to see what powers and duties have been conferred on various committees constituted under the Regulations. Section 13 (1) makes it incumbent on the Board to appoint the Committee and Chap. VI of the Regulations deals with the powers and duties of the Committee11. We thus see that the Committee can only carry out its duties under R. 1 (1) by judging the materials, placed before it. It is true that there is no lis in the present case, in the sense that there are not two contesting parties before the Committee and the matter rests between the Committee and the examinee; at the same time considering that materials will have to be placed before the Committee to enable it to decide whether action should be taken under R. 1(1), it seems to us only fair that the examinee against whom the Committee is proceeding should also be heard. The effect of the decision of the Committee may in an extreme case blast the career of a young student for life and in any case will put a serious stigma on the examinee concerned which may damage him in later life.The nature of misconduct which the Committee has to find under R. 1 (1) in some cases is of a serious nature, for example, impersonation, commission of fraud, and perjury; and the Committees decision in matters of such seriousness may even lead in some cases to the prosecution of the examinee in courts. Considering therefore the serious effects following the decision of the Committee and the serious nature of the misconduct which may be found in some cases under R. 1 (1), it seems to us that the Committee must be held to act judicially in circumstances as these. Though therefore there is nothing express one way or the other in the Act or the Regulations casting a duty on the Committee to act judicially, the manner of the disposal, based as it must be on materials placed before it, and the serious effects of the decision of the Committee on the examinee concerned, must lead to the conclusion that a duty is cast on the Committee to act judicially in this matter particularly as it has to decide objectively certain facts which may seriously affect the rights and careers of examinees, before it can take any action in the exercise of its power under R. 1 (1). We are therefore of opinion that the Committee when it exercises its powers under R. 1 (1) is acting quasi-judicially and the principles of natural justice which require that the other party, (namely, the examinee in this case) must be heard, will apply to the proceedings before the CommitteeThere is no doubt in our mind that considering the totality of circumstances the Committee has to act judicially when taking action under R. 1 (1). As to the manner in which it should give an opportunity to the examinee concerned to be heard, that is a matter which can be provided by Regulations or Bye-laws if necessary: As was pointed out in Local Government Board v. Alridge, 1915 A. C. 120 all that is required is that the other party should have an opportunity of adequately presenting his case. But what the procedure should be in detail will depend on the nature of the tribunal. There is no doubt that many of the powers of the Committee under Chap. VI are of administrative nature ; but where quasi-judicial duties are entrusted to an administrative body like this it becomes a quasi-judicial body for performing these duties and it can prescribe its own procedure so long as the principles of natural justice are followed and adequate opportunity of presenting his case is given to the examinee. It is not however necessary to pursue this matter further, for it is not in dispute that no opportunity whatsoever was given to the respondents in this case to give an explanation and present their case before the Committee. We are therefore of opinion that though the view of the High Court that the Committee was acting merely administratively when proceeding under R. 1 (1) is not correct, its final decision allowing the writ petition on the ground that no opportunity was given to the respondents to put forward their cases before the Committee is correct.
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Sirpur Paper Mills Ltd Vs. The Collector Of Central Excise, Hyderabad | Suhas C. Sen, J. 1. The dispute in this case is about the leviability of excise duty on paper making machine which was erected by the appellant-company by using duty paid components purchased from the market and also by fabricating certain parts of the machinery in their factory. The duty paid components purchased from the market worked out to about 90% of the parts required for the machine. In respect of the parts fabricated inside the factory of the appellant, no duty was, leviable under Notification No. 118/75, dated April 30, 1975 issued by the Government. The case of the appellant is that the Excise authority erroneously imposed duty on the paper making machine installed in the factory of the appellant because the Central Excise Act imposes a duty on "all excisable goods produced or manufactured in India". It is well-settled that the "goods" contemplated by Section 3 which is the charging 7 section of the Act must be movable and marketable. The case of the appellant is that the various components of the paper making machine purchased by the appellant had to be put together at the site where the machine was erected and embedded in the ground. Certain components were also to be fabricated at site. This machine was really immovable property and did not come within the mischief of the charging section of the Central Excise Act. 2. Mr. Jaideep Gupta, appearing on behalf of the appellant, has contended that the machine was permanently attached to the ground. In fact the machine cannot be worked until and unless the same was attached to the earth as a permanent fixture. It was further argued that the machine cannot ordinarily be sold in the market. The nature of the machine is such that it cannot be transferred and offered for sale to any other party. An argument was also advanced that the machine was erected on turn key basis at the very place where the machine was ultimately embedded in a concrete base to make it a permanent fixture. 3. The Tribunal, however, rejected these contentions advanced before it on the basis of some findings of fact. The Tribunal held that the machine was attached to earth for operational efficiency. The whole purpose behind attaching the machine to a concrete base was to prevent wobbling of the machine and to secure maximum operational efficiency and also for safety. The Tribunal further held that the paper making machine was saleable and observed "if somebody wants to purchase, the whole machinery could be dismantled and sold to him in parts". 4. In view of this finding of fact, it is not possible to hold that the machinery assembled and erected by the appellant at its factory site was immovable property as something attached to earth like a building or a tree. The Tribunal has pointed out that it was for the operational efficiency of the machine that it was attached to earth. If the appellant wanted to sell the paper making machine it could always remove it from its base and sell it. 5. Apart from this finding of fact made by the Tribunal, the point advanced on behalf of the appellant, that whatever is embedded in earth must be treated as immovable property is basically not sound. For example, a factory owner or a house-holder may purchase a water pump and fix it on a cement base for operational efficiency and also for security. That will not make the water pump an item of immovable property. Some of the components of water pump may even be assembled on site. That too will not make any difference to the principle. The test is whether the paper making machine can be sold in the market. The Tribunal has found as a fact that it can be sold. In view of that finding, we are unable to uphold the contention of the appellant that the machine must be treated as a part of the immovable property of the company. Just because a plant and machinery are fixed in the earth for better functioning, it does not automatically become an immovable property. 6. A further argument was made that the entire machinery as it is cannot be bought and sold because the machinery will have to be dismantled before being sold. The Tribunal has pointed out that the appellant had himself bought several items and completed the machinery. It had purchased a large number of Components and fabricated a few and manufactured the paper making machine at site. If it is sold it has to be dismantled and reassembled at another site. We do not find any fault with the reasoning of the Tribunal on this aspect of the matter. 7. Lastly, it was contended that the paper making machine was not really manufactured by the appellant. Various components and parts were purchased and a few of the parts were fabricated at the factory and the assessee ultimately assembled various parts of the machine. We are unable to uphold this argument also because it has to be seen whether a final product is something distinct and apart from the components that have gone into its production. What the appellant has erected in its factory is a paper making machine. It may have purchased various components to make the machine but nonetheless what has been produced is something quite different from the components that had been purchased. A new marketable commodity has emerged as a result of the manufacturing activity of the appellant.8. Marketability being a question of fact, we are of the view there is no scope for interference with the order passed by the Tribunal. It cannot be said that the Tribunal has overlooked any material fact or its decision is perverse. | 0[ds]4. In view of this finding of fact, it is not possible to hold that the machinery assembled and erected by the appellant at its factory site was immovable property as something attached to earth like a building or a tree. The Tribunal has pointed out that it was for the operational efficiency of the machine that it was attached to earth. If the appellant wanted to sell the paper making machine it could always remove it from its base and sellview of that finding, we are unable to uphold the contention of the appellant that the machine must be treated as a part of the immovable property of the company. Just because a plant and machinery are fixed in the earth for better functioning, it does not automatically become an immovableWe are unable to uphold this argument also because it has to be seen whether a final product is something distinct and apart from the components that have gone into its production. What the appellant has erected in its factory is a paper making machine. It may have purchased various components to make the machine but nonetheless what has been produced is something quite different from the components that had been purchased. A new marketable commodity has emerged as a result of the manufacturing activity of the appellant.8. Marketability being a question of fact, we are of the view there is no scope for interference with the order passed by the Tribunal. It cannot be said that the Tribunal has overlooked any material fact or its decision is perverse. | 0 | 1,040 | 279 | ### 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:
Suhas C. Sen, J. 1. The dispute in this case is about the leviability of excise duty on paper making machine which was erected by the appellant-company by using duty paid components purchased from the market and also by fabricating certain parts of the machinery in their factory. The duty paid components purchased from the market worked out to about 90% of the parts required for the machine. In respect of the parts fabricated inside the factory of the appellant, no duty was, leviable under Notification No. 118/75, dated April 30, 1975 issued by the Government. The case of the appellant is that the Excise authority erroneously imposed duty on the paper making machine installed in the factory of the appellant because the Central Excise Act imposes a duty on "all excisable goods produced or manufactured in India". It is well-settled that the "goods" contemplated by Section 3 which is the charging 7 section of the Act must be movable and marketable. The case of the appellant is that the various components of the paper making machine purchased by the appellant had to be put together at the site where the machine was erected and embedded in the ground. Certain components were also to be fabricated at site. This machine was really immovable property and did not come within the mischief of the charging section of the Central Excise Act. 2. Mr. Jaideep Gupta, appearing on behalf of the appellant, has contended that the machine was permanently attached to the ground. In fact the machine cannot be worked until and unless the same was attached to the earth as a permanent fixture. It was further argued that the machine cannot ordinarily be sold in the market. The nature of the machine is such that it cannot be transferred and offered for sale to any other party. An argument was also advanced that the machine was erected on turn key basis at the very place where the machine was ultimately embedded in a concrete base to make it a permanent fixture. 3. The Tribunal, however, rejected these contentions advanced before it on the basis of some findings of fact. The Tribunal held that the machine was attached to earth for operational efficiency. The whole purpose behind attaching the machine to a concrete base was to prevent wobbling of the machine and to secure maximum operational efficiency and also for safety. The Tribunal further held that the paper making machine was saleable and observed "if somebody wants to purchase, the whole machinery could be dismantled and sold to him in parts". 4. In view of this finding of fact, it is not possible to hold that the machinery assembled and erected by the appellant at its factory site was immovable property as something attached to earth like a building or a tree. The Tribunal has pointed out that it was for the operational efficiency of the machine that it was attached to earth. If the appellant wanted to sell the paper making machine it could always remove it from its base and sell it. 5. Apart from this finding of fact made by the Tribunal, the point advanced on behalf of the appellant, that whatever is embedded in earth must be treated as immovable property is basically not sound. For example, a factory owner or a house-holder may purchase a water pump and fix it on a cement base for operational efficiency and also for security. That will not make the water pump an item of immovable property. Some of the components of water pump may even be assembled on site. That too will not make any difference to the principle. The test is whether the paper making machine can be sold in the market. The Tribunal has found as a fact that it can be sold. In view of that finding, we are unable to uphold the contention of the appellant that the machine must be treated as a part of the immovable property of the company. Just because a plant and machinery are fixed in the earth for better functioning, it does not automatically become an immovable property. 6. A further argument was made that the entire machinery as it is cannot be bought and sold because the machinery will have to be dismantled before being sold. The Tribunal has pointed out that the appellant had himself bought several items and completed the machinery. It had purchased a large number of Components and fabricated a few and manufactured the paper making machine at site. If it is sold it has to be dismantled and reassembled at another site. We do not find any fault with the reasoning of the Tribunal on this aspect of the matter. 7. Lastly, it was contended that the paper making machine was not really manufactured by the appellant. Various components and parts were purchased and a few of the parts were fabricated at the factory and the assessee ultimately assembled various parts of the machine. We are unable to uphold this argument also because it has to be seen whether a final product is something distinct and apart from the components that have gone into its production. What the appellant has erected in its factory is a paper making machine. It may have purchased various components to make the machine but nonetheless what has been produced is something quite different from the components that had been purchased. A new marketable commodity has emerged as a result of the manufacturing activity of the appellant.8. Marketability being a question of fact, we are of the view there is no scope for interference with the order passed by the Tribunal. It cannot be said that the Tribunal has overlooked any material fact or its decision is perverse.
### Response:
0
### Explanation:
4. In view of this finding of fact, it is not possible to hold that the machinery assembled and erected by the appellant at its factory site was immovable property as something attached to earth like a building or a tree. The Tribunal has pointed out that it was for the operational efficiency of the machine that it was attached to earth. If the appellant wanted to sell the paper making machine it could always remove it from its base and sellview of that finding, we are unable to uphold the contention of the appellant that the machine must be treated as a part of the immovable property of the company. Just because a plant and machinery are fixed in the earth for better functioning, it does not automatically become an immovableWe are unable to uphold this argument also because it has to be seen whether a final product is something distinct and apart from the components that have gone into its production. What the appellant has erected in its factory is a paper making machine. It may have purchased various components to make the machine but nonetheless what has been produced is something quite different from the components that had been purchased. A new marketable commodity has emerged as a result of the manufacturing activity of the appellant.8. Marketability being a question of fact, we are of the view there is no scope for interference with the order passed by the Tribunal. It cannot be said that the Tribunal has overlooked any material fact or its decision is perverse.
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Mohinder Singh & Another Vs. State of Delhi | Alagiriswami, J.1. This appeal by special leave is confined to the question of nature of the offence Committed by the accused. The facts giving rise to this appeal are as follows.2. Ram Sarup, Jot Ram and Prabhu were three brothers. Ram Sarup had three sons, Layak Ram, Dhani Ram and Chatru. Appellant Umed Singh is Dhani Rams son. Appellant Mohinder Singh is the son of Sultan, son of Prabhu Jot Ram who died issueless gave half of his property to layak Rams son Daya Nand (now deceased) and half to Umed Singh. After the death of Layak Ram his widow Rissalo, who has been examined as P.W. 1 in this case, married Chatru. As Mohinder Singh had been given no property disputes arose and as a result the two appellants and Dhani Ram were involved in an incident on 8-9-1968 in which Daya Nand lost his life. Soon after, for reasons which it is not possible to guess, Dhani Ram committed suicide by lying under a running train. Taking advantage of this fact it was urged on behalf of the appellants that it was Dhani Ram who was responsible for Daya Nands death and they pleaded alibi. The plea of alibi was disbelieved and the two appellants have been sentenced to life imprisonment for the murder of Daya Nand. It was also suggested that the injuries found on the legs and ankles of Dhani Ram were sustained when he grappled with, Daya Nand. We are in agreement with the learned Judges of the High Court that this cannot be accepted. Evidence establishes that Umed Singh hit Daya Nand with a brick and also with the back side of an axe which he carried, as a result of which Daya Nands skull cracked and he died though there were other injuries also. We are in agreement with the finding of the Trial Judge and the learned Judges of the High Court that the fractures in the skull of Daya Nand were caused not only by a brick but also by the blunt side of the Kulhari. The injuries caused by Mohinder Singh were not such as to cause the death of Daya Nand.3. We are, therefore, of opinion that while Umed Singh has been rightly convicted of the offence of the murder of Daya Nand. Mohinder Singh could not be so convicted unless it could be established that he shared a common intention with Umed to cause the death of Daya Nand or at least to cause such injury as would lead it the usual course of nature to Daya Nands death. We are not persuaded that the three men who were involved in the occurrence went there with the intention of causing Daya Nands death though there is evidence that they said they would kill him. That is probably an exaggeration. If the intention ,were to kill the wrong side of the axe would not have been used. While the knowledge that the injury he was causing would in the ordinary course of nature lead to Daya Nands death might be attributed to Umed Singh, it is not possible to attribute such knowledge to Mohinder Singh. It is not, therefore, possible to ascribe to Mohinder Singh a common intention along with Umed Singh to cause to Daya Nand such injury as would lead in the ordinary course of nature to his death. We are, therefore, of opinion that Mohinder Singh cannot be convicted of murder of Daya Nand under Section 302 I.P.C. read with Section 34. The result would be that he could be convicted only of causing hurt or at the most of grievous hurt to Daya Nand. | 1[ds]We are in agreement with the learned Judges of the High Court that this cannot be accepted. Evidence establishes that Umed Singh hit Daya Nand with a brick and also with the back side of an axe which he carried, as a result of which Daya Nands skull cracked and he died though there were other injuries also.We are in agreement with the finding of the Trial Judge and the learned Judges of the High Court that the fractures in the skull of Daya Nand were caused not only by a brick but also by the blunt side of the Kulhari. The injuries caused by Mohinder Singh were not such as to cause the death of Daya Nand.3. We are, therefore, of opinion that while Umed Singh has been rightly convicted of the offence of the murder of Daya Nand. Mohinder Singh could not be so convicted unless it could be established that he shared a common intention with Umed to cause the death of Daya Nand or at least to cause such injury as would lead it the usual course of nature to Daya Nands death. We are not persuaded that the three men who were involved in the occurrence went there with the intention of causing Daya Nands death though there is evidence that they said they would kill him. That is probably an exaggeration. If the intention ,were to kill the wrong side of the axe would not have been used. While the knowledge that the injury he was causing would in the ordinary course of nature lead to Daya Nands death might be attributed to Umed Singh, it is not possible to attribute such knowledge to Mohinder Singh. It is not, therefore, possible to ascribe to Mohinder Singh a common intention along with Umed Singh to cause to Daya Nand such injury as would lead in the ordinary course of nature to his death. We are, therefore, of opinion that Mohinder Singh cannot be convicted of murder of Daya Nand under Section 302 I.P.C. read with Section 34. The result would be that he could be convicted only of causing hurt or at the most of grievous hurt to Daya Nan | 1 | 660 | 392 | ### 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:
Alagiriswami, J.1. This appeal by special leave is confined to the question of nature of the offence Committed by the accused. The facts giving rise to this appeal are as follows.2. Ram Sarup, Jot Ram and Prabhu were three brothers. Ram Sarup had three sons, Layak Ram, Dhani Ram and Chatru. Appellant Umed Singh is Dhani Rams son. Appellant Mohinder Singh is the son of Sultan, son of Prabhu Jot Ram who died issueless gave half of his property to layak Rams son Daya Nand (now deceased) and half to Umed Singh. After the death of Layak Ram his widow Rissalo, who has been examined as P.W. 1 in this case, married Chatru. As Mohinder Singh had been given no property disputes arose and as a result the two appellants and Dhani Ram were involved in an incident on 8-9-1968 in which Daya Nand lost his life. Soon after, for reasons which it is not possible to guess, Dhani Ram committed suicide by lying under a running train. Taking advantage of this fact it was urged on behalf of the appellants that it was Dhani Ram who was responsible for Daya Nands death and they pleaded alibi. The plea of alibi was disbelieved and the two appellants have been sentenced to life imprisonment for the murder of Daya Nand. It was also suggested that the injuries found on the legs and ankles of Dhani Ram were sustained when he grappled with, Daya Nand. We are in agreement with the learned Judges of the High Court that this cannot be accepted. Evidence establishes that Umed Singh hit Daya Nand with a brick and also with the back side of an axe which he carried, as a result of which Daya Nands skull cracked and he died though there were other injuries also. We are in agreement with the finding of the Trial Judge and the learned Judges of the High Court that the fractures in the skull of Daya Nand were caused not only by a brick but also by the blunt side of the Kulhari. The injuries caused by Mohinder Singh were not such as to cause the death of Daya Nand.3. We are, therefore, of opinion that while Umed Singh has been rightly convicted of the offence of the murder of Daya Nand. Mohinder Singh could not be so convicted unless it could be established that he shared a common intention with Umed to cause the death of Daya Nand or at least to cause such injury as would lead it the usual course of nature to Daya Nands death. We are not persuaded that the three men who were involved in the occurrence went there with the intention of causing Daya Nands death though there is evidence that they said they would kill him. That is probably an exaggeration. If the intention ,were to kill the wrong side of the axe would not have been used. While the knowledge that the injury he was causing would in the ordinary course of nature lead to Daya Nands death might be attributed to Umed Singh, it is not possible to attribute such knowledge to Mohinder Singh. It is not, therefore, possible to ascribe to Mohinder Singh a common intention along with Umed Singh to cause to Daya Nand such injury as would lead in the ordinary course of nature to his death. We are, therefore, of opinion that Mohinder Singh cannot be convicted of murder of Daya Nand under Section 302 I.P.C. read with Section 34. The result would be that he could be convicted only of causing hurt or at the most of grievous hurt to Daya Nand.
### Response:
1
### Explanation:
We are in agreement with the learned Judges of the High Court that this cannot be accepted. Evidence establishes that Umed Singh hit Daya Nand with a brick and also with the back side of an axe which he carried, as a result of which Daya Nands skull cracked and he died though there were other injuries also.We are in agreement with the finding of the Trial Judge and the learned Judges of the High Court that the fractures in the skull of Daya Nand were caused not only by a brick but also by the blunt side of the Kulhari. The injuries caused by Mohinder Singh were not such as to cause the death of Daya Nand.3. We are, therefore, of opinion that while Umed Singh has been rightly convicted of the offence of the murder of Daya Nand. Mohinder Singh could not be so convicted unless it could be established that he shared a common intention with Umed to cause the death of Daya Nand or at least to cause such injury as would lead it the usual course of nature to Daya Nands death. We are not persuaded that the three men who were involved in the occurrence went there with the intention of causing Daya Nands death though there is evidence that they said they would kill him. That is probably an exaggeration. If the intention ,were to kill the wrong side of the axe would not have been used. While the knowledge that the injury he was causing would in the ordinary course of nature lead to Daya Nands death might be attributed to Umed Singh, it is not possible to attribute such knowledge to Mohinder Singh. It is not, therefore, possible to ascribe to Mohinder Singh a common intention along with Umed Singh to cause to Daya Nand such injury as would lead in the ordinary course of nature to his death. We are, therefore, of opinion that Mohinder Singh cannot be convicted of murder of Daya Nand under Section 302 I.P.C. read with Section 34. The result would be that he could be convicted only of causing hurt or at the most of grievous hurt to Daya Nan
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Shantiranjan Das Gupta Vs. M/s. Dasuram Murzamull | per maund of paddy, rice, khudi, gura, husks etc., will also go to M/s. Dasuram Murzamull.4. That this milling arrangement will continue till 31st Chaitra 1364 B.S."According to Shri Nag this agreement According to Shri Nag this agreement is merely a paper transaction designed to defeat the plaintiffs creditors because he was in a bad financial position. Reliance in support of the plaintiff-appellants version was placed on the evidence of the plaintiff himself as P.W. 1. According to his testimony he had in Baisakh 1363 B. S. entered into a partnership with Bijali Das Gupta. Renubora Das Gupta, Mihir Das Gupta and that the partnership was registered as such. The business, according to him, was being run even on the date of his evidence (December 9, 1957) under the same name and style. In 1948 the defendant firm entered into a partnership business with the plaintiff when he was the sole proprietor of his mill. Murzamull Babu in his capacity as managing partner of the defendant firm having entered into the partnership on behalf of that firm. There was, however, no written document executed for this partnership. Information regarding this partnership was sent to the bank concerned and to the Deputy Director of Procurement, Nowgong, orally. This witness had to admit that there was no written proof of the partnership nor was there any written record with respect to such partnership. The partnership was dissolved because the defendants men had left the mill with their stock when the plaintiff was out of Assam between August and October, 1948. Reference was also made to the testimony of Nirmal Chandra Basu (P.W. 2) who claims to have been an employee of the Assam Bank in 1948. According to him in the middle of January, 1948 he learnt that the plaintiff and the defendant had entered into a partnership. According to his evidence also the factum of the partnership was never reduced to writing. The other circumstances on which Shri Nag mainly placed reliance in support of the existence of the partnership are that the rates charged for milling by the plaintiff were much lower than the prevailing market rates and that the loading and unloading charges were also undertaken by the plaintiff. These circumstances, according to the learned counsel suggest that the milling agreement was merely a device or a paper transaction and that the real arrangement between the parties was that they were to do their business in partnership.6. In our opinion, the evidence to which our attention was drawn by Shri Nag is wholly inadequate for coming to the conclusion that the plaintiff-appellant and the defendant firm had entered into a contract of partnership as suggested on behalf of the plaintiff. It is inconceivable that the parties should have entered into an oral agreement of partnership without retaining any record of its terms and conditions. This is not the normal course of business. It is equally inconceivable that the partnership business should have maintained no accounts of its own, which would be open to inspection by both parties even though kept secret from the rest of the world. Absence of such accounts is conceded by the appellant before us. Maintenance of separate accounts by the plaintiff and the defendant firm as suggested by the appellant is no substitute for the maintenance of the accounts of the partnership business as such, accessible to both parties and, indeed, keeping only separate accounts by the parties would tend to negative rather than support the plea of partnership. Some of the other features which go against the appellants plea are: (1) no account of the partnership was opened with any bank and mere oral information with respect to the newly created partnership was sent to the bank and (2) no written intimation was conveyed to the Deputy Director of Procurement with respect to the newly created partnership, only oral information having been sent to him. The circumstances further render the story of the partnership more doubtful.7. Shri Nag submitted that the trial Court had on a consideration of the entire material come to a positive finding on issue no. 1 and that the High Court was, therefore, not justified in reversing it. The trial court, in our view, was influenced by considerations which are wholly inadequate for supporting the conclusion that the parties had entered into a partnership. According to the trial court the terms of partnership as reproduced in the plaint are reasonable whereas the terms contained in Ex. B suggest that the plaintiff had agreed to charge very low rates for milling the defendants paddy and he had also undertaken expenses for loading and unloading, which unfairly increased the financial burden on him without any corresponding remuneration. The trial court has also more than once made a reference to the likelihood of the parties making concealed profits from the partnership business and this in its view accounted for the absence of written deed of partnership. This reasoning is, in our view, too thin to satisfactorily explain or justify the extraordinary circumstance of complete absence of accounts even for the private use of the parties. Whenever the parties try to conceal the real nature of an agreement of partnership between them they almost invariably, in their own self-interest, take good care to have in their respective possession written records of their rights and liabilities as also of their partnership business dealings. They further try to keep full record of the accounts of the business. This conduct is guided by the ordinary rules of prudence which govern normal human behaviour. Those accounts no doubt may not be described or treated as official accounts of the partnership maintained in the ordinary course of business. They are intended to be kept strictly and exclusively for the personal and private use of the parties themselves. In the present case it is admitted on both sides that there is no such written record nor were any such accounts ever maintained by the parties for their own exclusive use. | 1[ds]5. Before us Shri Nag, the learned counsel for the appellant, has very fairly and frankly conceded that there is no written instrument of partnership. According to him the partnership was oral and was entered into some time on or about January 10,1948. We have on the record a written agreement between the parties Ex. B dated January 11, 1948. This agreement purports to be a milling hire arrangement between Santi Ranjan Das Gupta, proprietor of Das Gupta Rice Mills, Nojai Nowgongin this litigation) and Messrs Dasuram Murzamull of GauhatiAccording to this agreement, the plaintiff who was not able to run the mill business for himself entered into a milling hire arrangement with theIn our opinion, the evidence to which our attention was drawn by Shri Nag is wholly inadequate for coming to the conclusion that theand the defendant firm had entered into a contract of partnership as suggested on behalf of the plaintiff. It is inconceivable that the parties should have entered into an oral agreement of partnership without retaining any record of its terms and conditions. This is not the normal course of business. It is equally inconceivable that the partnership business should have maintained no accounts of its own, which would be open to inspection by both parties even though kept secret from the rest of the world. Absence of such accounts is conceded by the appellant before us. Maintenance of separate accounts by the plaintiff and the defendant firm as suggested by the appellant is no substitute for the maintenance of the accounts of the partnership business as such, accessible to both parties and, indeed, keeping only separate accounts by the parties would tend to negative rather than support the plea of partnership. Some of the other features which go against the appellants plea are: (1) no account of the partnership was opened with any bank and mere oral information with respect to the newly created partnership was sent to the bank and (2) no written intimation was conveyed to the Deputy Director of Procurement with respect to the newly created partnership, only oral information having been sent to him. The circumstances further render the story of the partnership more doubtful.7.Shri Nag submitted that the trial Court had on a consideration of the entire material come to a positive finding on issue no. 1 and that the High Court was, therefore, not justified in reversing it.The trial court, in our view, was influenced by considerations which are wholly inadequate for supporting the conclusion that the parties had entered into a partnership. According to the trial court the terms of partnership as reproduced in the plaint are reasonable whereas the terms contained in Ex. B suggest that the plaintiff had agreed to charge very low rates for milling the defendants paddy and he had also undertaken expenses for loading and unloading, which unfairly increased the financial burden on him without any corresponding remuneration. The trial court has also more than once made a reference to the likelihood of the parties making concealed profits from the partnership business and this in its view accounted for the absence of written deed of partnership. This reasoning is, in our view, too thin to satisfactorily explain or justify the extraordinary circumstance of complete absence of accounts even for the private use of the parties. Whenever the parties try to conceal the real nature of an agreement of partnership between them they almost invariably, in their owntake good care to have in their respective possession written records of their rights and liabilities as also of their partnership business dealings. They further try to keep full record of the accounts of the business. This conduct is guided by the ordinary rules of prudence which govern normal human behaviour. Those accounts no doubt may not be described or treated as official accounts of the partnership maintained in the ordinary course of business. They are intended to be kept strictly and exclusively for the personal and private use of the parties themselves. In the present case it is admitted on both sides that there is no such written record nor were any such accounts ever maintained by the parties for their own exclusive use. | 1 | 1,730 | 753 | ### 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:
per maund of paddy, rice, khudi, gura, husks etc., will also go to M/s. Dasuram Murzamull.4. That this milling arrangement will continue till 31st Chaitra 1364 B.S."According to Shri Nag this agreement According to Shri Nag this agreement is merely a paper transaction designed to defeat the plaintiffs creditors because he was in a bad financial position. Reliance in support of the plaintiff-appellants version was placed on the evidence of the plaintiff himself as P.W. 1. According to his testimony he had in Baisakh 1363 B. S. entered into a partnership with Bijali Das Gupta. Renubora Das Gupta, Mihir Das Gupta and that the partnership was registered as such. The business, according to him, was being run even on the date of his evidence (December 9, 1957) under the same name and style. In 1948 the defendant firm entered into a partnership business with the plaintiff when he was the sole proprietor of his mill. Murzamull Babu in his capacity as managing partner of the defendant firm having entered into the partnership on behalf of that firm. There was, however, no written document executed for this partnership. Information regarding this partnership was sent to the bank concerned and to the Deputy Director of Procurement, Nowgong, orally. This witness had to admit that there was no written proof of the partnership nor was there any written record with respect to such partnership. The partnership was dissolved because the defendants men had left the mill with their stock when the plaintiff was out of Assam between August and October, 1948. Reference was also made to the testimony of Nirmal Chandra Basu (P.W. 2) who claims to have been an employee of the Assam Bank in 1948. According to him in the middle of January, 1948 he learnt that the plaintiff and the defendant had entered into a partnership. According to his evidence also the factum of the partnership was never reduced to writing. The other circumstances on which Shri Nag mainly placed reliance in support of the existence of the partnership are that the rates charged for milling by the plaintiff were much lower than the prevailing market rates and that the loading and unloading charges were also undertaken by the plaintiff. These circumstances, according to the learned counsel suggest that the milling agreement was merely a device or a paper transaction and that the real arrangement between the parties was that they were to do their business in partnership.6. In our opinion, the evidence to which our attention was drawn by Shri Nag is wholly inadequate for coming to the conclusion that the plaintiff-appellant and the defendant firm had entered into a contract of partnership as suggested on behalf of the plaintiff. It is inconceivable that the parties should have entered into an oral agreement of partnership without retaining any record of its terms and conditions. This is not the normal course of business. It is equally inconceivable that the partnership business should have maintained no accounts of its own, which would be open to inspection by both parties even though kept secret from the rest of the world. Absence of such accounts is conceded by the appellant before us. Maintenance of separate accounts by the plaintiff and the defendant firm as suggested by the appellant is no substitute for the maintenance of the accounts of the partnership business as such, accessible to both parties and, indeed, keeping only separate accounts by the parties would tend to negative rather than support the plea of partnership. Some of the other features which go against the appellants plea are: (1) no account of the partnership was opened with any bank and mere oral information with respect to the newly created partnership was sent to the bank and (2) no written intimation was conveyed to the Deputy Director of Procurement with respect to the newly created partnership, only oral information having been sent to him. The circumstances further render the story of the partnership more doubtful.7. Shri Nag submitted that the trial Court had on a consideration of the entire material come to a positive finding on issue no. 1 and that the High Court was, therefore, not justified in reversing it. The trial court, in our view, was influenced by considerations which are wholly inadequate for supporting the conclusion that the parties had entered into a partnership. According to the trial court the terms of partnership as reproduced in the plaint are reasonable whereas the terms contained in Ex. B suggest that the plaintiff had agreed to charge very low rates for milling the defendants paddy and he had also undertaken expenses for loading and unloading, which unfairly increased the financial burden on him without any corresponding remuneration. The trial court has also more than once made a reference to the likelihood of the parties making concealed profits from the partnership business and this in its view accounted for the absence of written deed of partnership. This reasoning is, in our view, too thin to satisfactorily explain or justify the extraordinary circumstance of complete absence of accounts even for the private use of the parties. Whenever the parties try to conceal the real nature of an agreement of partnership between them they almost invariably, in their own self-interest, take good care to have in their respective possession written records of their rights and liabilities as also of their partnership business dealings. They further try to keep full record of the accounts of the business. This conduct is guided by the ordinary rules of prudence which govern normal human behaviour. Those accounts no doubt may not be described or treated as official accounts of the partnership maintained in the ordinary course of business. They are intended to be kept strictly and exclusively for the personal and private use of the parties themselves. In the present case it is admitted on both sides that there is no such written record nor were any such accounts ever maintained by the parties for their own exclusive use.
### Response:
1
### Explanation:
5. Before us Shri Nag, the learned counsel for the appellant, has very fairly and frankly conceded that there is no written instrument of partnership. According to him the partnership was oral and was entered into some time on or about January 10,1948. We have on the record a written agreement between the parties Ex. B dated January 11, 1948. This agreement purports to be a milling hire arrangement between Santi Ranjan Das Gupta, proprietor of Das Gupta Rice Mills, Nojai Nowgongin this litigation) and Messrs Dasuram Murzamull of GauhatiAccording to this agreement, the plaintiff who was not able to run the mill business for himself entered into a milling hire arrangement with theIn our opinion, the evidence to which our attention was drawn by Shri Nag is wholly inadequate for coming to the conclusion that theand the defendant firm had entered into a contract of partnership as suggested on behalf of the plaintiff. It is inconceivable that the parties should have entered into an oral agreement of partnership without retaining any record of its terms and conditions. This is not the normal course of business. It is equally inconceivable that the partnership business should have maintained no accounts of its own, which would be open to inspection by both parties even though kept secret from the rest of the world. Absence of such accounts is conceded by the appellant before us. Maintenance of separate accounts by the plaintiff and the defendant firm as suggested by the appellant is no substitute for the maintenance of the accounts of the partnership business as such, accessible to both parties and, indeed, keeping only separate accounts by the parties would tend to negative rather than support the plea of partnership. Some of the other features which go against the appellants plea are: (1) no account of the partnership was opened with any bank and mere oral information with respect to the newly created partnership was sent to the bank and (2) no written intimation was conveyed to the Deputy Director of Procurement with respect to the newly created partnership, only oral information having been sent to him. The circumstances further render the story of the partnership more doubtful.7.Shri Nag submitted that the trial Court had on a consideration of the entire material come to a positive finding on issue no. 1 and that the High Court was, therefore, not justified in reversing it.The trial court, in our view, was influenced by considerations which are wholly inadequate for supporting the conclusion that the parties had entered into a partnership. According to the trial court the terms of partnership as reproduced in the plaint are reasonable whereas the terms contained in Ex. B suggest that the plaintiff had agreed to charge very low rates for milling the defendants paddy and he had also undertaken expenses for loading and unloading, which unfairly increased the financial burden on him without any corresponding remuneration. The trial court has also more than once made a reference to the likelihood of the parties making concealed profits from the partnership business and this in its view accounted for the absence of written deed of partnership. This reasoning is, in our view, too thin to satisfactorily explain or justify the extraordinary circumstance of complete absence of accounts even for the private use of the parties. Whenever the parties try to conceal the real nature of an agreement of partnership between them they almost invariably, in their owntake good care to have in their respective possession written records of their rights and liabilities as also of their partnership business dealings. They further try to keep full record of the accounts of the business. This conduct is guided by the ordinary rules of prudence which govern normal human behaviour. Those accounts no doubt may not be described or treated as official accounts of the partnership maintained in the ordinary course of business. They are intended to be kept strictly and exclusively for the personal and private use of the parties themselves. In the present case it is admitted on both sides that there is no such written record nor were any such accounts ever maintained by the parties for their own exclusive use.
|
T. Stanes and Company Limited Vs. A. Jaffarullah | Being aggrieved and dissatisfied by the judgment and order dated 16-3-1994 passed by the High Court of Madras in Criminal OP No. 1633 of 1992 quashing the process issued in Criminal Complaint No. 356 of 1990 filed by the present appellant, the appellant has preferred this appeal. The appellant-complainant filed a private complaint against the respondent for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 alleging that the complainant supplied goods to the accused on credit and as on 31-3-1990 the respondent was liable to pay an amount of Rs. 1, 11, 465, towards the portion of the said liability, the accused-respondent issued a cheque dated 31-3-1990 for a sum of Rs. 48, 000 in favour of the complainant. The said cheque was dishonoured on the ground that it exceeded the arrangement. By a notice dated 27-6-1990 the complainant called upon the accused-respondent to pay the cheque amount within 15 days of the receipt of the notice. As the accused failed to pay the amount aforesaid, a complaint was filed before the IIIrd Judicial Magistrate, Coimbatore. The Magistrate issued process against the accused. That was challenged before the High Court and the High Court has quashed the complaint on the ground that without joining the partnership firm as the party-respondent, prosecution against the drawer of cheque was not maintainable.It has been rightly pointed out that the said question is covered by the decision rendered by this Court in Anil Hada v. Indian Acrylic Ltd. ( 1999 SC 853) Explaining Section 141 of the Act, this Court observed that 3 categories of persons can be brought within the purview of the penal liability through the legal fiction envisaged in the section. They are : (1) the company which committed the offence, (2) everyone who was in charge of and was responsible for the business of the company, and (3) any other person who is a Director or a Manager or a Secretary of the company, with whose connivance or due to whose neglect the company has committed the offence. The Court further specifically held that if the offence was committed by a company it can be punished only if the company is prosecuted. But instead of prosecuting the company if a payee opts to prosecute only the persons falling within the second or third category the payee can succeed in the case only if he succeeds in showing that the offence was actually committed by the company. The provisions do not contain a condition that prosecution of the company is a sine qua non for prosecution of other persons who fall within the second and the third categories mentioned therein. The Court held that even if the company is not prosecuted for one or the other reason, the other prosecuted persons cannot, on that score alone, escape from the penal liability created through the legal fiction envisaged in Section 141 of the Act. | 1[ds]It has been rightly pointed out that the said question is covered by the decision rendered by this Court in Anil Hada v. Indian Acrylic Ltd. ( 1999 SC 853) Explaining Section 141 of the Act, this Court observed that 3 categories of persons can be brought within the purview of the penal liability through the legal fiction envisaged in the section. They are : (1) the company which committed the offence, (2) everyone who was in charge of and was responsible for the business of the company, and (3) any other person who is a Director or a Manager or a Secretary of the company, with whose connivance or due to whose neglect the company has committed the offence. The Court further specifically held that if the offence was committed by a company it can be punished only if the company is prosecuted. But instead of prosecuting the company if a payee opts to prosecute only the persons falling within the second or third category the payee can succeed in the case only if he succeeds in showing that the offence was actually committed by the company. The provisions do not contain a condition that prosecution of the company is a sine qua non for prosecution of other persons who fall within the second and the third categories mentioned therein. The Court held that even if the company is not prosecuted for one or the other reason, the other prosecuted persons cannot, on that score alone, escape from the penal liability created through the legal fiction envisaged in Section 141 of the Act. | 1 | 527 | 289 | ### 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:
Being aggrieved and dissatisfied by the judgment and order dated 16-3-1994 passed by the High Court of Madras in Criminal OP No. 1633 of 1992 quashing the process issued in Criminal Complaint No. 356 of 1990 filed by the present appellant, the appellant has preferred this appeal. The appellant-complainant filed a private complaint against the respondent for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 alleging that the complainant supplied goods to the accused on credit and as on 31-3-1990 the respondent was liable to pay an amount of Rs. 1, 11, 465, towards the portion of the said liability, the accused-respondent issued a cheque dated 31-3-1990 for a sum of Rs. 48, 000 in favour of the complainant. The said cheque was dishonoured on the ground that it exceeded the arrangement. By a notice dated 27-6-1990 the complainant called upon the accused-respondent to pay the cheque amount within 15 days of the receipt of the notice. As the accused failed to pay the amount aforesaid, a complaint was filed before the IIIrd Judicial Magistrate, Coimbatore. The Magistrate issued process against the accused. That was challenged before the High Court and the High Court has quashed the complaint on the ground that without joining the partnership firm as the party-respondent, prosecution against the drawer of cheque was not maintainable.It has been rightly pointed out that the said question is covered by the decision rendered by this Court in Anil Hada v. Indian Acrylic Ltd. ( 1999 SC 853) Explaining Section 141 of the Act, this Court observed that 3 categories of persons can be brought within the purview of the penal liability through the legal fiction envisaged in the section. They are : (1) the company which committed the offence, (2) everyone who was in charge of and was responsible for the business of the company, and (3) any other person who is a Director or a Manager or a Secretary of the company, with whose connivance or due to whose neglect the company has committed the offence. The Court further specifically held that if the offence was committed by a company it can be punished only if the company is prosecuted. But instead of prosecuting the company if a payee opts to prosecute only the persons falling within the second or third category the payee can succeed in the case only if he succeeds in showing that the offence was actually committed by the company. The provisions do not contain a condition that prosecution of the company is a sine qua non for prosecution of other persons who fall within the second and the third categories mentioned therein. The Court held that even if the company is not prosecuted for one or the other reason, the other prosecuted persons cannot, on that score alone, escape from the penal liability created through the legal fiction envisaged in Section 141 of the Act.
### Response:
1
### Explanation:
It has been rightly pointed out that the said question is covered by the decision rendered by this Court in Anil Hada v. Indian Acrylic Ltd. ( 1999 SC 853) Explaining Section 141 of the Act, this Court observed that 3 categories of persons can be brought within the purview of the penal liability through the legal fiction envisaged in the section. They are : (1) the company which committed the offence, (2) everyone who was in charge of and was responsible for the business of the company, and (3) any other person who is a Director or a Manager or a Secretary of the company, with whose connivance or due to whose neglect the company has committed the offence. The Court further specifically held that if the offence was committed by a company it can be punished only if the company is prosecuted. But instead of prosecuting the company if a payee opts to prosecute only the persons falling within the second or third category the payee can succeed in the case only if he succeeds in showing that the offence was actually committed by the company. The provisions do not contain a condition that prosecution of the company is a sine qua non for prosecution of other persons who fall within the second and the third categories mentioned therein. The Court held that even if the company is not prosecuted for one or the other reason, the other prosecuted persons cannot, on that score alone, escape from the penal liability created through the legal fiction envisaged in Section 141 of the Act.
|
MUNICIPAL CORP. OF GREATER MUMBAI & ORS Vs. HIRAMAN SITARAM DEORUKHAR & ORS | and no development contrary to plan can be permitted.8. The importance of open spaces for parks and play grounds is of universal recognition, and reservation for such places in development scheme is a legitimate exercise of statutory power, with the rationale of protection of the environment and of reducing ill effects of urbanisation. It is in the public interest to avoid unnecessary conversion of ‘open spaces land? to strictly urban uses, for gardens provide fresh air, thereby protecting against the resultant impacts of urbanization, such as pollution etc. Once such a scheme had been prepared in accordance with the provisions of the MRTP Act, by inaction legislative intent could not be permitted to become a statutory mockery. Government authorities and officers were bound to preserve it and to take all steps envisaged for protection.9. It could be legitimately expected of the authority to take timely steps in which they have failed. Their inaction tantamount to wrongful deprivation of open spaces/garden to public. This Court in Animal and Environment Legal Defence Fund v. Union of India & Ors. (1997) 3 SCC 549 has laid down that there is duty to preserve the ecology of the forest area. This Court has enunciated the doctrine of the public trust based on ancient theory of Roman Empire. Idea of this theory was that certain common property such as lands, waters and airs were held by the Government in trusteeship for smooth and unimpaired use of public. Air, sea, waters and the forests have such a great importance to the people that it would be wholly unjustified to make them a subject of private ownership. The American courts in recent cases expanded the concept of this doctrine. The doctrine enjoins upon the Government to protect the natural resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. The aforesaid concept laid down by this Court in M.C. Mehta v. Kamal Nath & Ors. (1997) 1 SCC 388 and this Court held that the State Government has committed patent breach of public trust by leasing the ecologically fragile land to the Motel management.10. This Court in Vellore Citizens Welfare Forum v. Union of India & Ors. AIR 1996 SC 2715 had laid down that protection of environment is one of the legal duties. While setting up the industries which is essential for the economic development but measures should be taken to reduce the risk for community by taking all necessary steps for protection of environment. In M.C. Mehta v. Union of India (1987) Supp. SCC 131, certain directions were issued by this Court regarding hazardous chemicals. Relying partly on Article 21, it was observed that life, public health and ecology are priority and cannot be lost sight of over employment and loss of revenue. This Court in Subhash Kumar v. State of Bihar & Ors. (1991) 1 SCC 598 has held that right to pollution-free air falls within Article 21. In M.C. Mehta v. Kamal Nath (2000) 6 SCC 213 , it was held that any disturbance to the basic environment, air or water and soil which are necessary for life, would be hazardous to life within the meaning of Article 21 of the Constitution. Precautionary principle had been developed by this Court in M.C. Mehta v. Union of India & Ors. (1997) 3 SCC 715 which requires the State to anticipate, prevent and attack the causes of environmental degradation.11. This Court in Municipal Council, Ratlam v. Vardhichand & Ors. (1980) 4 SCC 162 has observed that the nature of judicial process is not purely adjudicatory function. Affirmative action to make the remedy effective is of the essence of the right which otherwise becomes fragile. This Court has laid down that once directive principles have found statutory recognition, the financial or such other disability cannot exonerate the authority from statutory liability. They cannot take the defence to defy their duties under the law by urging in self-defence a self-created bankruptcy or perverted expenditure budget.12. In the light of aforesaid principles, it is shocking in the instant case that in spite of prayer having been made on behalf of the Municipal Corporation, the State Government did not issue a declaration under Section 126 of the MRTP Act. Thus the provisions for open spaces in the statutory scheme were in effect made a statutory mockery. The authorities were bound to act with circumspection and to act timely to take steps to issue the requisite declaration as per development plan. They were well aware of the consequences. The inaction was impermissible in such an issue of great public importance, having constitutional imperative under Article 21 read with Article 48A and further it was in breach of fundamental duty imposed under Article 51A(g) to protect natural environment, and having the potential to lead to the derogation of the public interest. Such inaction is intolerable, and the area ought to be preserved for park only. More so, considering its situation that it is encircled by garden area, the court cannot be a moot spectator and permit statutory provisions to become a mockery by inaction or lethargy on the part of the unscrupulous authorities. No reason is coming forth as to why steps were not taken by the concerned authorities to act in the public interest, as per the statutory mandate, and as per development plan. The duty is cast upon the authorities to act as cestui que trust with respect to the public park. As a matter of fact, Authorities ought to have issued forthwith a requisite declaration and ought to have completed the proceedings. Be that as it may, since there is lapse of reservation, and the land is still required for public park, and since now the provisions of Right to Fare Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (in short the 2013 Act) have come into force, obviously the compensation has to be paid in accordance with the provisions contained in the said Act. | 1[ds]5. The Municipal Corporation had filed a Map (Annexure P-4) which indicates that the area marked with the green color is reserved for the purpose of the garden, whereas the area marked with red cross marks in the green color portion is disputed portion which is encircled by the other area reserved for the garden. The land under appeal is 3090 Sq. yard, whereas the total area reserved for the garden, is 90,500 Sq. yard. The area in question had been reserved for garden and it appears that Municipal Corporation had taken the steps which were in their hands in order to preserve the area as such. However, there was a failure on the part of the State Authorities to act timely and to issue a declaration under Section 6 of the Land Acquisition Act as required under the provisions contained in Section 126 of the MRTP Act6. It cannot be disputed that reservation made under Section 127 of the MRTP Act stands lapsed. At the same time area had been reserved for the garden.It could not have been permitted to lapse due to inexplicable reasons7. This court has laid down that public interest requires some areas to be preserved by means of open spaces of parks and play grounds, and that there cannot be any change or action contrary to legislative intent, as that would be an abuse of statutory powers vested in the authorities. Once the area had been reserved, authorities are bound to take steps to preserve it in that method and manner only. These spaces are meant for the common man, and there is a duty cast upon the authorities to preserve such spaces. Such matters are of great public concern and vital interest to be taken care of in the development scheme. The public interest requires not only reservation but also preservation of such parks and open spaces. In our opinion, such spaces cannot be permitted, by an action or inaction or otherwise, to be converted for some other purpose, and no development contrary to plan can be permitted8. The importance of open spaces for parks and play grounds is of universal recognition, and reservation for such places in development scheme is a legitimate exercise of statutory power, with the rationale of protection of the environment and of reducing ill effects of urbanisation. It is in the public interest to avoid unnecessary conversion of ‘open spaces land? to strictly urban uses, for gardens provide fresh air, thereby protecting against the resultant impacts of urbanization, such as pollution etc. Once such a scheme had been prepared in accordance with the provisions of the MRTP Act, by inaction legislative intent could not be permitted to become a statutory mockery. Government authorities and officers were bound to preserve it and to take all steps envisaged for protection9. It could be legitimately expected of the authority to take timely steps in which they have failed. Their inaction tantamount to wrongful deprivation of open spaces/garden to public. This Court in Animal and Environment Legal Defence Fund v. Union of India & Ors. (1997) 3 SCC 549 has laid down that there is duty to preserve the ecology of the forest area. This Court has enunciated the doctrine of the public trust based on ancient theory of Roman Empire. Idea of this theory was that certain common property such as lands, waters and airs were held by the Government in trusteeship for smooth and unimpaired use of public. Air, sea, waters and the forests have such a great importance to the people that it would be wholly unjustified to make them a subject of private ownership. The American courts in recent cases expanded the concept of this doctrine. The doctrine enjoins upon the Government to protect the natural resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. The aforesaid concept laid down by this Court in M.C. Mehta v. Kamal Nath & Ors. (1997) 1 SCC 388 and this Court held that the State Government has committed patent breach of public trust by leasing the ecologically fragile land to the Motel management12. In the light of aforesaid principles, it is shocking in the instant case that in spite of prayer having been made on behalf of the Municipal Corporation, the State Government did not issue a declaration under Section 126 of the MRTP Act. Thus the provisions for open spaces in the statutory scheme were in effect made a statutory mockery. The authorities were bound to act with circumspection and to act timely to take steps to issue the requisite declaration as per development plan. They were well aware of the consequences. The inaction was impermissible in such an issue of great public importance, having constitutional imperative under Article 21 read with Article 48A and further it was in breach of fundamental duty imposed under Article 51A(g) to protect natural environment, and having the potential to lead to the derogation of the public interest. Such inaction is intolerable, and the area ought to be preserved for park only. More so, considering its situation that it is encircled by garden area, the court cannot be a moot spectator and permit statutory provisions to become a mockery by inaction or lethargy on the part of the unscrupulous authorities. No reason is coming forth as to why steps were not taken by the concerned authorities to act in the public interest, as per the statutory mandate, and as per development plan. The duty is cast upon the authorities to act as cestui que trust with respect to the public park. As a matter of fact, Authorities ought to have issued forthwith a requisite declaration and ought to have completed the proceedings. Be that as it may, since there is lapse of reservation, and the land is still required for public park, and since now the provisions of Right to Fare Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (in short the 2013 Act) have come into force, obviously the compensation has to be paid in accordance with the provisions contained in the said Act. | 1 | 3,472 | 1,124 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
and no development contrary to plan can be permitted.8. The importance of open spaces for parks and play grounds is of universal recognition, and reservation for such places in development scheme is a legitimate exercise of statutory power, with the rationale of protection of the environment and of reducing ill effects of urbanisation. It is in the public interest to avoid unnecessary conversion of ‘open spaces land? to strictly urban uses, for gardens provide fresh air, thereby protecting against the resultant impacts of urbanization, such as pollution etc. Once such a scheme had been prepared in accordance with the provisions of the MRTP Act, by inaction legislative intent could not be permitted to become a statutory mockery. Government authorities and officers were bound to preserve it and to take all steps envisaged for protection.9. It could be legitimately expected of the authority to take timely steps in which they have failed. Their inaction tantamount to wrongful deprivation of open spaces/garden to public. This Court in Animal and Environment Legal Defence Fund v. Union of India & Ors. (1997) 3 SCC 549 has laid down that there is duty to preserve the ecology of the forest area. This Court has enunciated the doctrine of the public trust based on ancient theory of Roman Empire. Idea of this theory was that certain common property such as lands, waters and airs were held by the Government in trusteeship for smooth and unimpaired use of public. Air, sea, waters and the forests have such a great importance to the people that it would be wholly unjustified to make them a subject of private ownership. The American courts in recent cases expanded the concept of this doctrine. The doctrine enjoins upon the Government to protect the natural resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. The aforesaid concept laid down by this Court in M.C. Mehta v. Kamal Nath & Ors. (1997) 1 SCC 388 and this Court held that the State Government has committed patent breach of public trust by leasing the ecologically fragile land to the Motel management.10. This Court in Vellore Citizens Welfare Forum v. Union of India & Ors. AIR 1996 SC 2715 had laid down that protection of environment is one of the legal duties. While setting up the industries which is essential for the economic development but measures should be taken to reduce the risk for community by taking all necessary steps for protection of environment. In M.C. Mehta v. Union of India (1987) Supp. SCC 131, certain directions were issued by this Court regarding hazardous chemicals. Relying partly on Article 21, it was observed that life, public health and ecology are priority and cannot be lost sight of over employment and loss of revenue. This Court in Subhash Kumar v. State of Bihar & Ors. (1991) 1 SCC 598 has held that right to pollution-free air falls within Article 21. In M.C. Mehta v. Kamal Nath (2000) 6 SCC 213 , it was held that any disturbance to the basic environment, air or water and soil which are necessary for life, would be hazardous to life within the meaning of Article 21 of the Constitution. Precautionary principle had been developed by this Court in M.C. Mehta v. Union of India & Ors. (1997) 3 SCC 715 which requires the State to anticipate, prevent and attack the causes of environmental degradation.11. This Court in Municipal Council, Ratlam v. Vardhichand & Ors. (1980) 4 SCC 162 has observed that the nature of judicial process is not purely adjudicatory function. Affirmative action to make the remedy effective is of the essence of the right which otherwise becomes fragile. This Court has laid down that once directive principles have found statutory recognition, the financial or such other disability cannot exonerate the authority from statutory liability. They cannot take the defence to defy their duties under the law by urging in self-defence a self-created bankruptcy or perverted expenditure budget.12. In the light of aforesaid principles, it is shocking in the instant case that in spite of prayer having been made on behalf of the Municipal Corporation, the State Government did not issue a declaration under Section 126 of the MRTP Act. Thus the provisions for open spaces in the statutory scheme were in effect made a statutory mockery. The authorities were bound to act with circumspection and to act timely to take steps to issue the requisite declaration as per development plan. They were well aware of the consequences. The inaction was impermissible in such an issue of great public importance, having constitutional imperative under Article 21 read with Article 48A and further it was in breach of fundamental duty imposed under Article 51A(g) to protect natural environment, and having the potential to lead to the derogation of the public interest. Such inaction is intolerable, and the area ought to be preserved for park only. More so, considering its situation that it is encircled by garden area, the court cannot be a moot spectator and permit statutory provisions to become a mockery by inaction or lethargy on the part of the unscrupulous authorities. No reason is coming forth as to why steps were not taken by the concerned authorities to act in the public interest, as per the statutory mandate, and as per development plan. The duty is cast upon the authorities to act as cestui que trust with respect to the public park. As a matter of fact, Authorities ought to have issued forthwith a requisite declaration and ought to have completed the proceedings. Be that as it may, since there is lapse of reservation, and the land is still required for public park, and since now the provisions of Right to Fare Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (in short the 2013 Act) have come into force, obviously the compensation has to be paid in accordance with the provisions contained in the said Act.
### Response:
1
### Explanation:
with red cross marks in the green color portion is disputed portion which is encircled by the other area reserved for the garden. The land under appeal is 3090 Sq. yard, whereas the total area reserved for the garden, is 90,500 Sq. yard. The area in question had been reserved for garden and it appears that Municipal Corporation had taken the steps which were in their hands in order to preserve the area as such. However, there was a failure on the part of the State Authorities to act timely and to issue a declaration under Section 6 of the Land Acquisition Act as required under the provisions contained in Section 126 of the MRTP Act6. It cannot be disputed that reservation made under Section 127 of the MRTP Act stands lapsed. At the same time area had been reserved for the garden.It could not have been permitted to lapse due to inexplicable reasons7. This court has laid down that public interest requires some areas to be preserved by means of open spaces of parks and play grounds, and that there cannot be any change or action contrary to legislative intent, as that would be an abuse of statutory powers vested in the authorities. Once the area had been reserved, authorities are bound to take steps to preserve it in that method and manner only. These spaces are meant for the common man, and there is a duty cast upon the authorities to preserve such spaces. Such matters are of great public concern and vital interest to be taken care of in the development scheme. The public interest requires not only reservation but also preservation of such parks and open spaces. In our opinion, such spaces cannot be permitted, by an action or inaction or otherwise, to be converted for some other purpose, and no development contrary to plan can be permitted8. The importance of open spaces for parks and play grounds is of universal recognition, and reservation for such places in development scheme is a legitimate exercise of statutory power, with the rationale of protection of the environment and of reducing ill effects of urbanisation. It is in the public interest to avoid unnecessary conversion of ‘open spaces land? to strictly urban uses, for gardens provide fresh air, thereby protecting against the resultant impacts of urbanization, such as pollution etc. Once such a scheme had been prepared in accordance with the provisions of the MRTP Act, by inaction legislative intent could not be permitted to become a statutory mockery. Government authorities and officers were bound to preserve it and to take all steps envisaged for protection9. It could be legitimately expected of the authority to take timely steps in which they have failed. Their inaction tantamount to wrongful deprivation of open spaces/garden to public. This Court in Animal and Environment Legal Defence Fund v. Union of India & Ors. (1997) 3 SCC 549 has laid down that there is duty to preserve the ecology of the forest area. This Court has enunciated the doctrine of the public trust based on ancient theory of Roman Empire. Idea of this theory was that certain common property such as lands, waters and airs were held by the Government in trusteeship for smooth and unimpaired use of public. Air, sea, waters and the forests have such a great importance to the people that it would be wholly unjustified to make them a subject of private ownership. The American courts in recent cases expanded the concept of this doctrine. The doctrine enjoins upon the Government to protect the natural resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. The aforesaid concept laid down by this Court in M.C. Mehta v. Kamal Nath & Ors. (1997) 1 SCC 388 and this Court held that the State Government has committed patent breach of public trust by leasing the ecologically fragile land to the Motel management12. In the light of aforesaid principles, it is shocking in the instant case that in spite of prayer having been made on behalf of the Municipal Corporation, the State Government did not issue a declaration under Section 126 of the MRTP Act. Thus the provisions for open spaces in the statutory scheme were in effect made a statutory mockery. The authorities were bound to act with circumspection and to act timely to take steps to issue the requisite declaration as per development plan. They were well aware of the consequences. The inaction was impermissible in such an issue of great public importance, having constitutional imperative under Article 21 read with Article 48A and further it was in breach of fundamental duty imposed under Article 51A(g) to protect natural environment, and having the potential to lead to the derogation of the public interest. Such inaction is intolerable, and the area ought to be preserved for park only. More so, considering its situation that it is encircled by garden area, the court cannot be a moot spectator and permit statutory provisions to become a mockery by inaction or lethargy on the part of the unscrupulous authorities. No reason is coming forth as to why steps were not taken by the concerned authorities to act in the public interest, as per the statutory mandate, and as per development plan. The duty is cast upon the authorities to act as cestui que trust with respect to the public park. As a matter of fact, Authorities ought to have issued forthwith a requisite declaration and ought to have completed the proceedings. Be that as it may, since there is lapse of reservation, and the land is still required for public park, and since now the provisions of Right to Fare Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (in short the 2013 Act) have come into force, obviously the compensation has to be paid in accordance with the provisions contained in the said Act.
|
Yeswant Deorao Deshmukh Vs. Walchand Ramchand Kothari | the benefit of S. 18, Limitation Act. It was next urged on behalf of the appellant that under S. 48 (2), Civil P. C., because of the fraud of the respondent the appellant got a fresh starting point of limitation for the Limitation Act also and therefore the starting point contemplated in Col.3 of the schedule to the Limitation Act relating to applications for execution should be the date when the fraud was discovered by the appellant. In other words, it was argued that the effect of S. 48 was not merely to make the 12 years period start from the discovery of fraud for the purpose of S. 48 (2), Civil P. C., but also to give a fresh starting point for the schedule to the Limitation Act. This argument cannot be accepted. If a man is prevented from making an application, because of the fraud of the debtor, he is not necessarily prevented from knowing his right to make the application. By the enactment of S. 18, the Legislature has distinctly contemplated that for the Limitation Act the starting point is changed on the ground of fraud, only when the knowledge of the right to make the application is prevented by the fraud of the judgment-debtor. Having the knowledge that he had the right to make the application, if the judgment-debtor prevents the decree-holder from knowing the existence of certain properties against which the decree could be enforced, the case is clearly not covered by the words of S. 18, Limitation Act. Therefore the argument advanced on behalf of the appellant is unsound.23. It was argued that the various starting points mentioned in Col. 3 to Art. 182, Limitation Act cannot apply because none of them specify a fresh starting point for execution required on the ground of the fraud of the judgment-debtor. This argument, in our opinion, instead of helping the appellant, goes against him. Such a provision in Col. 3 in the Article relating to execution of decrees is not necessary because provision for such a contingency is made in S. 18. Affirmatively by the inclusion of S. 18 in the Limitation Act, and, negatively, by not providing for a separate period of limitation in the case of the fraud of the judgment debtor in Col. 3 in the Articles, the Legislature has clearly indicated that unless advantage could be taken by the decree-holder under S. 18 on the ground of the fraud of the judgment-debtor, fraud does not give any other relief under the Limitation Act. This scheme of the Legislature is not inconsistent with S. 48, Civil P. C. The two provisions in the two Acts have to be read as related to the same subject but dealing with two different aspects. Without S. 48, Civil P. C., a decree-holder, if he made applications as required by Art. 181 or 182, Limitation Act, could keep his decree alive for an indefinite period. The Legislature, as a matter of policy, ruled that a decree of a civil Court (but excluding the High Court) shall not be kept alive for more than 12 years, although all necessary steps are taken under the Limitation Act to keep the decree alive and operative. That is one limit to the right of the decree-holder to enforce the decree of the Court. The second limitation to his right, which is independent of the first, is that he must keep the decree alive under Art. 182 or 181, as the case may be. In the case of the fraud of the judgment-debtor provision is made in S. 48 (2) for enlarging the 12 years period prescribed under S. 48. For defeating the plea of the bar of limitation under the Limitation Act, in the case of fraud of the judgment-debtor, provision is found in S. 18, Limitation Act. If the particular case of fraud set up and proved is not covered by those words, there is no protection against the same in the Limitation Act. Read in that way, the two legislative provisions are neither conflicting nor overlapping; and they are capable of operating harmoniously, as they deal with different situations and circumstances. The argument advanced on behalf of the appellant that because of the fraud he got not merely a fresh starting point for computing the 12 years period prescribed in S. 48 (2), Civil P. C., but is also entitled to an extension of the time under the Limitation Act must, therefore, fail.24. The second contention urged on behalf of the appellant that because in Col. 3 of Art. 182 fraud is not mentioned, the case is covered by Art. 181 does not also appear to be bound. Column 3 in Art.182 prescribes the parting point of limitation under different specified circumstances. It does not, and indeed deed not, mention the ground of fraud because fraud of the kind against which the Limitation Act contemplates relief, as prescribed in 18, Limitation Act, is established, the time automatically altered by operation of that Section. If the case does not fall under that Section, no relief is permitted under the Limitation Act and the starting point for computing the period must be as mentioned in Col.3 irrespective of the question of fraud. In our opinion, therefore, the contention that because if the fraud established in the present case under S. 48 (2), Civil P. C., the appellant gets a fresh starting point of limitation under Art. 182, limitation Act is unacceptable.25. The appellant relied on the general principle of jurisprudence that fraud stops or suspends the running of time and that it should be applied in his favour, apart from S. 18, Limitation Act. Rules of equity have no application where there are definite statutory provisions specifying the grounds on the basis of which alone the stoppage or suspension of running of time can arise. While the Courts necessarily are astute in checkmating or fighting fraud, it should be equally borne in mind that statutes of limitation are statutes of repose. | 0[ds]This line of reasoning is hardly convincing, when we have to consider whether what is attributed to the judgment-debtor does not amount to a fraudulent scheme or device for preventing execution of the decree that had been passed against him for a very large sum of money. In the very nature of things, fraud is secret in its origin or inception and in the means adopted for its success. Each circumstance by itself may not mean much, but taking all of them together, they may reveal a fraudulent or dishonest plan.In our opinion, the facts necessary to establish fraud under S. 18, Limitation Act, are neither admitted nor proved in the present case. Concealing from a person the knowledge of his right to apply for execution of a decree is undoubtedly different from preventing him from exercising his right, of which he has knowledge. Section18, Limitation Act, postulates the former alternative. To read it as referring to an application for execution to proceed against a particular property would be destructive of the oneness of the decree and would lead to multiplicity of periods of limitation. It is true that Arts. 181 and 189, Limitation Act and S. 48, Civil P. C., should be read together. The Articles expressly refer to the Section. But they are independent or parallel provisions, different in their scope and object. As held in Kolyanasundaram Pillai v. Vaithilinga Vannias, I. L. R. (1939) Mad. 611 : (A.I.R. (26) 1939 Mad. 270) S. 48 (2) extends the 12 years period of closure by a further period of similar duration but the necessity of resort to Art. 182 is not thereby obviated. The decree-holder must have been taking steps to keep the decree alive and the only circumstance that could relieve him of this obligation is the existence of fraud under S.18, Limitation Act. The learned advocate of the appellant asked how it could be possible for him to apply in execution when there was the fraud and whether the law contemplated that, even though the fraud prevented execution of the decree, he was to go on filing useless or futile applications every three years merely for keeping the decree alive. The answer is simple. The fraud pleaded, namely suppression of ownership of the Prabhat newspaper, did not conceal from him his right to make an application for execution of the decree. Indeed, the suppression, which began in 1938, did not prevent the decree-holder from applying for execution in 1940; and in his answers in cross-examination, he has admitted that there were other properties to his knowledge against which he could have sought execution, viz., deposits in several banks of the judgment-debtors monies but standing in his wifes or daughters names, life insurance policies for which premia were being paid by him, law books written and published by him, movable properties in the house at Poona etc. As a matter of fact, the appellants present application seeks execution against several of these properties. Nothing prevented him, therefore, from seeking such execution within 3 years of the dismissal of his prior application in 1940. Even with reference to the Prabhat, all that the decree-holder states is that as he had no evidence to prove that the concern belonged to the defendant he did not take any steps, and not that he had no knowledge of the ownership.It is thus clear that the appellant cannot get the benefit of S. 18, Limitation Act. It was next urged on behalf of the appellant that under S. 48 (2), Civil P. C., because of the fraud of the respondent the appellant got a fresh starting point of limitation for the Limitation Act also and therefore the starting point contemplated in Col.3 of the schedule to the Limitation Act relating to applications for execution should be the date when the fraud was discovered by the appellant. In other words, it was argued that the effect of S. 48 was not merely to make the 12 years period start from the discovery of fraud for the purpose of S. 48 (2), Civil P. C., but also to give a fresh starting point for the schedule to the Limitation Act. This argument cannot be accepted. If a man is prevented from making an application, because of the fraud of the debtor, he is not necessarily prevented from knowing his right to make the application. By the enactment of S. 18, the Legislature has distinctly contemplated that for the Limitation Act the starting point is changed on the ground of fraud, only when the knowledge of the right to make the application is prevented by the fraud of the judgment-debtor. Having the knowledge that he had the right to make the application, if the judgment-debtor prevents the decree-holder from knowing the existence of certain properties against which the decree could be enforced, the case is clearly not covered by the words of S. 18, Limitation Act. Therefore the argument advanced on behalf of the appellant isargument, in our opinion, instead of helping the appellant, goes against him. Such a provision in Col. 3 in the Article relating to execution of decrees is not necessary because provision for such a contingency is made in S. 18. Affirmatively by the inclusion of S. 18 in the Limitation Act, and, negatively, by not providing for a separate period of limitation in the case of the fraud of the judgment debtor in Col. 3 in the Articles, the Legislature has clearly indicated that unless advantage could be taken by the decree-holder under S. 18 on the ground of the fraud of the judgment-debtor, fraud does not give any other relief under the Limitation Act. This scheme of the Legislature is not inconsistent with S. 48, Civil P. C. The two provisions in the two Acts have to be read as related to the same subject but dealing with two different aspects. Without S. 48, Civil P. C., a decree-holder, if he made applications as required by Art. 181 or 182, Limitation Act, could keep his decree alive for an indefinite period. The Legislature, as a matter of policy, ruled that a decree of a civil Court (but excluding the High Court) shall not be kept alive for more than 12 years, although all necessary steps are taken under the Limitation Act to keep the decree alive and operative. That is one limit to the right of the decree-holder to enforce the decree of the Court. The second limitation to his right, which is independent of the first, is that he must keep the decree alive under Art. 182 or 181, as the case may be. In the case of the fraud of the judgment-debtor provision is made in S. 48 (2) for enlarging the 12 years period prescribed under S. 48. For defeating the plea of the bar of limitation under the Limitation Act, in the case of fraud of the judgment-debtor, provision is found in S. 18, Limitation Act. If the particular case of fraud set up and proved is not covered by those words, there is no protection against the same in the Limitation Act. Read in that way, the two legislative provisions are neither conflicting nor overlapping; and they are capable of operating harmoniously, as they deal with different situations and circumstances. The argument advanced on behalf of the appellant that because of the fraud he got not merely a fresh starting point for computing the 12 years period prescribed in S. 48 (2), Civil P. C., but is also entitled to an extension of the time under the Limitation Act must, therefore, fail.does not, and indeed deed not, mention the ground of fraud because fraud of the kind against which the Limitation Act contemplates relief, as prescribed in 18, Limitation Act, is established, the time automatically altered by operation of that Section. If the case does not fall under that Section, no relief is permitted under the Limitation Act and the starting point for computing the period must be as mentioned in Col.3 irrespective of the question of fraud. In our opinion, therefore, the contention that because if the fraud established in the present case under S. 48 (2), Civil P. C., the appellant gets a fresh starting point of limitation under Art. 182, limitation Act isof equity have no application where there are definite statutory provisions specifying the grounds on the basis of which alone the stoppage or suspension of running of time can arise. While the Courts necessarily are astute in checkmating or fighting fraud, it should be equally borne in mind that statutes of limitation are statutes of repose. | 0 | 5,771 | 1,602 | ### 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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the benefit of S. 18, Limitation Act. It was next urged on behalf of the appellant that under S. 48 (2), Civil P. C., because of the fraud of the respondent the appellant got a fresh starting point of limitation for the Limitation Act also and therefore the starting point contemplated in Col.3 of the schedule to the Limitation Act relating to applications for execution should be the date when the fraud was discovered by the appellant. In other words, it was argued that the effect of S. 48 was not merely to make the 12 years period start from the discovery of fraud for the purpose of S. 48 (2), Civil P. C., but also to give a fresh starting point for the schedule to the Limitation Act. This argument cannot be accepted. If a man is prevented from making an application, because of the fraud of the debtor, he is not necessarily prevented from knowing his right to make the application. By the enactment of S. 18, the Legislature has distinctly contemplated that for the Limitation Act the starting point is changed on the ground of fraud, only when the knowledge of the right to make the application is prevented by the fraud of the judgment-debtor. Having the knowledge that he had the right to make the application, if the judgment-debtor prevents the decree-holder from knowing the existence of certain properties against which the decree could be enforced, the case is clearly not covered by the words of S. 18, Limitation Act. Therefore the argument advanced on behalf of the appellant is unsound.23. It was argued that the various starting points mentioned in Col. 3 to Art. 182, Limitation Act cannot apply because none of them specify a fresh starting point for execution required on the ground of the fraud of the judgment-debtor. This argument, in our opinion, instead of helping the appellant, goes against him. Such a provision in Col. 3 in the Article relating to execution of decrees is not necessary because provision for such a contingency is made in S. 18. Affirmatively by the inclusion of S. 18 in the Limitation Act, and, negatively, by not providing for a separate period of limitation in the case of the fraud of the judgment debtor in Col. 3 in the Articles, the Legislature has clearly indicated that unless advantage could be taken by the decree-holder under S. 18 on the ground of the fraud of the judgment-debtor, fraud does not give any other relief under the Limitation Act. This scheme of the Legislature is not inconsistent with S. 48, Civil P. C. The two provisions in the two Acts have to be read as related to the same subject but dealing with two different aspects. Without S. 48, Civil P. C., a decree-holder, if he made applications as required by Art. 181 or 182, Limitation Act, could keep his decree alive for an indefinite period. The Legislature, as a matter of policy, ruled that a decree of a civil Court (but excluding the High Court) shall not be kept alive for more than 12 years, although all necessary steps are taken under the Limitation Act to keep the decree alive and operative. That is one limit to the right of the decree-holder to enforce the decree of the Court. The second limitation to his right, which is independent of the first, is that he must keep the decree alive under Art. 182 or 181, as the case may be. In the case of the fraud of the judgment-debtor provision is made in S. 48 (2) for enlarging the 12 years period prescribed under S. 48. For defeating the plea of the bar of limitation under the Limitation Act, in the case of fraud of the judgment-debtor, provision is found in S. 18, Limitation Act. If the particular case of fraud set up and proved is not covered by those words, there is no protection against the same in the Limitation Act. Read in that way, the two legislative provisions are neither conflicting nor overlapping; and they are capable of operating harmoniously, as they deal with different situations and circumstances. The argument advanced on behalf of the appellant that because of the fraud he got not merely a fresh starting point for computing the 12 years period prescribed in S. 48 (2), Civil P. C., but is also entitled to an extension of the time under the Limitation Act must, therefore, fail.24. The second contention urged on behalf of the appellant that because in Col. 3 of Art. 182 fraud is not mentioned, the case is covered by Art. 181 does not also appear to be bound. Column 3 in Art.182 prescribes the parting point of limitation under different specified circumstances. It does not, and indeed deed not, mention the ground of fraud because fraud of the kind against which the Limitation Act contemplates relief, as prescribed in 18, Limitation Act, is established, the time automatically altered by operation of that Section. If the case does not fall under that Section, no relief is permitted under the Limitation Act and the starting point for computing the period must be as mentioned in Col.3 irrespective of the question of fraud. In our opinion, therefore, the contention that because if the fraud established in the present case under S. 48 (2), Civil P. C., the appellant gets a fresh starting point of limitation under Art. 182, limitation Act is unacceptable.25. The appellant relied on the general principle of jurisprudence that fraud stops or suspends the running of time and that it should be applied in his favour, apart from S. 18, Limitation Act. Rules of equity have no application where there are definite statutory provisions specifying the grounds on the basis of which alone the stoppage or suspension of running of time can arise. While the Courts necessarily are astute in checkmating or fighting fraud, it should be equally borne in mind that statutes of limitation are statutes of repose.
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0
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viz., deposits in several banks of the judgment-debtors monies but standing in his wifes or daughters names, life insurance policies for which premia were being paid by him, law books written and published by him, movable properties in the house at Poona etc. As a matter of fact, the appellants present application seeks execution against several of these properties. Nothing prevented him, therefore, from seeking such execution within 3 years of the dismissal of his prior application in 1940. Even with reference to the Prabhat, all that the decree-holder states is that as he had no evidence to prove that the concern belonged to the defendant he did not take any steps, and not that he had no knowledge of the ownership.It is thus clear that the appellant cannot get the benefit of S. 18, Limitation Act. It was next urged on behalf of the appellant that under S. 48 (2), Civil P. C., because of the fraud of the respondent the appellant got a fresh starting point of limitation for the Limitation Act also and therefore the starting point contemplated in Col.3 of the schedule to the Limitation Act relating to applications for execution should be the date when the fraud was discovered by the appellant. In other words, it was argued that the effect of S. 48 was not merely to make the 12 years period start from the discovery of fraud for the purpose of S. 48 (2), Civil P. C., but also to give a fresh starting point for the schedule to the Limitation Act. This argument cannot be accepted. If a man is prevented from making an application, because of the fraud of the debtor, he is not necessarily prevented from knowing his right to make the application. By the enactment of S. 18, the Legislature has distinctly contemplated that for the Limitation Act the starting point is changed on the ground of fraud, only when the knowledge of the right to make the application is prevented by the fraud of the judgment-debtor. Having the knowledge that he had the right to make the application, if the judgment-debtor prevents the decree-holder from knowing the existence of certain properties against which the decree could be enforced, the case is clearly not covered by the words of S. 18, Limitation Act. Therefore the argument advanced on behalf of the appellant isargument, in our opinion, instead of helping the appellant, goes against him. Such a provision in Col. 3 in the Article relating to execution of decrees is not necessary because provision for such a contingency is made in S. 18. Affirmatively by the inclusion of S. 18 in the Limitation Act, and, negatively, by not providing for a separate period of limitation in the case of the fraud of the judgment debtor in Col. 3 in the Articles, the Legislature has clearly indicated that unless advantage could be taken by the decree-holder under S. 18 on the ground of the fraud of the judgment-debtor, fraud does not give any other relief under the Limitation Act. This scheme of the Legislature is not inconsistent with S. 48, Civil P. C. The two provisions in the two Acts have to be read as related to the same subject but dealing with two different aspects. Without S. 48, Civil P. C., a decree-holder, if he made applications as required by Art. 181 or 182, Limitation Act, could keep his decree alive for an indefinite period. The Legislature, as a matter of policy, ruled that a decree of a civil Court (but excluding the High Court) shall not be kept alive for more than 12 years, although all necessary steps are taken under the Limitation Act to keep the decree alive and operative. That is one limit to the right of the decree-holder to enforce the decree of the Court. The second limitation to his right, which is independent of the first, is that he must keep the decree alive under Art. 182 or 181, as the case may be. In the case of the fraud of the judgment-debtor provision is made in S. 48 (2) for enlarging the 12 years period prescribed under S. 48. For defeating the plea of the bar of limitation under the Limitation Act, in the case of fraud of the judgment-debtor, provision is found in S. 18, Limitation Act. If the particular case of fraud set up and proved is not covered by those words, there is no protection against the same in the Limitation Act. Read in that way, the two legislative provisions are neither conflicting nor overlapping; and they are capable of operating harmoniously, as they deal with different situations and circumstances. The argument advanced on behalf of the appellant that because of the fraud he got not merely a fresh starting point for computing the 12 years period prescribed in S. 48 (2), Civil P. C., but is also entitled to an extension of the time under the Limitation Act must, therefore, fail.does not, and indeed deed not, mention the ground of fraud because fraud of the kind against which the Limitation Act contemplates relief, as prescribed in 18, Limitation Act, is established, the time automatically altered by operation of that Section. If the case does not fall under that Section, no relief is permitted under the Limitation Act and the starting point for computing the period must be as mentioned in Col.3 irrespective of the question of fraud. In our opinion, therefore, the contention that because if the fraud established in the present case under S. 48 (2), Civil P. C., the appellant gets a fresh starting point of limitation under Art. 182, limitation Act isof equity have no application where there are definite statutory provisions specifying the grounds on the basis of which alone the stoppage or suspension of running of time can arise. While the Courts necessarily are astute in checkmating or fighting fraud, it should be equally borne in mind that statutes of limitation are statutes of repose.
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N. Satyanathan Vs. K. Subramanyan And Others | consent. There was no question but that there was lawful consideration.The permit for the stage carriage had been granted by the authority under the Motor Vehicles Act; and the agreement for transport of postal articles and mail bags was between the Government of India in the Postal Department and the appellant for a cash consideration.9. But it was argued that the agreement was in pursuance of a pre-existing obligation imposed by the rule aforesaid framed under the Motor Vehicles Act.It is true that the permit does contain a condition that the permit-holder may be called upon to undertake transport of mail bags and postal articles but that is only a notice to intending applicants for a stage carriage permit that the grantee of such a permit may have to render that additional service for an additional remuneration if called upon to do so by the authorities of the Postal Department. If any one was not prepared to undertake that additional responsibility, he was free not to make an application for such a permit; but that does not mean that the agreement actually entered into between the Postal Department and the permit holder is not an independent contract governed by its own special terms.As indicated above, clause 18 has reserved the right to either party to terminate the contract on giving four months notice. The appellant must be presumed to have known that the agreement that he had entered into with the Postal Department will stand in the way of his running as a candidate for election to the Central or the State Legislature. There was nothing to prevent him from giving the necessary notice to the department and thus terminate his agreement so as, to be free to stand as a candidate for election to the legislature.Section 7 of the Act is intended to ensure that there is no occasion for a conflict between public duty and private interests. The appellant had a clear and free choice before him. If he was anxious to serve the community as a member of the Central Legislature, he had to give up his private gains in the shape of the remuneration for carrying postal articles and mail bags in his buses.It may be that on his terminating the agreement with the postal department he would have to give up his stage carriage permit also but not necessarily so. If on the same route a number of bus services are permitted to different parties, the Postal Department may choose anyone of them to enter into the agreement for the carriage of mail bags and postal articles. But even if there was only one service for the route in respect of which the appellant held the stage carriage permit, if he had to give up his permit, some other party would take his place for running the bus service and carrying the postal articles and mail bags.10. It was further argued that the appellant had no hand in the fixing of the remuneration to be paid by the Postal Department for carrying its mails, etc. But it is clear, by a reference to the terms of the rule quoted above that the amount of the remuneration had to be fixed by the department after consultation with the carrier. It was always open to the latter to demur to the terms proposed by the department and if he found that the department was not prepared to accept his norms he was not bound to enter into the agreement.The fact that he had agreed to carry postal articles and mail bags was possibly an additional qualification for him to obtain a renewal of his permit and thus gave him an advantage over his competitors. Hence instead of being an additional burden or a handicap to him, it was an additional advantage to him in the matter of getting a renewal of his permit in preference to others. The agreement was therefore based on mutual promises, by the appellant to carry the mail bags, etc., and by the Postal Department to pay him suitable remuneration for the services thus rendered.11. It was further contended on behalf of the appellant that the Central Government could not be said to have undertaken any service within the meaning of S. 7(d) of the Act when it made arrangements for the carriage of mail bags and postal articles through the appellant. It has not been and cannot be contended that the Government is bound in the discharge of its duties as a sovereign State to make provision for postal mail service. The provisions of the Indian Post Office Act, VI of 1898, are only enabling in the sense that they authorise the State agency to have the exclusive privilege of conveying letters, etc. for the convenience of the public and for the benefit of the Government, without making it obligatory upon it to provide every individual and every place with those facilities.12. It may be that those facilities are being extended from time to time and are being brought nearer to every home but that is only evidence of the fact that the State as a welfare state is anxious to provide for the conveniences of the public in the matter of communications and correspondence. That is to say the Government in the Postal Department has only undertaken a service to be rendered to the community and that such a service is not an essential function of a sovereign state.13. It cannot be gainsaid that the Government in the Postal Department is rendering a very useful service and that the appellant has by his contract with the Government undertaken to render that kind of service on a specified route. The present case is a straightforward illustration of the kind of contract contemplated by S. 7(d) of the Act.At all material times the appellant has been directly concerned, for his own benefit in the contract of carrying mail bags and postal articles entered into by him with the Government in the Postal Department.14. | 1[ds]7. In our opinion, there is no substance in any one of these contentions. It is true that the appellant entered into the contract aforesaid with the Central Government for the transport of postal articles and mail bags on the 16th November, 1949. From before that date he had been carrying on the business of plying buses on the route allotted to him by the Regional Transport Authority. But he entered into the contract with his eyes open and knowing full well his rights and liabilities under the same.No one is compelied to carry on the business of stage carriage service or for the matter of that, of transporting postal articles and mail bags. In terms of the permit, it is open to the Government to call upon a permit holder to undertake the additional burden of carrying postal articles and mail bags which carries with it the additional remuneration to be fixed by the Transport Authority after consultation with the postal authorities and the carrier. It is not every stage carriage permit holder who is called upon to do so.At the time the appellant entered into the contract with the Government in the postal department he may not have had any idea of standing for election to the House of the People when in future the general elections came to be held. If he wished to steer clear of the difficulty created by S. 7 of the Act, he could have given due notice to Government under Cl. 18 of the contract referred to above. On the expiry of the term of the notice he would have been free to stand for election to a State or Central Legislature. Section 7 of the Act is clearly intended to avoid a conflict between public duty and privateis true that the permit does contain a condition that the permit-holder may be called upon to undertake transport of mail bags and postal articles but that is only a notice to intending applicants for a stage carriage permit that the grantee of such a permit may have to render that additional service for an additional remuneration if called upon to do so by the authorities of the Postal Department. If any one was not prepared to undertake that additional responsibility, he was free not to make an application for such a permit; but that does not mean that the agreement actually entered into between the Postal Department and the permit holder is not an independent contract governed by its own special terms.It was further argued that the appellant had no hand in the fixing of the remuneration to be paid by the Postal Department for carrying its mails, etc. But it is clear, by a reference to the terms of the rule quoted above that the amount of the remuneration had to be fixed by the department after consultation with the carrier. It was always open to the latter to demur to the terms proposed by the department and if he found that the department was not prepared to accept his norms he was not bound to enter into the agreement.The fact that he had agreed to carry postal articles and mail bags was possibly an additional qualification for him to obtain a renewal of his permit and thus gave him an advantage over his competitors. Hence instead of being an additional burden or a handicap to him, it was an additional advantage to him in the matter of getting a renewal of his permit in preference to others. The agreement was therefore based on mutual promises, by the appellant to carry the mail bags, etc., and by the Postal Department to pay him suitable remuneration for the services thus rendered.11. It was further contended on behalf of the appellant that the Central Government could not be said to have undertaken any service within the meaning of S. 7(d) of the Act when it made arrangements for the carriage of mail bags and postal articles through the appellant. It has not been and cannot be contended that the Government is bound in the discharge of its duties as a sovereign State to make provision for postal mail service. The provisions of the Indian Post Office Act, VI of 1898, are only enabling in the sense that they authorise the State agency to have the exclusive privilege of conveying letters, etc. for the convenience of the public and for the benefit of the Government, without making it obligatory upon it to provide every individual and every place with thosemay be that those facilities are being extended from time to time and are being brought nearer to every home but that is only evidence of the fact that the State as a welfare state is anxious to provide for the conveniences of the public in the matter of communications and correspondence. That is to say the Government in the Postal Department has only undertaken a service to be rendered to the community and that such a service is not an essential function of a sovereigncannot be gainsaid that the Government in the Postal Department is rendering a very useful service and that the appellant has by his contract with the Government undertaken to render that kind of service on a specified route. The present case is a straightforward illustration of the kind of contract contemplated by S. 7(d) of the Act.At all material times the appellant has been directly concerned, for his own benefit in the contract of carrying mail bags and postal articles entered into by him with the Government in the Postal Department. | 1 | 3,799 | 981 | ### Instruction:
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consent. There was no question but that there was lawful consideration.The permit for the stage carriage had been granted by the authority under the Motor Vehicles Act; and the agreement for transport of postal articles and mail bags was between the Government of India in the Postal Department and the appellant for a cash consideration.9. But it was argued that the agreement was in pursuance of a pre-existing obligation imposed by the rule aforesaid framed under the Motor Vehicles Act.It is true that the permit does contain a condition that the permit-holder may be called upon to undertake transport of mail bags and postal articles but that is only a notice to intending applicants for a stage carriage permit that the grantee of such a permit may have to render that additional service for an additional remuneration if called upon to do so by the authorities of the Postal Department. If any one was not prepared to undertake that additional responsibility, he was free not to make an application for such a permit; but that does not mean that the agreement actually entered into between the Postal Department and the permit holder is not an independent contract governed by its own special terms.As indicated above, clause 18 has reserved the right to either party to terminate the contract on giving four months notice. The appellant must be presumed to have known that the agreement that he had entered into with the Postal Department will stand in the way of his running as a candidate for election to the Central or the State Legislature. There was nothing to prevent him from giving the necessary notice to the department and thus terminate his agreement so as, to be free to stand as a candidate for election to the legislature.Section 7 of the Act is intended to ensure that there is no occasion for a conflict between public duty and private interests. The appellant had a clear and free choice before him. If he was anxious to serve the community as a member of the Central Legislature, he had to give up his private gains in the shape of the remuneration for carrying postal articles and mail bags in his buses.It may be that on his terminating the agreement with the postal department he would have to give up his stage carriage permit also but not necessarily so. If on the same route a number of bus services are permitted to different parties, the Postal Department may choose anyone of them to enter into the agreement for the carriage of mail bags and postal articles. But even if there was only one service for the route in respect of which the appellant held the stage carriage permit, if he had to give up his permit, some other party would take his place for running the bus service and carrying the postal articles and mail bags.10. It was further argued that the appellant had no hand in the fixing of the remuneration to be paid by the Postal Department for carrying its mails, etc. But it is clear, by a reference to the terms of the rule quoted above that the amount of the remuneration had to be fixed by the department after consultation with the carrier. It was always open to the latter to demur to the terms proposed by the department and if he found that the department was not prepared to accept his norms he was not bound to enter into the agreement.The fact that he had agreed to carry postal articles and mail bags was possibly an additional qualification for him to obtain a renewal of his permit and thus gave him an advantage over his competitors. Hence instead of being an additional burden or a handicap to him, it was an additional advantage to him in the matter of getting a renewal of his permit in preference to others. The agreement was therefore based on mutual promises, by the appellant to carry the mail bags, etc., and by the Postal Department to pay him suitable remuneration for the services thus rendered.11. It was further contended on behalf of the appellant that the Central Government could not be said to have undertaken any service within the meaning of S. 7(d) of the Act when it made arrangements for the carriage of mail bags and postal articles through the appellant. It has not been and cannot be contended that the Government is bound in the discharge of its duties as a sovereign State to make provision for postal mail service. The provisions of the Indian Post Office Act, VI of 1898, are only enabling in the sense that they authorise the State agency to have the exclusive privilege of conveying letters, etc. for the convenience of the public and for the benefit of the Government, without making it obligatory upon it to provide every individual and every place with those facilities.12. It may be that those facilities are being extended from time to time and are being brought nearer to every home but that is only evidence of the fact that the State as a welfare state is anxious to provide for the conveniences of the public in the matter of communications and correspondence. That is to say the Government in the Postal Department has only undertaken a service to be rendered to the community and that such a service is not an essential function of a sovereign state.13. It cannot be gainsaid that the Government in the Postal Department is rendering a very useful service and that the appellant has by his contract with the Government undertaken to render that kind of service on a specified route. The present case is a straightforward illustration of the kind of contract contemplated by S. 7(d) of the Act.At all material times the appellant has been directly concerned, for his own benefit in the contract of carrying mail bags and postal articles entered into by him with the Government in the Postal Department.14.
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7. In our opinion, there is no substance in any one of these contentions. It is true that the appellant entered into the contract aforesaid with the Central Government for the transport of postal articles and mail bags on the 16th November, 1949. From before that date he had been carrying on the business of plying buses on the route allotted to him by the Regional Transport Authority. But he entered into the contract with his eyes open and knowing full well his rights and liabilities under the same.No one is compelied to carry on the business of stage carriage service or for the matter of that, of transporting postal articles and mail bags. In terms of the permit, it is open to the Government to call upon a permit holder to undertake the additional burden of carrying postal articles and mail bags which carries with it the additional remuneration to be fixed by the Transport Authority after consultation with the postal authorities and the carrier. It is not every stage carriage permit holder who is called upon to do so.At the time the appellant entered into the contract with the Government in the postal department he may not have had any idea of standing for election to the House of the People when in future the general elections came to be held. If he wished to steer clear of the difficulty created by S. 7 of the Act, he could have given due notice to Government under Cl. 18 of the contract referred to above. On the expiry of the term of the notice he would have been free to stand for election to a State or Central Legislature. Section 7 of the Act is clearly intended to avoid a conflict between public duty and privateis true that the permit does contain a condition that the permit-holder may be called upon to undertake transport of mail bags and postal articles but that is only a notice to intending applicants for a stage carriage permit that the grantee of such a permit may have to render that additional service for an additional remuneration if called upon to do so by the authorities of the Postal Department. If any one was not prepared to undertake that additional responsibility, he was free not to make an application for such a permit; but that does not mean that the agreement actually entered into between the Postal Department and the permit holder is not an independent contract governed by its own special terms.It was further argued that the appellant had no hand in the fixing of the remuneration to be paid by the Postal Department for carrying its mails, etc. But it is clear, by a reference to the terms of the rule quoted above that the amount of the remuneration had to be fixed by the department after consultation with the carrier. It was always open to the latter to demur to the terms proposed by the department and if he found that the department was not prepared to accept his norms he was not bound to enter into the agreement.The fact that he had agreed to carry postal articles and mail bags was possibly an additional qualification for him to obtain a renewal of his permit and thus gave him an advantage over his competitors. Hence instead of being an additional burden or a handicap to him, it was an additional advantage to him in the matter of getting a renewal of his permit in preference to others. The agreement was therefore based on mutual promises, by the appellant to carry the mail bags, etc., and by the Postal Department to pay him suitable remuneration for the services thus rendered.11. It was further contended on behalf of the appellant that the Central Government could not be said to have undertaken any service within the meaning of S. 7(d) of the Act when it made arrangements for the carriage of mail bags and postal articles through the appellant. It has not been and cannot be contended that the Government is bound in the discharge of its duties as a sovereign State to make provision for postal mail service. The provisions of the Indian Post Office Act, VI of 1898, are only enabling in the sense that they authorise the State agency to have the exclusive privilege of conveying letters, etc. for the convenience of the public and for the benefit of the Government, without making it obligatory upon it to provide every individual and every place with thosemay be that those facilities are being extended from time to time and are being brought nearer to every home but that is only evidence of the fact that the State as a welfare state is anxious to provide for the conveniences of the public in the matter of communications and correspondence. That is to say the Government in the Postal Department has only undertaken a service to be rendered to the community and that such a service is not an essential function of a sovereigncannot be gainsaid that the Government in the Postal Department is rendering a very useful service and that the appellant has by his contract with the Government undertaken to render that kind of service on a specified route. The present case is a straightforward illustration of the kind of contract contemplated by S. 7(d) of the Act.At all material times the appellant has been directly concerned, for his own benefit in the contract of carrying mail bags and postal articles entered into by him with the Government in the Postal Department.
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THE NATIONAL HIGHWAYS AUTHORITY OF INDIA Vs. PANDARINATHAN GOVINDARAJULU & ANR | the project proponent is permitted to divide projects having a distance beyond 100 km into packages which are less than 100 km, the Notifications dated 14.09.2006 and 22.08.2013 will be rendered redundant. In that event, administrative exigencies and speedy completion will be a ground taken for justifying the segmentation of every project. Therefore, we are in agreement with the High Court that segmentation as a strategy is not permissible for evading environmental clearance as per Notifications dated 14.09.2006 and 22.08.2013. 20. Having held that adoption of segmentation of a project cannot be adopted as a strategy to avoid environmental clearance impact assessment, the question that arises is whether segmentation of a National Highway beyond 100 kms is impermissible under any circumstance. As we lack the expertise of deciding upon this issue, we are of the considered view that an expert committee should examine the permissibility of segregation. After the issuance of a Notification dated 14.09.2006 requiring environmental clearance for new projects and expansion of the existing projects, a High-Level Committee was constituted by the Government of India to review the environmental clearances for Highway expansion projects. As per the Notification dated 14.09.2006, environmental clearance was required for new National Highway and expansion of National Highways greater than 30 kms involving additional right of way greater than 20 meters and passing through more than one State. One of the terms of the reference to the High-Level Committee was to review the requirement of environmental clearance for Highway expansion projects beyond a distance of 200 kms up to the right of way of 60 meters. The High-Level Committee recommended that environmental clearance would be required for expansion of National Highway projects beyond a distance of 100 kms and if the additional right of way or land acquisition is more than 40 meters on existing alignments and 60 meters on realignments or by passes. The said recommendation was accepted by the Government of India and the Notification dated 22.08.2013 was issued, amending the Notification dated 14.09.2006. As the question of permissibility of the segmentation of a National Highway beyond a distance of 100 kms is a matter to be considered by experts, it would be necessary for a committee to be constituted by the Government of India to decide whether segmentation of a National Highway project beyond a distance of 100 kms is permissible. If it is permissible, the circumstances under which segmentation can be done also requires to be examined by the expert committee. 21. Mr. A. Yogeshwaran, learned counsel appearing for the first Respondent submitted that the toll plazas proposed to be erected on the National Highways should be within the permissible limits specified in the Notification dated 22.08.2013. In the note of submissions made by the learned Attorney General, reference has been made to the definition of Right of way placing reliance on Para 2.3 of the Manual of Specifications and Standards for Two-Laning of Highways through Public Private Partnership issued by the Planning Commission of India. Right of way as per the said Manual is the total land width required for the project Highway to accommodate road way (carriage way and shoulders) side drains, service roads, tree plantation, utilities etc. In the written submissions filed on behalf of the Appellant, it has been stated that the right of way not being greater than 40 meters on existing alignments and 60 meters on realignments or by passes, applies only to construction of road and is not applicable for other road amenities or facilities such as toll plazas. However, the Appellant has also stated in the Written submissions that if this Court is not agreeable to the above proposition, it is willing to limit the construction of toll plazas and rest areas within the permissible limits. 22. Section 10 of the Manual of Specifications & Standards for Two Laning of Highways through Public Private Partnership, issued by the Planning Commission of India deals with toll plazas. Figure 10.1 which shows the general lay out of a 2+2 lane toll plazas is as follows: Image 23. A bare perusal of the above figure shows that toll plazas are included in the right of way. The aforementioned Manual issued by the Planning Commission of India has been relied upon by the Appellant to highlight the definition of the expression right of way. However, it was contended on behalf of the Appellant that amenities such as toll plazas and rest houses cannot be part of the right of way. In other words, the Appellant contended that toll plazas and rest houses can be set up beyond the limit specified in the Notification dated 22.08.2013. We do not agree. As Para 2.3 of the aforementioned Manual makes it clear that right of way is the total land width required for the project Highway to accommodate right of way, side drains, service roads, tree plantations, utilities etc., toll plazas and rest houses should be included in the right of way. 24. For the sake of clarity, we hold that the right of way includes the existing National Highway and the additional right of way. To illustrate further, if the existing National Highway is 20 meters then the right of way will be that 20 meters and the land acquired for the additional right of way. 25. The consternation of the High Court that the Appellant had been remiss in not fulfilling the requirement of reafforestation in spite of giving undertakings for the projects taken up earlier is to be noted. There is an obligation on the part of the Appellant to plant ten trees for each felled tree. The High Court commented upon Coastal Regulation Zones (CRZ) clearances to be taken at certain points. The learned Attorney General submitted that the Appellant has already obtained CRZ clearances, wherever it is required. We have not dealt with the issues relating to acquisition of land being in contravention of the National Highways Act, 1956 as no such submission was made either before the High Court or this Court. | 1[ds]6. The project under consideration in this case pertains to the expansion of NH-45A between Villuppuram to Nagapattinam for a distance of 179.555 kms as a part of the Bharatmala Pariyojana project. Admittedly, no environmental impact assessment was undertaken. The Appellant stated in the counteraffidavit filed before the High Court that environmental clearance is not required as the additional right of way or land acquisition was not greater than the limits specified in the Notification even if the expansion of the National Highways is beyond 100 km. Environmental clearance under the Notifications dated 14.09.2006 and 22.08.2013 is required only if the additional right of way or land acquisition is greater than 40 meters on existing alignments and 60 meters on realignments or bypasses. The pivot of the controversy relates to the applicability of Notifications dated 14.09.2006 and 22.08.2013 to the project in question. Therefore, we deem it necessary to adjudicate on the interpretation of the said Notifications though the High Court did not consider the said point.7. A plain reading of Item 7 (f) to the Notification dated 22.08.2013 would make it clear that expansion of a National Highway project needs prior environmental clearance in case (a) expansion of the National Highway project is greater than 100 km. and (b) it involves additional right of way or land acquisition greater than 40 meters on existing alignments and 60 meters on realignments or bypasses. There is no ambiguity in the above provision as it gives no scope for any doubt. The distance of 100 km is important as expansion of National Highways below 100 km needs no prior environmental clearance. If the project involves expansion of a National Highway greater than 100 km, prior environmental clearance would be required only if it involves additional right of way or land acquisition greater than 40 meters on existing alignments and 60 meters on realignments or by passes.8. A statutory rule or Notification is to be treated as a part of the statute (State of Tamil Nadu v. Hind Stone, (1982) 2 SCC 205). Rules made under a statute must be treated for all purposes of construction or obligation exactly as if they were in the Act, are to be of the same effect as if they are contained in the Act, and are to be judicially noticed for all purposes of construction or obligation (The State of Uttar Pradesh and Ors v. Babu Ram Upadhya 1961 SCR (2) 679 ). The principles of interpretation of subordinate legislation are applicable to the interpretation of statutory Notifications (Bansal Wire Industries Ltd. v. State of U.P., (2011) 6 SCC 545 ). If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves do alone in such cases best declare the intent of the law-giver ((1843-60) All ER Rep 55, Sussex Peerage case).9. It has been repeatedly held by this Court that where there is no ambiguity in the words, literal meaning has to be applied, which is the golden rule of interpretation. The words of a statute must prima facie be given their ordinary meaning (Dental Council of India v. Hari Prakash, (2001) 8 SCC 61 and Harbhajan Singh v. Press Council of India, (2002) 3 SCC 722 ).10. In the current case, there is no ambiguity or scope for two interpretations. On a plain reading of Item 7 (f) of the Notification dated 22.08.2013, we adopt the golden rule of interpretation to hold that there is no requirement of prior environmental clearance for expansion of a National Highway project merely because the distance is greater than 100 km. The project proponent is obligated to obtain prior environmental clearance only the additional right of way or land acquisition is greater than 40 meters on existing alignments and 60 meters on realignments or by passes for a National Highway project which is greater than 100 km.11. It is a cardinal principle of interpretation that full effect has to be given to every word of the Notification (South Central Railway Employees Coop. Credit Society Employees Union v. Registrar of Coop. Societies. (1998) 2 SCC 580 And Bansal Wire Industries Ltd. v. State of U.P., (2011) 6 SCC 545 ). Interpreting the Notification dated 22.08.2013 to mean that every expansion of National Highway which is greater than 100 km requires prior environmental clearance would be making the other words in Item 7 (f) redundant and otiose.13. We find force in the submissions made by the learned Attorney General that the word involving is of significance because in the absence of the requirement of an additional right of way or land acquisition greater than 40 meters on existing alignments and 60 meters on realignments or by passes, the expansion of National Highways which are greater than 100 km per se does not require prior environmental clearance.15. A conspectus of the above discussion leads to the unerring conclusion that there is no ambiguity in Item 7 (f) of the Schedule to the Notification that prior environmental clearance is required for expansion of a National Highway project only if:(a) The National Highway is greater than 100 kms.(b) The additional right of way or land acquisition is greater than 40 meters on existing alignments and 60 meters on realignments and by passes.16. In view of the bifurcation of the National Highway 45-A into four packages and each package being less than 100 km, the Appellant contended before the High Court that the Notifications dated 14.09.2006 and 22.08.2013 are not applicable. Seeking support from a judgment of the United States District Court for the Southern District of Indiana in Old Town Neighborhood Association v. Kauffman, ((S.D. Ind. 2002), Case No. 1:02-cv-1505-DFH) and a judgment of the European Court of Justice in Commission of the European Communities v. Kingdom of Spain (Case C-227/01), the High Court held that segmentation of a project as a strategy to avoid environmental clearance is impermissible. The High Court also relied upon a judgment of this Court in Deepak Kumar v. State of Haryana ((2012) 4 SCC 629 ) and a judgment of the National Green Tribunal in Citizens for Green Doon v. Union of India (2018 SCC OnLine NGT 1777 ) to reject the contention of the Appellants that the division of the project into four packages is for administrative expediencies. According to the High Court, if segmentation of National Highway projects is permitted, the Notifications dated 14.09.2006 and 22.08.2013 would become a dead letter as every National Highway beyond 100 km can be divided into packages to avoid environmental clearance.18. While economic development should not be allowed at the cost of ecology or by causing widespread environmental destruction, the necessity to preserve ecology and environment should not hamper economic and other development. Both development and environment must go hand in hand. In other words, there should not be development at the cost of environment and vice versa, but there should be development while taking due care and ensuring the protection of environment (Indian Council for Enviro-Legal Action v. Union of India [(1996) 5 SCC 281] ). The traditional concept that development and ecology are opposed to each other is no longer acceptable (Vellore Citizens Welfare Forum v. Union of India [(1996) 5 SCC 647]) .19. Apart from providing smooth flow of public goods and services which contribute to the economic growth, highways also benefit regional development in the country. In the normal course, impediments should not be created in the matter of National Highways which provide the much-needed transportation infrastructure. At the same time, protection of environment is important. The Notification dated 22.08.2013 exempts a National Highway, the distance of which is less than 100 km from obtaining environmental clearance. If the project proponent is permitted to divide projects having a distance beyond 100 km into packages which are less than 100 km, the Notifications dated 14.09.2006 and 22.08.2013 will be rendered redundant. In that event, administrative exigencies and speedy completion will be a ground taken for justifying the segmentation of every project. Therefore, we are in agreement with the High Court that segmentation as a strategy is not permissible for evading environmental clearance as per Notifications dated 14.09.2006 and 22.08.2013.20. Having held that adoption of segmentation of a project cannot be adopted as a strategy to avoid environmental clearance impact assessment, the question that arises is whether segmentation of a National Highway beyond 100 kms is impermissible under any circumstance. As we lack the expertise of deciding upon this issue, we are of the considered view that an expert committee should examine the permissibility of segregation. After the issuance of a Notification dated 14.09.2006 requiring environmental clearance for new projects and expansion of the existing projects, a High-Level Committee was constituted by the Government of India to review the environmental clearances for Highway expansion projects. As per the Notification dated 14.09.2006, environmental clearance was required for new National Highway and expansion of National Highways greater than 30 kms involving additional right of way greater than 20 meters and passing through more than one State. One of the termsof the reference to the High-Level Committee was to review the requirement of environmental clearance for Highway expansion projects beyond a distance of 200 kms up to the right of way of 60 meters. The High-Level Committee recommended that environmental clearance would be required for expansion of National Highway projects beyond a distance of 100 kms and if the additional right of way or land acquisition is more than 40 meters on existing alignments and 60 meters on realignments or by passes. The said recommendation was accepted by the Government of India and the Notification dated 22.08.2013 was issued, amending the Notification dated 14.09.2006. As the question of permissibility of the segmentation of a National Highway beyond a distance of 100 kms is a matter to be considered by experts, it would be necessary for a committee to be constituted by the Government of India to decide whether segmentation of a National Highway project beyond a distance of 100 kms is permissible. If it is permissible, the circumstances under whichsegmentation can be done also requires to be examined by the expert committee.23. A bare perusal of the above figure shows that toll plazas are included in the right of way. The aforementioned Manual issued by the Planning Commission of India has been relied upon by the Appellant to highlight the definition of the expression right of way. However, it was contended on behalf of the Appellant that amenities such as toll plazas and rest houses cannot be part of the right of way. In other words, the Appellant contended that toll plazas and rest houses can be set up beyond the limit specified in the Notification dated 22.08.2013. We do not agree. As Para 2.3 of the aforementioned Manual makes it clear that right of way is the total land width required for the project Highway to accommodate right of way, side drains, service roads, tree plantations, utilities etc., toll plazas and rest houses should be included in the right of way.24. For the sake of clarity, we hold that the right of way includes the existing National Highway and the additional right of way. To illustrate further, if the existing National Highway is 20 meters then the right of way will be that 20 meters and the land acquired for the additional right of way.25. The consternation of the High Court that the Appellant had been remiss in not fulfilling the requirement of reafforestation in spite of giving undertakings for the projects taken up earlier is to be noted. There is an obligation on the part of the Appellant to plant ten trees for each felled tree. The High Court commented upon Coastal Regulation Zones (CRZ) clearances to be taken at certain points. The learned Attorney General submitted that the Appellant has already obtained CRZ clearances, wherever it is required. We have not dealt with the issues relating to acquisition of land being in contravention of the National Highways Act, 1956 as no such submission was made either before the High Court or this Court. | 1 | 4,072 | 2,222 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
the project proponent is permitted to divide projects having a distance beyond 100 km into packages which are less than 100 km, the Notifications dated 14.09.2006 and 22.08.2013 will be rendered redundant. In that event, administrative exigencies and speedy completion will be a ground taken for justifying the segmentation of every project. Therefore, we are in agreement with the High Court that segmentation as a strategy is not permissible for evading environmental clearance as per Notifications dated 14.09.2006 and 22.08.2013. 20. Having held that adoption of segmentation of a project cannot be adopted as a strategy to avoid environmental clearance impact assessment, the question that arises is whether segmentation of a National Highway beyond 100 kms is impermissible under any circumstance. As we lack the expertise of deciding upon this issue, we are of the considered view that an expert committee should examine the permissibility of segregation. After the issuance of a Notification dated 14.09.2006 requiring environmental clearance for new projects and expansion of the existing projects, a High-Level Committee was constituted by the Government of India to review the environmental clearances for Highway expansion projects. As per the Notification dated 14.09.2006, environmental clearance was required for new National Highway and expansion of National Highways greater than 30 kms involving additional right of way greater than 20 meters and passing through more than one State. One of the terms of the reference to the High-Level Committee was to review the requirement of environmental clearance for Highway expansion projects beyond a distance of 200 kms up to the right of way of 60 meters. The High-Level Committee recommended that environmental clearance would be required for expansion of National Highway projects beyond a distance of 100 kms and if the additional right of way or land acquisition is more than 40 meters on existing alignments and 60 meters on realignments or by passes. The said recommendation was accepted by the Government of India and the Notification dated 22.08.2013 was issued, amending the Notification dated 14.09.2006. As the question of permissibility of the segmentation of a National Highway beyond a distance of 100 kms is a matter to be considered by experts, it would be necessary for a committee to be constituted by the Government of India to decide whether segmentation of a National Highway project beyond a distance of 100 kms is permissible. If it is permissible, the circumstances under which segmentation can be done also requires to be examined by the expert committee. 21. Mr. A. Yogeshwaran, learned counsel appearing for the first Respondent submitted that the toll plazas proposed to be erected on the National Highways should be within the permissible limits specified in the Notification dated 22.08.2013. In the note of submissions made by the learned Attorney General, reference has been made to the definition of Right of way placing reliance on Para 2.3 of the Manual of Specifications and Standards for Two-Laning of Highways through Public Private Partnership issued by the Planning Commission of India. Right of way as per the said Manual is the total land width required for the project Highway to accommodate road way (carriage way and shoulders) side drains, service roads, tree plantation, utilities etc. In the written submissions filed on behalf of the Appellant, it has been stated that the right of way not being greater than 40 meters on existing alignments and 60 meters on realignments or by passes, applies only to construction of road and is not applicable for other road amenities or facilities such as toll plazas. However, the Appellant has also stated in the Written submissions that if this Court is not agreeable to the above proposition, it is willing to limit the construction of toll plazas and rest areas within the permissible limits. 22. Section 10 of the Manual of Specifications & Standards for Two Laning of Highways through Public Private Partnership, issued by the Planning Commission of India deals with toll plazas. Figure 10.1 which shows the general lay out of a 2+2 lane toll plazas is as follows: Image 23. A bare perusal of the above figure shows that toll plazas are included in the right of way. The aforementioned Manual issued by the Planning Commission of India has been relied upon by the Appellant to highlight the definition of the expression right of way. However, it was contended on behalf of the Appellant that amenities such as toll plazas and rest houses cannot be part of the right of way. In other words, the Appellant contended that toll plazas and rest houses can be set up beyond the limit specified in the Notification dated 22.08.2013. We do not agree. As Para 2.3 of the aforementioned Manual makes it clear that right of way is the total land width required for the project Highway to accommodate right of way, side drains, service roads, tree plantations, utilities etc., toll plazas and rest houses should be included in the right of way. 24. For the sake of clarity, we hold that the right of way includes the existing National Highway and the additional right of way. To illustrate further, if the existing National Highway is 20 meters then the right of way will be that 20 meters and the land acquired for the additional right of way. 25. The consternation of the High Court that the Appellant had been remiss in not fulfilling the requirement of reafforestation in spite of giving undertakings for the projects taken up earlier is to be noted. There is an obligation on the part of the Appellant to plant ten trees for each felled tree. The High Court commented upon Coastal Regulation Zones (CRZ) clearances to be taken at certain points. The learned Attorney General submitted that the Appellant has already obtained CRZ clearances, wherever it is required. We have not dealt with the issues relating to acquisition of land being in contravention of the National Highways Act, 1956 as no such submission was made either before the High Court or this Court.
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in Citizens for Green Doon v. Union of India (2018 SCC OnLine NGT 1777 ) to reject the contention of the Appellants that the division of the project into four packages is for administrative expediencies. According to the High Court, if segmentation of National Highway projects is permitted, the Notifications dated 14.09.2006 and 22.08.2013 would become a dead letter as every National Highway beyond 100 km can be divided into packages to avoid environmental clearance.18. While economic development should not be allowed at the cost of ecology or by causing widespread environmental destruction, the necessity to preserve ecology and environment should not hamper economic and other development. Both development and environment must go hand in hand. In other words, there should not be development at the cost of environment and vice versa, but there should be development while taking due care and ensuring the protection of environment (Indian Council for Enviro-Legal Action v. Union of India [(1996) 5 SCC 281] ). The traditional concept that development and ecology are opposed to each other is no longer acceptable (Vellore Citizens Welfare Forum v. Union of India [(1996) 5 SCC 647]) .19. Apart from providing smooth flow of public goods and services which contribute to the economic growth, highways also benefit regional development in the country. In the normal course, impediments should not be created in the matter of National Highways which provide the much-needed transportation infrastructure. At the same time, protection of environment is important. The Notification dated 22.08.2013 exempts a National Highway, the distance of which is less than 100 km from obtaining environmental clearance. If the project proponent is permitted to divide projects having a distance beyond 100 km into packages which are less than 100 km, the Notifications dated 14.09.2006 and 22.08.2013 will be rendered redundant. In that event, administrative exigencies and speedy completion will be a ground taken for justifying the segmentation of every project. Therefore, we are in agreement with the High Court that segmentation as a strategy is not permissible for evading environmental clearance as per Notifications dated 14.09.2006 and 22.08.2013.20. Having held that adoption of segmentation of a project cannot be adopted as a strategy to avoid environmental clearance impact assessment, the question that arises is whether segmentation of a National Highway beyond 100 kms is impermissible under any circumstance. As we lack the expertise of deciding upon this issue, we are of the considered view that an expert committee should examine the permissibility of segregation. After the issuance of a Notification dated 14.09.2006 requiring environmental clearance for new projects and expansion of the existing projects, a High-Level Committee was constituted by the Government of India to review the environmental clearances for Highway expansion projects. As per the Notification dated 14.09.2006, environmental clearance was required for new National Highway and expansion of National Highways greater than 30 kms involving additional right of way greater than 20 meters and passing through more than one State. One of the termsof the reference to the High-Level Committee was to review the requirement of environmental clearance for Highway expansion projects beyond a distance of 200 kms up to the right of way of 60 meters. The High-Level Committee recommended that environmental clearance would be required for expansion of National Highway projects beyond a distance of 100 kms and if the additional right of way or land acquisition is more than 40 meters on existing alignments and 60 meters on realignments or by passes. The said recommendation was accepted by the Government of India and the Notification dated 22.08.2013 was issued, amending the Notification dated 14.09.2006. As the question of permissibility of the segmentation of a National Highway beyond a distance of 100 kms is a matter to be considered by experts, it would be necessary for a committee to be constituted by the Government of India to decide whether segmentation of a National Highway project beyond a distance of 100 kms is permissible. If it is permissible, the circumstances under whichsegmentation can be done also requires to be examined by the expert committee.23. A bare perusal of the above figure shows that toll plazas are included in the right of way. The aforementioned Manual issued by the Planning Commission of India has been relied upon by the Appellant to highlight the definition of the expression right of way. However, it was contended on behalf of the Appellant that amenities such as toll plazas and rest houses cannot be part of the right of way. In other words, the Appellant contended that toll plazas and rest houses can be set up beyond the limit specified in the Notification dated 22.08.2013. We do not agree. As Para 2.3 of the aforementioned Manual makes it clear that right of way is the total land width required for the project Highway to accommodate right of way, side drains, service roads, tree plantations, utilities etc., toll plazas and rest houses should be included in the right of way.24. For the sake of clarity, we hold that the right of way includes the existing National Highway and the additional right of way. To illustrate further, if the existing National Highway is 20 meters then the right of way will be that 20 meters and the land acquired for the additional right of way.25. The consternation of the High Court that the Appellant had been remiss in not fulfilling the requirement of reafforestation in spite of giving undertakings for the projects taken up earlier is to be noted. There is an obligation on the part of the Appellant to plant ten trees for each felled tree. The High Court commented upon Coastal Regulation Zones (CRZ) clearances to be taken at certain points. The learned Attorney General submitted that the Appellant has already obtained CRZ clearances, wherever it is required. We have not dealt with the issues relating to acquisition of land being in contravention of the National Highways Act, 1956 as no such submission was made either before the High Court or this Court.
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S.V. Muzumdar Vs. Gujarat State Fertilizer Co. Ltd. | The High Court did not accept the pleas and held that the controversy was to be adjudicated at the trial. It considered the petition to be unacceptable attempt to stall the criminal proceedings at the threshold. 4. In support of the appeals, learned counsel for the various appellants submitted that identical issues have been referred for consideration by larger Bench and, therefore, these matters should also be tagged down with those cases. Reference has been made to various orders in this connection. 5. It was on merits pointed out that even the complaint read as a whole does not disclose commission of any offence, more particularly, so far as the appellants are concerned. It was pointed out that some of the appellants are lawyers and/or other professionals who had no scope for direct participation in the conduct of business and are not involved in the conduct of business and, therefore, no offence can be attributed to them in terms of Section 141 of the Act. 6. In response, learned counsel for the respondents submitted that there is no challenge to the constitutional validity of the provisions and that can never be subject matter of challenge in the proceedings under the Code of Criminal Procedure, 1973 (in short the Code). The allegations against the accused persons were covered by Section 141 of Act. There were specific allegations against the appellants and, therefore, the courts below were justified in refusing to accept the prayer made by the appellants to drop the proceedings. 7. Section 141 of the Act reads as follows: "141. Offences by Companies : (1) If the person committing an offence under Section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without in knowledge, or that he had exercised all due diligence to prevent the commission of such offence.Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter.(2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of it, any director, manager, secretary, or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.Explanation - For the purposes of this section -(a) company means any body corporate and includes a firm or other association of individuals; and(b) director in relation to a firm, means a partner in the firm." 8. We find that the prayers before the courts below essentially were to drop the proceedings on the ground that the allegations would not constitute a foundation for action in terms of Section 141 of the Act. These questions have to be adjudicated at the trial. Whether a person is in charge of or is responsible to the company for conduct of the business is to be adjudicated on the basis of materials to be placed by the parties. Sub-section (2) of Section 141 is a deeming provision which as noted supra operates in certain specified circumstances. Whether the requirements for the application of the deeming provision exist or not is again a matter for adjudication during trial. Similarly, whether the allegations contained are sufficient to attract culpability is a matter for adjudication at the trial.9. Under Scheme of the Act, if the person committing an offence under Section 138 of the Act is a company; by application of Section 141 it is deemed that every person who is in charge of and responsible to the company for conduct of the business of the company as well as the company are guilty of the offence. A person who proves that the offence was committed without his knowledge or that he had exercised all due diligence is exempted from becoming liable by operation of the proviso to sub-section (1). The burden in this regard has to be discharged by the accused.10. The three categories of persons covered by Section 141 are as follows: (1) The company who committed the offence.(2) Everyone who was in charge of and was responsible for the business of the company.(3) Any other person who is a director or a manager or a secretary or officer of the company with whose connivance or due to whose neglect the company has committed the offence. 11. Whether or not the evidence to be led would establish the accusations is a matter for trial. It needs no reiteration that proviso to sub-section (1) of Section 141 enables the accused to prove his innocence by discharging the burden which lies on him. 12. Therefore, the High Court was justified in rejecting the petition filed by the appellants. The larger Bench is considering issues referred to. The decision to be rendered by the larger Bench obviously would govern the trial. As rightly submitted by the respondents in these appeals, there is no challenge to the validity of any provision and grievance essentially related to the prayer for dropping the proceedings. Therefore, we find no substance in the plea for tagging these matters with those pending before the larger Bench.13. Taking into account the fact that the cases have been pending for nearly a decade, we | 0[ds]8. We find that the prayers before the courts below essentially were to drop the proceedings on the ground that the allegations would not constitute a foundation for action in terms of Section 141 of the Act. These questions have to be adjudicated at the trial. Whether a person is in charge of or is responsible to the company for conduct of the business is to be adjudicated on the basis of materials to be placed by the parties. Sub-section (2) of Section 141 is a deeming provision which as noted supra operates in certain specified circumstances. Whether the requirements for the application of the deeming provision exist or not is again a matter for adjudication during trial. Similarly, whether the allegations contained are sufficient to attract culpability is a matter for adjudication at the trial.Therefore, the High Court was justified in rejecting the petition filed by the appellants. The larger Bench is considering issues referred to. The decision to be rendered by the larger Bench obviously would govern the trial. As rightly submitted by the respondents in these appeals, there is no challenge to the validity of any provision and grievance essentially related to the prayer for dropping the proceedings. Therefore, we find no substance in the plea for tagging these matters with those pending before the larger Bench.13. Taking into account the fact that the cases have been pending for nearly amake it clear that we have not expressed any opinion on the merits of the case.9. Under Scheme of the Act, if the person committing an offence under Section 138 of the Act is a company; by application of Section 141 it is deemed that every person who is in charge of and responsible to the company for conduct of the business of the company as well as the company are guilty of the offence. A person who proves that the offence was committed without his knowledge or that he had exercised all due diligence is exempted from becoming liable by operation of the proviso to sub-section (1). The burden in this regard has to be discharged by the accused.10. The three categories of persons covered by Section 141 are asThe company who committed the offence.(2) Everyone who was in charge of and was responsible for the business of the company.(3) Any other person who is a director or a manager or a secretary or officer of the company with whose connivance or due to whose neglect the company has committed the offence.Whether or not the evidence to be led would establish the accusations is a matter for trial. It needs no reiteration that proviso to sub-section (1) of Section 141 enables the accused to prove his innocence by discharging the burden which lies on him. | 0 | 1,549 | 500 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
The High Court did not accept the pleas and held that the controversy was to be adjudicated at the trial. It considered the petition to be unacceptable attempt to stall the criminal proceedings at the threshold. 4. In support of the appeals, learned counsel for the various appellants submitted that identical issues have been referred for consideration by larger Bench and, therefore, these matters should also be tagged down with those cases. Reference has been made to various orders in this connection. 5. It was on merits pointed out that even the complaint read as a whole does not disclose commission of any offence, more particularly, so far as the appellants are concerned. It was pointed out that some of the appellants are lawyers and/or other professionals who had no scope for direct participation in the conduct of business and are not involved in the conduct of business and, therefore, no offence can be attributed to them in terms of Section 141 of the Act. 6. In response, learned counsel for the respondents submitted that there is no challenge to the constitutional validity of the provisions and that can never be subject matter of challenge in the proceedings under the Code of Criminal Procedure, 1973 (in short the Code). The allegations against the accused persons were covered by Section 141 of Act. There were specific allegations against the appellants and, therefore, the courts below were justified in refusing to accept the prayer made by the appellants to drop the proceedings. 7. Section 141 of the Act reads as follows: "141. Offences by Companies : (1) If the person committing an offence under Section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without in knowledge, or that he had exercised all due diligence to prevent the commission of such offence.Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter.(2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of it, any director, manager, secretary, or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.Explanation - For the purposes of this section -(a) company means any body corporate and includes a firm or other association of individuals; and(b) director in relation to a firm, means a partner in the firm." 8. We find that the prayers before the courts below essentially were to drop the proceedings on the ground that the allegations would not constitute a foundation for action in terms of Section 141 of the Act. These questions have to be adjudicated at the trial. Whether a person is in charge of or is responsible to the company for conduct of the business is to be adjudicated on the basis of materials to be placed by the parties. Sub-section (2) of Section 141 is a deeming provision which as noted supra operates in certain specified circumstances. Whether the requirements for the application of the deeming provision exist or not is again a matter for adjudication during trial. Similarly, whether the allegations contained are sufficient to attract culpability is a matter for adjudication at the trial.9. Under Scheme of the Act, if the person committing an offence under Section 138 of the Act is a company; by application of Section 141 it is deemed that every person who is in charge of and responsible to the company for conduct of the business of the company as well as the company are guilty of the offence. A person who proves that the offence was committed without his knowledge or that he had exercised all due diligence is exempted from becoming liable by operation of the proviso to sub-section (1). The burden in this regard has to be discharged by the accused.10. The three categories of persons covered by Section 141 are as follows: (1) The company who committed the offence.(2) Everyone who was in charge of and was responsible for the business of the company.(3) Any other person who is a director or a manager or a secretary or officer of the company with whose connivance or due to whose neglect the company has committed the offence. 11. Whether or not the evidence to be led would establish the accusations is a matter for trial. It needs no reiteration that proviso to sub-section (1) of Section 141 enables the accused to prove his innocence by discharging the burden which lies on him. 12. Therefore, the High Court was justified in rejecting the petition filed by the appellants. The larger Bench is considering issues referred to. The decision to be rendered by the larger Bench obviously would govern the trial. As rightly submitted by the respondents in these appeals, there is no challenge to the validity of any provision and grievance essentially related to the prayer for dropping the proceedings. Therefore, we find no substance in the plea for tagging these matters with those pending before the larger Bench.13. Taking into account the fact that the cases have been pending for nearly a decade, we
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### Explanation:
8. We find that the prayers before the courts below essentially were to drop the proceedings on the ground that the allegations would not constitute a foundation for action in terms of Section 141 of the Act. These questions have to be adjudicated at the trial. Whether a person is in charge of or is responsible to the company for conduct of the business is to be adjudicated on the basis of materials to be placed by the parties. Sub-section (2) of Section 141 is a deeming provision which as noted supra operates in certain specified circumstances. Whether the requirements for the application of the deeming provision exist or not is again a matter for adjudication during trial. Similarly, whether the allegations contained are sufficient to attract culpability is a matter for adjudication at the trial.Therefore, the High Court was justified in rejecting the petition filed by the appellants. The larger Bench is considering issues referred to. The decision to be rendered by the larger Bench obviously would govern the trial. As rightly submitted by the respondents in these appeals, there is no challenge to the validity of any provision and grievance essentially related to the prayer for dropping the proceedings. Therefore, we find no substance in the plea for tagging these matters with those pending before the larger Bench.13. Taking into account the fact that the cases have been pending for nearly amake it clear that we have not expressed any opinion on the merits of the case.9. Under Scheme of the Act, if the person committing an offence under Section 138 of the Act is a company; by application of Section 141 it is deemed that every person who is in charge of and responsible to the company for conduct of the business of the company as well as the company are guilty of the offence. A person who proves that the offence was committed without his knowledge or that he had exercised all due diligence is exempted from becoming liable by operation of the proviso to sub-section (1). The burden in this regard has to be discharged by the accused.10. The three categories of persons covered by Section 141 are asThe company who committed the offence.(2) Everyone who was in charge of and was responsible for the business of the company.(3) Any other person who is a director or a manager or a secretary or officer of the company with whose connivance or due to whose neglect the company has committed the offence.Whether or not the evidence to be led would establish the accusations is a matter for trial. It needs no reiteration that proviso to sub-section (1) of Section 141 enables the accused to prove his innocence by discharging the burden which lies on him.
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Lajpat Rai and Others Vs. State of Punjab and Others | the proviso to sub-section (1) of section 5.(d) Once a reservation has been intimated within 6 months from the date of commencement of the Act, it cannot be varied either by act of parties or by operation of law, except with the written consent of the tenant affected by such variation.(e) If a land-owner has failed to reserve land in accordance with the provisions of section 5, he has another chance to select his permissible area within six months from the commencement of the Punjab Security of Land Tenures (Amendment) Act (Punjab Act No. 46 of 1957) in the prescribed manner.(f) The prescribed authority is given the power to select the permissible area of a landowner under sub-section (2 ) of section 5-B but the mandatory condition attached to the exercise of that power is that it shall be resorted to only if the landowner has failed to select his permissible area in accordance with the provisions of sub- section (1) of that section. In other words, if the concerned land-owner has already selected his permissible area in accordance with the provisions of sub-section (1) of section 5-B, sub -section (2) of that section does not come into play at all and there is no occasion for the exercise by the prescribed authority of the power of selection.These conclusions further lead to the inference that if the prescribed authority (in this case the Special Collector) exercises the power of selection in a situation to which sub-section 5-B is not attracted, his order would be without jurisdiction and a nullity and that is precisely what has happened in this case. As held by us earlier, respondent No. 3 had made a selection of his permissible area in accordance with the provisions of sub-section (1) of section 5-B a selection which the prescribed authority had no power to vary either under sub-section (2) of section 5-B or under any other provisions of the Act. The order of the Special Collector dated March 30, 1962 must, therefore, be held to have been passed without jurisdiction and, therefore, to be a nullity.16. In support of the proposition that the order of the Special Collector did not suffer from lack of jurisdiction, learned counsel for the appellants has relied upon the following observations in Gurcharan Singh and Others v. Prithi Singh and Others, wherein this Court defined the scope of powers of the Collector while acting under sub- section (2) of section 5-B of the Act:"While it is true that a landowner who fails to reserve or select his permissible area within the prescribed period, cannot exercise that right subsequently, and thereafter it is for the Collector to determine the defaulters permissible and surplus areas, in exercising this power under section 5-B, the Collector has to act judicially. He is bound to give notice to the landowner, and the transferees from him, if known. Thereafter he has to hear the parties who appear, and to take into consideration their representations and then pass such order as may be just. In so exercising his discretion, the Collector may, subject to the adjustment of equities on both sides, include the transferred area in the permissible area or the surplus area of the landowner. Thus, in the process the Collector is not to ignore altogether the wishes of the landowner. He may accept them to the extent they are consistent with the equities of the case".It is urged on the authority of these observations that the Collector has in all cases the power to alter the particulars of an area reserved or selected by a landowner so as to bring it in conformity with any equities that may arise in the attendant circumstances. This proposition is wholly unacceptable to us for the simple reason that in Gurcharan Singhs case (supra), the landowner had made neither a reservation nor a selection of his permissible area within the prescribed period, so that sub-sec tion (2) of section 5-B was undoubtedly attracted to his case. The observations above extracted were obviously confined to a case of that type, and have nothing to do with a situation where the landowner concerned has selected his permissible are a in accordance with the provisions of sub-section (1) of section 5-B so that there is no occasion for the prescribed authority to exercise his powers under sub-section (2) of that section. Gurcharn Singhs case, therefore, is of no assistance at all to the case of the appellants.17. Nor do we see how any equities arise in favour of the appellants, such as would entitle them to have the land in question included in the permissible area of respondent No. 3. It is not their case that any representation to the effect that land would be so included was made to them by either respondent No. 3 or respondent No. 4. Furthermore they must be credited with full knowledge of the extent of the land owned by respondent No. 3 and of the con sequences flowing therefrom in view of the provisions of the Act. Thus they acquired the land with their eyes open and subject to all the liabilities and defects from which it suffered in the hands of their transferor (and also their transferors transferor). In the absence of word of month of respondent No. 3 or his conduct to the contrary; they cannot now be heard to say that if respondent No. 3 exercises a right of selection of his permissible area which the Act confers on him, that right must be modified to suit their convenience.In this connection we may also mention that the inclusion of the land in question in the surplus area of respondent No. 3 does not affect the right of ownership of the appellants. Of course the result of such inclusion would certainly be that the concerned authorities would be enabled to settle tenants on the land as permitted by the Act-and that is a risk which the appellants must be deemed to have bought with the land.18. | 0[ds]We now proceed to consider contention (b) in the light of the provisions above extracted, a bare reading of which leads to the following conclusions in relation to thatSurplus area is arrived at by excluding the reserved area from the total area of a land-owner in case a reservation has been made by him lawfully. (Clauses (4) and (5-a) of sectionWhere no area has been lawfully reserved by the land owner, surplus area is worked out under section 5-B or 5-C](c) Under section 5, the landowner is entitled to reserve out of the entire land held by him in the State of Punjab as landowner, any parcel or parcels not exceeding the permissible area by intimating his selection in the prescribed form and manner to the patwari of the estate, etc. In doing so he is legally bound to include in his reserve d area such land as conform to the description of any of the 6 categories covered by clauses (a) to (f) of the proviso to sub-section (1) of section 5.(d) Once a reservation has been intimated within 6 months from the date of commencement of the Act, it cannot be varied either by act of parties or by operation of law, except with the written consent of the tenant affected by such variation.(e) If a land-owner has failed to reserve land in accordance with the provisions of section 5, he has another chance to select his permissible area within six months from the commencement of the Punjab Security of Land Tenures (Amendment) Act (Punjab Act No. 46 of 1957) in the prescribed manner.(f) The prescribed authority is given the power to select the permissible area of a landowner under sub-section (2 ) of section 5-B but the mandatory condition attached to the exercise of that power is that it shall be resorted to only if the landowner has failed to select his permissible area in accordance with the provisions of sub- section (1) of that section. In other words, if the concerned land-owner has already selected his permissible area in accordance with the provisions of sub-section (1) of section 5-B, sub -section (2) of that section does not come into play at all and there is no occasion for the exercise by the prescribed authority of the power of selection.These conclusions further lead to the inference that if the prescribed authority (in this case the Special Collector) exercises the power of selection in a situation to which sub-section 5-B is not attracted, his order would be without jurisdiction and a nullity and that is precisely what has happened in this case. As held by us earlier, respondent No. 3 had made a selection of his permissible area in accordance with the provisions of sub-section (1) of section 5-B a selection which the prescribed authority had no power to vary either under sub-section (2) of section 5-B or under any other provisions of the Act. The order of the Special Collector dated March 30, 1962 must, therefore, be held to have been passed without jurisdiction and, therefore, to be a nullity.Nor do we see how any equities arise in favour of the appellants, such as would entitle them to have the land in question included in the permissible area of respondent No. 3. It is not their case that any representation to the effect that land would be so included was made to them by either respondent No. 3 or respondent No. 4. Furthermore they must be credited with full knowledge of the extent of the land owned by respondent No. 3 and of the con sequences flowing therefrom in view of the provisions of the Act. Thus they acquired the land with their eyes open and subject to all the liabilities and defects from which it suffered in the hands of their transferor (and also their transferors transferor). In the absence of word of month of respondent No. 3 or his conduct to the contrary; they cannot now be heard to say that if respondent No. 3 exercises a right of selection of his permissible area which the Act confers on him, that right must be modified to suit their convenience.In this connection we may also mention that the inclusion of the land in question in the surplus area of respondent No. 3 does not affect the right of ownership of the appellants. Of course the result of such inclusion would certainly be that the concerned authorities would be enabled to settle tenants on the land as permitted by the Act-and that is a risk which the appellants must be deemed to have bought with the land. | 0 | 4,596 | 864 | ### Instruction:
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the proviso to sub-section (1) of section 5.(d) Once a reservation has been intimated within 6 months from the date of commencement of the Act, it cannot be varied either by act of parties or by operation of law, except with the written consent of the tenant affected by such variation.(e) If a land-owner has failed to reserve land in accordance with the provisions of section 5, he has another chance to select his permissible area within six months from the commencement of the Punjab Security of Land Tenures (Amendment) Act (Punjab Act No. 46 of 1957) in the prescribed manner.(f) The prescribed authority is given the power to select the permissible area of a landowner under sub-section (2 ) of section 5-B but the mandatory condition attached to the exercise of that power is that it shall be resorted to only if the landowner has failed to select his permissible area in accordance with the provisions of sub- section (1) of that section. In other words, if the concerned land-owner has already selected his permissible area in accordance with the provisions of sub-section (1) of section 5-B, sub -section (2) of that section does not come into play at all and there is no occasion for the exercise by the prescribed authority of the power of selection.These conclusions further lead to the inference that if the prescribed authority (in this case the Special Collector) exercises the power of selection in a situation to which sub-section 5-B is not attracted, his order would be without jurisdiction and a nullity and that is precisely what has happened in this case. As held by us earlier, respondent No. 3 had made a selection of his permissible area in accordance with the provisions of sub-section (1) of section 5-B a selection which the prescribed authority had no power to vary either under sub-section (2) of section 5-B or under any other provisions of the Act. The order of the Special Collector dated March 30, 1962 must, therefore, be held to have been passed without jurisdiction and, therefore, to be a nullity.16. In support of the proposition that the order of the Special Collector did not suffer from lack of jurisdiction, learned counsel for the appellants has relied upon the following observations in Gurcharan Singh and Others v. Prithi Singh and Others, wherein this Court defined the scope of powers of the Collector while acting under sub- section (2) of section 5-B of the Act:"While it is true that a landowner who fails to reserve or select his permissible area within the prescribed period, cannot exercise that right subsequently, and thereafter it is for the Collector to determine the defaulters permissible and surplus areas, in exercising this power under section 5-B, the Collector has to act judicially. He is bound to give notice to the landowner, and the transferees from him, if known. Thereafter he has to hear the parties who appear, and to take into consideration their representations and then pass such order as may be just. In so exercising his discretion, the Collector may, subject to the adjustment of equities on both sides, include the transferred area in the permissible area or the surplus area of the landowner. Thus, in the process the Collector is not to ignore altogether the wishes of the landowner. He may accept them to the extent they are consistent with the equities of the case".It is urged on the authority of these observations that the Collector has in all cases the power to alter the particulars of an area reserved or selected by a landowner so as to bring it in conformity with any equities that may arise in the attendant circumstances. This proposition is wholly unacceptable to us for the simple reason that in Gurcharan Singhs case (supra), the landowner had made neither a reservation nor a selection of his permissible area within the prescribed period, so that sub-sec tion (2) of section 5-B was undoubtedly attracted to his case. The observations above extracted were obviously confined to a case of that type, and have nothing to do with a situation where the landowner concerned has selected his permissible are a in accordance with the provisions of sub-section (1) of section 5-B so that there is no occasion for the prescribed authority to exercise his powers under sub-section (2) of that section. Gurcharn Singhs case, therefore, is of no assistance at all to the case of the appellants.17. Nor do we see how any equities arise in favour of the appellants, such as would entitle them to have the land in question included in the permissible area of respondent No. 3. It is not their case that any representation to the effect that land would be so included was made to them by either respondent No. 3 or respondent No. 4. Furthermore they must be credited with full knowledge of the extent of the land owned by respondent No. 3 and of the con sequences flowing therefrom in view of the provisions of the Act. Thus they acquired the land with their eyes open and subject to all the liabilities and defects from which it suffered in the hands of their transferor (and also their transferors transferor). In the absence of word of month of respondent No. 3 or his conduct to the contrary; they cannot now be heard to say that if respondent No. 3 exercises a right of selection of his permissible area which the Act confers on him, that right must be modified to suit their convenience.In this connection we may also mention that the inclusion of the land in question in the surplus area of respondent No. 3 does not affect the right of ownership of the appellants. Of course the result of such inclusion would certainly be that the concerned authorities would be enabled to settle tenants on the land as permitted by the Act-and that is a risk which the appellants must be deemed to have bought with the land.18.
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We now proceed to consider contention (b) in the light of the provisions above extracted, a bare reading of which leads to the following conclusions in relation to thatSurplus area is arrived at by excluding the reserved area from the total area of a land-owner in case a reservation has been made by him lawfully. (Clauses (4) and (5-a) of sectionWhere no area has been lawfully reserved by the land owner, surplus area is worked out under section 5-B or 5-C](c) Under section 5, the landowner is entitled to reserve out of the entire land held by him in the State of Punjab as landowner, any parcel or parcels not exceeding the permissible area by intimating his selection in the prescribed form and manner to the patwari of the estate, etc. In doing so he is legally bound to include in his reserve d area such land as conform to the description of any of the 6 categories covered by clauses (a) to (f) of the proviso to sub-section (1) of section 5.(d) Once a reservation has been intimated within 6 months from the date of commencement of the Act, it cannot be varied either by act of parties or by operation of law, except with the written consent of the tenant affected by such variation.(e) If a land-owner has failed to reserve land in accordance with the provisions of section 5, he has another chance to select his permissible area within six months from the commencement of the Punjab Security of Land Tenures (Amendment) Act (Punjab Act No. 46 of 1957) in the prescribed manner.(f) The prescribed authority is given the power to select the permissible area of a landowner under sub-section (2 ) of section 5-B but the mandatory condition attached to the exercise of that power is that it shall be resorted to only if the landowner has failed to select his permissible area in accordance with the provisions of sub- section (1) of that section. In other words, if the concerned land-owner has already selected his permissible area in accordance with the provisions of sub-section (1) of section 5-B, sub -section (2) of that section does not come into play at all and there is no occasion for the exercise by the prescribed authority of the power of selection.These conclusions further lead to the inference that if the prescribed authority (in this case the Special Collector) exercises the power of selection in a situation to which sub-section 5-B is not attracted, his order would be without jurisdiction and a nullity and that is precisely what has happened in this case. As held by us earlier, respondent No. 3 had made a selection of his permissible area in accordance with the provisions of sub-section (1) of section 5-B a selection which the prescribed authority had no power to vary either under sub-section (2) of section 5-B or under any other provisions of the Act. The order of the Special Collector dated March 30, 1962 must, therefore, be held to have been passed without jurisdiction and, therefore, to be a nullity.Nor do we see how any equities arise in favour of the appellants, such as would entitle them to have the land in question included in the permissible area of respondent No. 3. It is not their case that any representation to the effect that land would be so included was made to them by either respondent No. 3 or respondent No. 4. Furthermore they must be credited with full knowledge of the extent of the land owned by respondent No. 3 and of the con sequences flowing therefrom in view of the provisions of the Act. Thus they acquired the land with their eyes open and subject to all the liabilities and defects from which it suffered in the hands of their transferor (and also their transferors transferor). In the absence of word of month of respondent No. 3 or his conduct to the contrary; they cannot now be heard to say that if respondent No. 3 exercises a right of selection of his permissible area which the Act confers on him, that right must be modified to suit their convenience.In this connection we may also mention that the inclusion of the land in question in the surplus area of respondent No. 3 does not affect the right of ownership of the appellants. Of course the result of such inclusion would certainly be that the concerned authorities would be enabled to settle tenants on the land as permitted by the Act-and that is a risk which the appellants must be deemed to have bought with the land.
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H.H.M.Shantadevi P. Gaekwad Vs. Savjibhai H. Patel | would be wholly inequitable to enforce specific performance for (i) residential houses for weaker Sections of the society cannot be constructed in view of the existing master plan and, thus, no benefit can be given to the said section of the society; (ii) In any case, it is extremely difficult, if not impossible, to continuously supervise and monitor the construction and thereafter allotment of such houses; (iii) the decree is likely to result in uncalled for bonanza to the plaintiff; (iv) patent illegality of order dated 20th June, 1998; (v) absence of law or any authority to determine excess vacant land after construction of 4356 dwelling units; and (vi) agreement does not contemplate the transfer of nearly 600 acres of land in favour of the plaintiff for construction of 4356 units for which land required is about 65 acres. The object of the act was to prevent concentration of urban land in hands of few and also to prevent speculation and profiteering therein. The object of Section 21 is to benefit weaker sections of the society and not the owners. If none of these objects can be achieved, which is the factual position, it would be inequitable to still maintain decree for specific performance. 48. The contentions urged on behalf of the plaintiff by their learned Counsel that in view of clauses (6) and (7) of the agreement, despite repeal of the ULC Act, plaintiff would be entitled to specifically enforce the agreement has also no merit. The acceptance of the contention will mean that original defendant No. 1 before delivery of possession had no right to terminate the agreement. This contention placed on behalf of the plaintiff has already been rejected by us. Reading clauses (6) and (7) harmoniously with clauses (4) and (17), the contention of learned Counsel cannot be accepted. In view of these conclusions, the contention of Mr. Dhanuka that reputation of the plaintiff as a builder would be adversely affected if houses are not built is hardly of any relevance. In any case, in this regard we may refer to the decision of this court in K. Narendra v. Riviera Apartments (P) Ltd., 1999(5) SCC 77 : 1999(3) RCR(Civil) 292 (SC), a case in which this Court examined an agreement which contemplated several sanctions and clearances that were not within the power of the parties. The result was that the feasibility of a multi-storeyed complex as proposed and planned became impracticable. In that case too the seller continued to remain in possession. Under these circumstances, it was held that the contract though valid at the time when it was entered, is engrossed in such circumstances that the performance thereof cannot be secured with precision and that the discretionary jurisdiction to decree the specific performance ought not to be exercised. Dealing with the question of reputation of the purchaser as a builder being at stake, this Court held that `this is hardly a consideration which can weigh against the several circumstances.......if a multi-storyed complex cannot come up on the suit property, the respondents plans are going to fail in any case. The position in the present case is quite similar. Under the scheme as postulated by the ULC Act, it is not permissible to construct dwelling units for the residence of the weaker sections of the society. 49. It also deserves to be noticed that, strictly speaking, it is not a contract for transfer of the property but is a contract to carry out the scheme which is incapable of being carried out at this stage on account of reservation in the Master plan and also repeal of the ULC Act. It was not and cannot be the case of the plaintiff that in case the scheme had been carried out, he would have enjoyed the property. He would have only enjoyed the specified profits. At best the plaintiff could pray for damages. In the plaint, it was asserted that Rs. 16,75,000/- were spent on execution and/or implementation of the scheme. The plaintiff, for reasons best known to him, has not sought a decree for any damages, even as an alternative relief. 50. Before concluding, we may place on record that during the course of hearing, a statement was made by the appellants that in the event of the appeal and the transferred writ petition being allowed, they will unconditionally offer in writing 66 acres of land to the Government of Gujarat. The said statement reads as under : 1. The appellant through his counsel states : that even in the event of this Honble Court allowing the appeal and Transferred Writ Petition : (a) the appellant will unconditionally offer in writing 66 acres of land (unencroached and unencumbered earmarked in the plan attached) to the Government of Gujarat by way of gift or for acquisition (on a compensation of Re. 1) for the specific purpose of constructing residential dwelling units (permissible under VUDA or LIG Schemes of the Gujarat Housing Board) at the cost of Government for low-income groups. (b) if such offer is not accepted within a period of four months from the date of offer the appellant will undertake the responsibility of utilising the said land (i.e. to say approximately 65.95 acres of land) for constructing thereon dwelling units (if permitted under the relevant Town Planning Laws) for housing persons in the low-income group and letting or selling the same to such persons in low income group on no profit on loss basis : the total cost of such a project will be got certified by a reputed Chartered Accountant. 51. The appellant would be bound by the aforesaid undertaking which we accept. 52. Before parting, we wish to express, to put it mildly, our deep anguish on the manner in which the specified authority, competent authority and the State of Gujarat has been conducting itself before the trial Court, High Court and this Court. Different stands at different points of time have been taken sometimes supporting the plaintiff and sometimes the defendants. | 1[ds]8. From facts it is evident that the transaction in question was entered into because of enactment of the ULC Act. An agreement dated 24th March, 1977 was entered into between the Fatehsinhrao P. Gaekwad as the owner and Savjibhai Haribhai Patel as the licensee in respect of a portion of property known as Laxmi Vilas Palace Estate, Vadodara. For sake of convenience hereinafter Fatehsinhrao P. Gaekwad has been referred as `original defendant No. 1 and Savjibhai Haribhai Patel as `plaintiff. The Memorandum of Agreement (for short, `the agreement) recites that the plaintiff has evolved a scheme for constructing dwelling units for the accommodation of the weaker sections of the society as envisaged by Section 21(1) of the ULC Act. The said units are to be constructed on a portion of land of the owners propertyLaxmi Vilas Palace Estate, save and except Laxmi Vilas Palace, Moti Baug Palace and Nazar Baug Palace. The area under these three palaces which is to be excluded is said to be approximately 100 acresequivalent to about 4,00,000 square metres. The total land of the property is about 707 acres. A power of Attorney (for short, `the power) was also executed on 24th March, 1977 by original defendant No. 1 in favour of the plaintiff. It, inter alia, stipulates that the power is irrevocable9. Five schemes under Section 21 of the ULC Act were filed before the competent authority for the construction of the dwelling units of accommodation of the weaker sections of the society. The first scheme was filed under the signatures of original defendant No. 1 on 15th March, 1977. It stipulated construction of 64,306 dwelling units at the proposed cost of about. It is not in dispute that even this scheme was evolved by the plaintiff. The plaintiff as power of attorney holder of original defendant No. 1 submitted a second scheme on 5th October, 1977 for construction of 38,375 dwelling units at the estimated cost of about Rs.. On 6th February, 1978 another scheme was submitted by the plaintiff which stipulated construction of 35,660 dwelling units at the proposed cost of Rs.. On 5/8th January, 1979 yet another scheme (4th scheme) for construction of 25,482 dwelling units at the estimated cost of about Rs. 48,35,00,000/was submitted. Finally, a scheme (5th scheme) proposing construction of 4,356 dwelling units at the estimated cost of about Rs. 13,37,000,00/was submitted on 29th January, 1979 by the plaintiff as a power of attorney holder of original defendant No. 112. Under the aforesaid circumstances, a suit was filed by the plaintiff against original defendant No. 1 on 7th April, 1980 seeking declaration that cancellation of the agreement and the power was illegal and also praying for decree of specific performance of the agreement besides seeking injunction and other consequential reliefs. The suit was originally filed against Fatehsinhrao Gaekwad as the only defendant. Later, however, the specified authority, the competent authority and the State of Gujarat were impleaded as defendants to the suit. Original defendant No. 1 died during the pendency of the suit and his legal representatives were brought on recordA decree for specific performance of the agreement was also granted in favour of the plaintiff. The defendants were ordered to specifically perform the agreement and were restrained from committing breach of the agreement, power of attorney and obstructing the plaintiff from acting as constituted attorney of defendant No. 1 and from taking any action regarding the scheme22. The agreement and power contemplate two stages for the parties to take steps required to them. Certain steps are required to be taken by the plaintiff prior to the grant of declaration under Section 21 and before he is put into possession and certain steps after such grant and on being put into possession. The plaintiff is required to prepare a scheme in conformity with Section 21 at this cost and to file on behalf of the owner a declaration in regard to the said property before the competent authority within the prescribed period. The original defendant No. 1 is required to sign relevant papers, applications, plans, drawings etc. as and when required by the plaintiff for the purposes of declaration and inquiries contemplated by Section 21(1) of the ULC Act. On making of declaration, as per clause (4), original defendant No. 1 is required to deliver possession of the land to the plaintiff for execution of the scheme and construction in terms thereof. The plaintiff is authorised to recover the price of the land as may be determined by the competent authority and/or the State Government from their prospective members in the scheme; and is also entitled to receive deposits from the members and obtain loans from banks and other financial institution and/or individuals for financing the scheme. Likewise, in the power of attorney also the plaintiff has been authorised to take certain steps on behalf of the owner before the grant of declaration under Section 21 and being put into possession and certain steps after being put into possession. It is correct, as contended by Mr. Dhanuka, that these documents form part of same transaction. These documents have to be read together with a view to find out the manifest intention of the parties. It may, however, be noticed thatn dated 10th February, 1988 was executed only by original defendant No. 1 for the purpose of filing it before the competent authority and it reiterates the agreement and the power. By execution of this document it was neither intended to confer any additional rights in favour of the plaintiff nor to place any restriction on original defendant No. 1 which was not envisaged by the agreement24. It is common ground that the main purpose for which the agreement was entered into between the parties was the construction of residential houses for the weaker sections of the society in term of Section 21 of the ULC Act. Mr. Nariman contended on behalf of the appellants that under the applicable master plan the suit land is reserved for `open space and residential houses cannot be constructed thereupon and, therefore, the agreement, is incapable of specific performanceOne of the salient features of the said circular was that the scheme shall be in consistence with the Master plan. It was provided that the scheme submitted should adhere to the prevailing municipal Regulations, Town Planning requirements and other statutory requirements. If any development is required as per these regulations, then the scheme should include such development. It also provided that permissible density and other regulations like minimum size, common plot, minimum height, specification and construction of stores etc. will also have to be adhered to. It further provided that the permission to undertake the scheme will be given only in residential zones as indicated in the Development Plan28. The Gujarat Government in supersession of the earlier circular dated 1st April, 1978 issued fresh guidelines on 22nd May, 1979 regarding the implementation of schemes under Section 21 of the ULC Act. These guidelines, inter alia, stipulated that the area of 50% of the total house shall not increase 40 square metres and the plinth area in the remaining building plinth area shall not exceed 80 square meters. The construction work under the scheme should be in consonance with the provisions of the Master Plan and should be over within 5 years from the date of the sanction under Section 21(1) granted by the competent authority. The units constructed under the scheme shall be allotted to the weaker sections of the society by way of sale ore or on hire basis. It also provided that the construction shall be made in accordance with the Town Planning Regulation, Municipal Regulation, Building Regulation etc. The Competent officer shall grant the scheme subject to the building regulation, margin of the municipal corporation, panchayat etc. According to the guidelines, the specified officer and the competent officer are required to ensure that the conditions are complied with. The guidelines stipulated the withdrawal of exemption in case of violation of any of the conditions. It is of significance to note that it was specifically provided that at the time of sanctioning the scheme, the competent authority shall ensure that the land in respect of which the scheme is submitted is not placed in reservation. As already stated, the land in question is shown as open space in the draft development plan of Vadodara30. The facts of Atia Begums case show that it is a case which relates to quantification of vacant land. The present case is not of quantification of vacant land. Atia Begum was not concerned with the question of Town Planning Laws and the schemes under Section 21 of the ULC Act which is one of the principlal question with which we are concerned here. It was not held in Atia Begum that planning and development which is a state subject would stand frozen on 17th February, 1976. The said decision cannot be read as laying down the law that for all and every purpose, the master plan as in existence on 17th February, 1976 will freeze.We leave open the question whether even for the purpose of quantification of vacant land that has become such after 17th February, 1976, would the position in regard to the master plan as existing on 17th February, 1976 remains unaltered or not. In the present case, on this aspect, it is not necessary to examine the correctness of the decision in Atia Begums case31. It deserves to be emphasised that by passing a resolution under clause (1) of Article 253, the State Legislature only surrendered the right to legislate in respect of laws relating to the imposition of a ceiling on the holding of urban immovable property in excess of the ceiling and all matters connected therewith or ancillary and incidental thereto in favour of the Parliament by law. It was only a limited surrender in terms of the said resolution. The aspect of Town Planning and Development by the State has not been surrendered. The imposition of ceiling on urban immovable property is an independent subject. The primary object of the Act, as already noticed, was to prevent the concentration of urban land in the hands of a few persons and speculation and profiteering therein, and to bringing about an equitable distribution of land in urban agglomerations to subserve the common good. Basically, one uniform policy is fully understandable on such a subject and that is why on this aspect there was surrender by most of States in favour of the Parliament. The town planning, however, is altogether an independent and different subject. It is a State subject. It differs from state to State. It cannot be said that by surrendering its right to legislate on the aspect of imposition of ceiling on urban immovable property, the State Legislature also surrendered the right of development and town planning. These are essentially the rights within the purview of the State Government. The object of the ULC Act is not to sanction or permit development in the States contrary to their statutory town planning laws. The development and the town planning is an ongoing process. It goes on changing from time to time depending upon the local needs. The definition of `master plan contemplates the plan prepared under any law `for the time being in force or `in pursuance of an order made by the State Government for the development of such area or part thereof and providing for the stages by which such development shall be carried out. The definition does not contemplate a static master plan. For claiming the benefit of Section 21, the construction of the dwelling units for the accommodation of the weaker sections of the society on the land has to be if permissible as per relevant master plan when the scheme is considered by the authorities for sanction. If the land use requires the land to be used for some other purposes, it cannot be said that to grant benefit under Section 21, the land should be permitted to be used for construction of residential units. It was not intended and could never have been intended that Section 21 will take away the State power of town planning or on coming into force of the ULC Act, the Master Plan would freeze. The rules made under the ULC Act further make the position quite clear. RuleA was introduced and brought into force by amendment of Urban Land (Ceiling and Regulation) Rules on 19th December, 1977. RuleA reads as under :33. In view of above position, the High Court erroneously relying on Atia Begum held that the user as provided in the master plan as in existence on 17th February, 1976 alone is to be seen and the subsequent change in the master plan reserving the land for open space is of no consequence. The view of the competent authority in the order dated 20th June, 1998 that the land would permanently remain in residential zone is also erroneous. Further, the competent authority erroneously assumed, it seems, that the High Court directed it to grant sanction under Section 21 of the ULC Act. The High Court only directed the competent authority to decide the matter according to law. Atia Begums case cannot be held to have laid down a proposition that use as provided in the master plan as in existence on 17th February, 1976 will remain unchanged. The relevant master plan is the one which is prevalent when the scheme under Section 21 is taken up for consideration by the authorities and for this purpose neither the date of filing the scheme nor the date of enforcement of the ULC Act, is relevant. The development will not freeze on the enforcement of the ULC Act or presentation of the scheme34. In the present case, in the draft development plan of 1979 which was finalised during the pendency of the suit, the land in question is reserved for open space etc. It cannot be doubted that the agreement had been entered into between the parties mainly and rather only with the object of construction of residential houses under the scheme under Section 21 of the ULC Act for accommodation of weaker sections of the society. In May, 1979, it became evident that it will not be possible to construct residential houses in view of what was provided in the master plan. There is no substance in the contention that assuming the prescribed land use is `open space, still there will be no impediment in the implementation of scheme inasmuch as there is no absolute bar for construction of residential houses36. A bare reading of the aforesaid provision shows that it is not applicable to Section 21 of the ULC Act. Orders sanctioning schemes under Section 21 have not been saved by Section 3. The contention urged on behalf of the appellants and also the State Government is that the schemes under Section 21 are not saved by Section 3 of the ULC Act. Admittedly, the land has not vested with the Government under Section 10(3). Possession continues to be with the appellants. Mr. Bhatt, learned Counsel for the State Government as well for the authorities has argued that the necessary consequence of the repeal, on the facts of the present case, is that the land would be free from any constraints to which it may have been subjected under the ULC Act. Mr. Dhanuka, however, contended that Section 3 of the repealing Act is not exhaustive. Relying upon Section 6 of the General Clauses Act, learned Counsel submits that the repeal does not affect rights accrued in favour of the plaintiff under the ULC Act. Section 6 of the General Clauses Act, inter alia, provides that where any Central Act repeals any enactment, unless a different intention appears, the repeal shall not affect anything duly done or affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed37. We have no difficulty in accepting the contention that a repealing statute is not exhaustive and does not automatically extinguish the accrued rights unless taken away expressly41. We are unable to agree with the approach of the High Court and find substance in the contention of Mr. Nariman. Clause (17) is in the nature of express stipulation that before delivery of possession, the contract could be unilaterally terminated. When there is no ambiguity in the clause, the question of intendment is immaterial. The fact that the clause is couched in a negative form is of no consequence. The intention is clear from the plain language of clause (17) of the agreement. In the case in hand, Section 202 has no applicability. It is not a case of agency coupled with interest. No interest can be said to have been created on account of plaintiff being permitted to prepare the scheme and take ancillary steps. Plaintiff could not get possession before declaration under Section 21 of the ULC Act. Mr. Dhanuka also contended that the agreement is not determinable is clear from the conduct of original defendant No. 1 and also what he stated in then dated 10th February, 1978 about agreement not being terminable. The contention of learned Counsel is that what original defendant No. 1 has said in the said document is his interpreting statement which is admissible in law and this interpreting statement and also his conduct, clearly shows that agreement was not terminable by original defendant No. 1.In the present case we are concerned with an unambiguous document and, therefore, we have to go by its plain meaning. Further,n only reiterated what was contained in the agreement. It did not enlarge the agreement. It did not substitute any clause in the agreement. It was not a document executed between the parties. It was a document executed by original defendant No. 1 alone for the purposes of filing it before the competent authority. Clause 17 of the agreement does not call for any other interpretation except that the contract could be unilaterally rescinded before delivery of possession44. From the aforesaid, it is clear that this Court did not accept the contention that the clause in the insurance policy which gave absolute right to the Insurance Company was void and had to be ignored. The termination as per the term in the insurance policy was upheld. Under general law of contracts any clause giving absolute power to one party to cancel the contract does not amount to interfering with the integrity of the contract. The acceptance of the argument regarding invalidity of contract on the ground that it gives absolute power to the parties to terminate the agreement would also amount to interfering with the right of the parties to freely enter into the contracts. A contract cannot be held to be void only on this ground. Such a broad proposition of law that a term in a contract giving absolute right to the parties to cancel the contract, is itself enough to void it cannot be accepted45. In view of above discussion, we find force in the contention that the agreement in question was terminable before delivery of possession; it was so determined and to the agreement clause (c) of Section 14(1) of the Specific Relief Act, 1963 applies. Therefore, agreement cannot be specifically be enforced51. The appellant would be bound by the aforesaid undertaking which we accept52. Before parting, we wish to express, to put it mildly, our deep anguish on the manner in which the specified authority, competent authority and the State of Gujarat has been conducting itself before the trial Court, High Court and this Court. Different stands at different points of time have been taken sometimes supporting the plaintiff and sometimes the defendants. | 1 | 14,535 | 3,609 | ### 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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would be wholly inequitable to enforce specific performance for (i) residential houses for weaker Sections of the society cannot be constructed in view of the existing master plan and, thus, no benefit can be given to the said section of the society; (ii) In any case, it is extremely difficult, if not impossible, to continuously supervise and monitor the construction and thereafter allotment of such houses; (iii) the decree is likely to result in uncalled for bonanza to the plaintiff; (iv) patent illegality of order dated 20th June, 1998; (v) absence of law or any authority to determine excess vacant land after construction of 4356 dwelling units; and (vi) agreement does not contemplate the transfer of nearly 600 acres of land in favour of the plaintiff for construction of 4356 units for which land required is about 65 acres. The object of the act was to prevent concentration of urban land in hands of few and also to prevent speculation and profiteering therein. The object of Section 21 is to benefit weaker sections of the society and not the owners. If none of these objects can be achieved, which is the factual position, it would be inequitable to still maintain decree for specific performance. 48. The contentions urged on behalf of the plaintiff by their learned Counsel that in view of clauses (6) and (7) of the agreement, despite repeal of the ULC Act, plaintiff would be entitled to specifically enforce the agreement has also no merit. The acceptance of the contention will mean that original defendant No. 1 before delivery of possession had no right to terminate the agreement. This contention placed on behalf of the plaintiff has already been rejected by us. Reading clauses (6) and (7) harmoniously with clauses (4) and (17), the contention of learned Counsel cannot be accepted. In view of these conclusions, the contention of Mr. Dhanuka that reputation of the plaintiff as a builder would be adversely affected if houses are not built is hardly of any relevance. In any case, in this regard we may refer to the decision of this court in K. Narendra v. Riviera Apartments (P) Ltd., 1999(5) SCC 77 : 1999(3) RCR(Civil) 292 (SC), a case in which this Court examined an agreement which contemplated several sanctions and clearances that were not within the power of the parties. The result was that the feasibility of a multi-storeyed complex as proposed and planned became impracticable. In that case too the seller continued to remain in possession. Under these circumstances, it was held that the contract though valid at the time when it was entered, is engrossed in such circumstances that the performance thereof cannot be secured with precision and that the discretionary jurisdiction to decree the specific performance ought not to be exercised. Dealing with the question of reputation of the purchaser as a builder being at stake, this Court held that `this is hardly a consideration which can weigh against the several circumstances.......if a multi-storyed complex cannot come up on the suit property, the respondents plans are going to fail in any case. The position in the present case is quite similar. Under the scheme as postulated by the ULC Act, it is not permissible to construct dwelling units for the residence of the weaker sections of the society. 49. It also deserves to be noticed that, strictly speaking, it is not a contract for transfer of the property but is a contract to carry out the scheme which is incapable of being carried out at this stage on account of reservation in the Master plan and also repeal of the ULC Act. It was not and cannot be the case of the plaintiff that in case the scheme had been carried out, he would have enjoyed the property. He would have only enjoyed the specified profits. At best the plaintiff could pray for damages. In the plaint, it was asserted that Rs. 16,75,000/- were spent on execution and/or implementation of the scheme. The plaintiff, for reasons best known to him, has not sought a decree for any damages, even as an alternative relief. 50. Before concluding, we may place on record that during the course of hearing, a statement was made by the appellants that in the event of the appeal and the transferred writ petition being allowed, they will unconditionally offer in writing 66 acres of land to the Government of Gujarat. The said statement reads as under : 1. The appellant through his counsel states : that even in the event of this Honble Court allowing the appeal and Transferred Writ Petition : (a) the appellant will unconditionally offer in writing 66 acres of land (unencroached and unencumbered earmarked in the plan attached) to the Government of Gujarat by way of gift or for acquisition (on a compensation of Re. 1) for the specific purpose of constructing residential dwelling units (permissible under VUDA or LIG Schemes of the Gujarat Housing Board) at the cost of Government for low-income groups. (b) if such offer is not accepted within a period of four months from the date of offer the appellant will undertake the responsibility of utilising the said land (i.e. to say approximately 65.95 acres of land) for constructing thereon dwelling units (if permitted under the relevant Town Planning Laws) for housing persons in the low-income group and letting or selling the same to such persons in low income group on no profit on loss basis : the total cost of such a project will be got certified by a reputed Chartered Accountant. 51. The appellant would be bound by the aforesaid undertaking which we accept. 52. Before parting, we wish to express, to put it mildly, our deep anguish on the manner in which the specified authority, competent authority and the State of Gujarat has been conducting itself before the trial Court, High Court and this Court. Different stands at different points of time have been taken sometimes supporting the plaintiff and sometimes the defendants.
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of the ULC Act or presentation of the scheme34. In the present case, in the draft development plan of 1979 which was finalised during the pendency of the suit, the land in question is reserved for open space etc. It cannot be doubted that the agreement had been entered into between the parties mainly and rather only with the object of construction of residential houses under the scheme under Section 21 of the ULC Act for accommodation of weaker sections of the society. In May, 1979, it became evident that it will not be possible to construct residential houses in view of what was provided in the master plan. There is no substance in the contention that assuming the prescribed land use is `open space, still there will be no impediment in the implementation of scheme inasmuch as there is no absolute bar for construction of residential houses36. A bare reading of the aforesaid provision shows that it is not applicable to Section 21 of the ULC Act. Orders sanctioning schemes under Section 21 have not been saved by Section 3. The contention urged on behalf of the appellants and also the State Government is that the schemes under Section 21 are not saved by Section 3 of the ULC Act. Admittedly, the land has not vested with the Government under Section 10(3). Possession continues to be with the appellants. Mr. Bhatt, learned Counsel for the State Government as well for the authorities has argued that the necessary consequence of the repeal, on the facts of the present case, is that the land would be free from any constraints to which it may have been subjected under the ULC Act. Mr. Dhanuka, however, contended that Section 3 of the repealing Act is not exhaustive. Relying upon Section 6 of the General Clauses Act, learned Counsel submits that the repeal does not affect rights accrued in favour of the plaintiff under the ULC Act. Section 6 of the General Clauses Act, inter alia, provides that where any Central Act repeals any enactment, unless a different intention appears, the repeal shall not affect anything duly done or affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed37. We have no difficulty in accepting the contention that a repealing statute is not exhaustive and does not automatically extinguish the accrued rights unless taken away expressly41. We are unable to agree with the approach of the High Court and find substance in the contention of Mr. Nariman. Clause (17) is in the nature of express stipulation that before delivery of possession, the contract could be unilaterally terminated. When there is no ambiguity in the clause, the question of intendment is immaterial. The fact that the clause is couched in a negative form is of no consequence. The intention is clear from the plain language of clause (17) of the agreement. In the case in hand, Section 202 has no applicability. It is not a case of agency coupled with interest. No interest can be said to have been created on account of plaintiff being permitted to prepare the scheme and take ancillary steps. Plaintiff could not get possession before declaration under Section 21 of the ULC Act. Mr. Dhanuka also contended that the agreement is not determinable is clear from the conduct of original defendant No. 1 and also what he stated in then dated 10th February, 1978 about agreement not being terminable. The contention of learned Counsel is that what original defendant No. 1 has said in the said document is his interpreting statement which is admissible in law and this interpreting statement and also his conduct, clearly shows that agreement was not terminable by original defendant No. 1.In the present case we are concerned with an unambiguous document and, therefore, we have to go by its plain meaning. Further,n only reiterated what was contained in the agreement. It did not enlarge the agreement. It did not substitute any clause in the agreement. It was not a document executed between the parties. It was a document executed by original defendant No. 1 alone for the purposes of filing it before the competent authority. Clause 17 of the agreement does not call for any other interpretation except that the contract could be unilaterally rescinded before delivery of possession44. From the aforesaid, it is clear that this Court did not accept the contention that the clause in the insurance policy which gave absolute right to the Insurance Company was void and had to be ignored. The termination as per the term in the insurance policy was upheld. Under general law of contracts any clause giving absolute power to one party to cancel the contract does not amount to interfering with the integrity of the contract. The acceptance of the argument regarding invalidity of contract on the ground that it gives absolute power to the parties to terminate the agreement would also amount to interfering with the right of the parties to freely enter into the contracts. A contract cannot be held to be void only on this ground. Such a broad proposition of law that a term in a contract giving absolute right to the parties to cancel the contract, is itself enough to void it cannot be accepted45. In view of above discussion, we find force in the contention that the agreement in question was terminable before delivery of possession; it was so determined and to the agreement clause (c) of Section 14(1) of the Specific Relief Act, 1963 applies. Therefore, agreement cannot be specifically be enforced51. The appellant would be bound by the aforesaid undertaking which we accept52. Before parting, we wish to express, to put it mildly, our deep anguish on the manner in which the specified authority, competent authority and the State of Gujarat has been conducting itself before the trial Court, High Court and this Court. Different stands at different points of time have been taken sometimes supporting the plaintiff and sometimes the defendants.
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Apar Private Limited Vs. S. R. Samant | the management had no unilateral right to cut wages on a pro rata basis for failure or refusal to carry on with the work during some time of the fixed hours of duty. Under the circumstances it does not appear that the principle "no work; no wages" can have any application to the facts of the present case. (14) SHRI Khambatta had also contended that there can never be unfair labour practice unless Mala fides or want of good faith exist. The proposition is too wide and general to be accepted. If there is a failure to implement settlement, that by itself is an evidence of Mala fields, and/or want of good faith. We do not think that existence of financial difficulty or lowering of production level could be a good ground affording justification for failure to implement the settlement under the circumstances. The facts that the petitioner reduced the wages to less than even 1971 agreement and did neither prosecute the complaint against the employees nor took disciplinary action are pointers towards want of good faith in the present case. We may at this stage merely take note of the findings recorded by the Tribunal that low production was due to retrenchment of employees and reduction of quota of basic raw material. we will indicate our reasons for not disturbing them little later. (15) ON the basis of S. 30 (1) (b) of the Maharashtra Act No. 1 of 1972 it was submitted that even if unfair labour practice was proved, the Industrial Court was not obliged to grant the relief of issuance of direction of implementing the settlement. In lieu of that other reasonable relief such as compensation, etc. can be awarded to the employees. We do not think such a course under the circumstances would have been either legal or proper. The Tribunal has taken care to order implementation of the settlement only till the date of the closure of the company and no reason whatsoever exists for granting less than what was granted. (16) IT was contended that in the present complaint which was at the behest of a single employee the general order of implementing the settlement in respect of all the workers cannot be passed. In the first place it does not appear that the parties treated the present matter as a individual dispute only. Even before the recording of the evidence commenced the union was added as a party in the writ petition. The relief claimed in the complaint was the general relief for all. From the affidavits filed on record by the petitioner also it is clear that the management has given evidence with relation to all the workers and the general conditions regarding indiscipline, loss of production, etc. Moreover, such a point was neither raised before the Tribunal nor has been raised in the writ petition. Under the circumstances we do not think it would be proper to permit the writ petitioner to raise this point for the first time before us during the course of hearing, specially when even from paragraph 23 of the petition it is apparent that interim payment as ordered was made by the petitioner to all the workmen during the pendency of the complaint and the various figures supplied for that purpose also related to all the workers in general. Moreover, under the scheme of the Act it seems to us that not only in individual worker but an investigating officer can also file a complaint making a grievance generally about all workers.(17) THIS takes us to the next point regarding low production due to go-slow. Voluminous evidence has been placed before the Tribunal in the form of oral as well as documentary evidence from which it does appear that the workers did indulge in acts of indiscipline, disorderly behaviour and even rowdisum. It also appears that they raised certain demands contrary to the settlement. It is possible that all these has contributed to the inefficiency and low production. While by no stretch of imagination what workers did in the factory can be justified, the basic question is whether the production had gone down only because of the attitude of the workers. The extent of that contribution cannot also be spelt out on the basis of material on record. The Industrial Tribunal has arrived at a finding of fact that the figures of production produced before related only to few departments and out of total 700 employees 116 were retrenched. The companys allotment of basic raw product - aluminum was reduced from 7390 metric tones to 2038 and there had been non-supply of even that allotted quantity. The Tribunal has also referred to certain inconsistent statements made by Shri Patil, the factory manager and under all these circumstances arrived at the finding of fact that burden of proof of justification for such drastic reduction of the wages and other emoluments. We do not think that we can call this appreciation of evidence perverse so as to attract interference under Art. 226 of the constitution, mainly because no oral evidence as such is adduced by the workers. (18) SHRI Khambatta also attempted to argue that some time in December, 1976 during the pendency of the dispute before Tribunal there has been some settlement superseding the settlement of 1974. The Tribunal has given its decision in January, 1980 and affidavit of Shri madhu Holmagi the officer of the petitioner was filed in the Tribunal on 5-7-1977 that is approximately after 7 months after the so called settlement. The settlement was admittedly not brought on record before the Tribunal nor any reference was made to it during the course of the hearing before the Tribunal. There is no reference to the settlement even in the present petition and under these circumstances it will be improper and unjust to take note of this so called settlement to which reference was made at the fag end of argument. Hence, it will not be proper to base our judgment on that aspect. | 0[ds](5) BEFORE proceeding with the points raised, we would like to mention that as far as the term regarding payment of production bonus is concerned the scheme envisaged under the agreement was not formulated. The production bonus was, therefore, being paid on the basis of the earliersee no substance whatsoever in the submission and no justification for putting such a narrow construction on the words of the relevant item. Failure to implement the settlement would include failure to implement not only at the initial stage but at any point of time till the settlement was in force and had binding effect on the party. In view of the admitted position that it was to remain in force upto the end of April, 1977 it seems clear to us that the action of the management cannot fall out of the item by virtue of the only fact that there has beene see considerable force in this point raised by Shri Shetye. Independent of the question, as to whether the workmen did indulge into acts of indiscipline and deliberatetactics, the basic question is whether even in such case there was any right in the employer to deduct the wagesNOW it cannot be disputed that the wages can be deducted either in terms of settlement or in terms of the statutory provisions. Turning to the question of statutory provision permitting deduction, we may notice certain provision of the Payment of Wages Act, Sections 7 and 9 of the said Act permits certain deductions from wages on certain grounds. While S. 7 deals with contingencies other than the absence from duty, S. 9 refers to the same. The Legislature in its wisdom has chosen not to permit the employer, deduction from wages on the grounds and contingencies with which we are presently dealing with, as will be clear from these provisions. Even if the claim for wages made in terms of Payment of Wages Act it would not be possible for the petitioner to withhold the payments under the settlement on the grounds on which it unilaterally reduced the wages and any otherdo not think that the argument is sound. Undisputed position is that all these workers including the second respondent were on the permanent roll of the petitioner and were being paid on monthly basis. They had fixed duty hours and had attended the duty within that period and indeed did work. The moment this is established it is clear that they became entitled to "wages" as defined under the Payment of Wages Act. Wages include not only actual wages but also potential one. The employees do not earn wages, hour to hour or minute to minute. The contract of employment admittedly was subsisting in spite of the so calledwork. It is pertinent to note that no norms have been fixed either workman wise or department wise, to spell out the individual liability or responsibility to do particular quantity of work. In these state of affairs it seems to us that reduction of wages or of the emoluments on the allegation that the workers in general had resorted tois wholly impermissible in law, specially when they were notemployees. There can arise a case of settlement under which such deduction is specifically provided for. Different consideration may arise in such a case. Settlement in question contains no provision authorising the petitioner to deduct any part of the salary either on pro rata basis or to the bare statutory minimum for failure or refusal on the part of the employees to carry on their work in such manner as would bring particular production level. This is not to suggest that the individual worker or the workers in general can commit misconduct and still can goThe standing orders as well as the terms of the settlement provide for remedy relating to such misconduct on the part of the employees. Remedies include, having disciplinary action, claim for damages on partial failure of consideration and complaining of unfair labour practice on the part of the employees to the appropriate Tribunal in terms of maharashtra Act No. 1 ofthese circumstances and taking into consideration the whole scheme and object of the Act, it seems clear to us that Schedule III refers to the unfair labour practice not only on the part of the trade unions but also employees though the said word is absent from the caption. We agree with Shri Shetye that the Act in terms provide for taking action against individual employee or employees in general on the ground of unfair labourIN the present matter, we are informed by the parties that the petitioner in fact had filed a complaint bearing ULP No. 351 of 1976 against the employees on the allegation that they had resorted toThis complaint came to be dismissed in default of the petitioner on 31st January, 1977. In the next year another complaint on the same ground was filed against the union which was registered as ULP No. 8 of 1977 which came to be dismissed onthe ground that it was defective and was not legally maintainable. At this very stage we may also notice one fact and it is to the effect that nearly a month after impugned notice datedthe petitioner gave a notice of change in terms of S. 9a of the Industrial Disputes Act seeking to terminate the settlement. In view of this legal as well as factual position the grievance of the petitioner that it had no alternative than to resort to unilateral reduction seems to beIN our judgment, therefore, in the absence of a specific term in settlement or statutory provision an employer has no right to reduce the wages or the emoluments on the allegation that the workers had resorted to go slow tactics or had not performed their part of the obligation in a settlement. Applying this test to the present case we see absolutely no justification on the part of the management to issue the disputed notice dated 21st August, 1975 reducing the wages to the bare minimum fixed under the Minimum Wages Act and in going behind even the earlier agreement dated the 23rd January, 1971. It is clear that the management has proceeded on the assumption that the workers have indulged into serious types of misconduct. Reduction of wages under the circumstances is clearly a punishment. Such penal action is not permissible without holding necessary enquiry as it is violative of principles of natural justice. There is absolutely no justification for such action, specially when it has been taken unilaterally. After all pay packet is the property of the workman and there can be no deprivation of it except in due process of law.To our mind, the answer is in thethe circumstances it does not appear that the principle "no work; no wages" can have any application to the facts of the presentdo not think that existence of financial difficulty or lowering of production level could be a good ground affording justification for failure to implement the settlement under the circumstances. The facts that the petitioner reduced the wages to less than even 1971 agreement and did neither prosecute the complaint against the employees nor took disciplinary action are pointers towards want of good faith in the present case. We may at this stage merely take note of the findings recorded by the Tribunal that low production was due to retrenchment of employees and reduction of quota of basic raw material. we will indicate our reasons for not disturbing them littledo not think such a course under the circumstances would have been either legal or proper. The Tribunal has taken care to order implementation of the settlement only till the date of the closure of the company and no reason whatsoever exists for granting less than what wasthe first place it does not appear that the parties treated the present matter as a individual dispute only. Even before the recording of the evidence commenced the union was added as a party in the writ petition. The relief claimed in the complaint was the general relief for all. From the affidavits filed on record by the petitioner also it is clear that the management has given evidence with relation to all the workers and the general conditions regarding indiscipline, loss of production, etc. Moreover, such a point was neither raised before the Tribunal nor has been raised in the writ petition. Under the circumstances we do not think it would be proper to permit the writ petitioner to raise this point for the first time before us during the course of hearing, specially when even from paragraph 23 of the petition it is apparent that interim payment as ordered was made by the petitioner to all the workmen during the pendency of the complaint and the various figures supplied for that purpose also related to all the workers in general. Moreover, under the scheme of the Act it seems to us that not only in individual worker but an investigating officer can also file a complaint making a grievance generally about all workers.(17) THIS takes us to the next point regarding low production due toVoluminous evidence has been placed before the Tribunal in the form of oral as well as documentary evidence from which it does appear that the workers did indulge in acts of indiscipline, disorderly behaviour and even rowdisum. It also appears that they raised certain demands contrary to the settlement. It is possible that all these has contributed to the inefficiency and low production. While by no stretch of imagination what workers did in the factory can be justified, the basic question is whether the production had gone down only because of the attitude of the workers. The extent of that contribution cannot also be spelt out on the basis of material on record. The Industrial Tribunal has arrived at a finding of fact that the figures of production produced before related only to few departments and out of total 700 employees 116 were retrenched. The companys allotment of basic raw productaluminum was reduced from 7390 metric tones to 2038 and there had beenof even that allotted quantity. The Tribunal has also referred to certain inconsistent statements made by Shri Patil, the factory manager and under all these circumstances arrived at the finding of fact that burden of proof of justification for such drastic reduction of the wages and other emoluments. We do not think that we can call this appreciation of evidence perverse so as to attract interference under Art. 226 of the constitution, mainly because no oral evidence as such is adduced by theTribunal has given its decision in January, 1980 and affidavit of Shri madhu Holmagi the officer of the petitioner was filed in the Tribunal onthat is approximately after 7 months after the so called settlement. The settlement was admittedly not brought on record before the Tribunal nor any reference was made to it during the course of the hearing before the Tribunal. There is no reference to the settlement even in the present petition and under these circumstances it will be improper and unjust to take note of this so called settlement to which reference was made at the fag end of argument. Hence, it will not be proper to base our judgment on that aspect. | 0 | 4,842 | 1,991 | ### Instruction:
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the management had no unilateral right to cut wages on a pro rata basis for failure or refusal to carry on with the work during some time of the fixed hours of duty. Under the circumstances it does not appear that the principle "no work; no wages" can have any application to the facts of the present case. (14) SHRI Khambatta had also contended that there can never be unfair labour practice unless Mala fides or want of good faith exist. The proposition is too wide and general to be accepted. If there is a failure to implement settlement, that by itself is an evidence of Mala fields, and/or want of good faith. We do not think that existence of financial difficulty or lowering of production level could be a good ground affording justification for failure to implement the settlement under the circumstances. The facts that the petitioner reduced the wages to less than even 1971 agreement and did neither prosecute the complaint against the employees nor took disciplinary action are pointers towards want of good faith in the present case. We may at this stage merely take note of the findings recorded by the Tribunal that low production was due to retrenchment of employees and reduction of quota of basic raw material. we will indicate our reasons for not disturbing them little later. (15) ON the basis of S. 30 (1) (b) of the Maharashtra Act No. 1 of 1972 it was submitted that even if unfair labour practice was proved, the Industrial Court was not obliged to grant the relief of issuance of direction of implementing the settlement. In lieu of that other reasonable relief such as compensation, etc. can be awarded to the employees. We do not think such a course under the circumstances would have been either legal or proper. The Tribunal has taken care to order implementation of the settlement only till the date of the closure of the company and no reason whatsoever exists for granting less than what was granted. (16) IT was contended that in the present complaint which was at the behest of a single employee the general order of implementing the settlement in respect of all the workers cannot be passed. In the first place it does not appear that the parties treated the present matter as a individual dispute only. Even before the recording of the evidence commenced the union was added as a party in the writ petition. The relief claimed in the complaint was the general relief for all. From the affidavits filed on record by the petitioner also it is clear that the management has given evidence with relation to all the workers and the general conditions regarding indiscipline, loss of production, etc. Moreover, such a point was neither raised before the Tribunal nor has been raised in the writ petition. Under the circumstances we do not think it would be proper to permit the writ petitioner to raise this point for the first time before us during the course of hearing, specially when even from paragraph 23 of the petition it is apparent that interim payment as ordered was made by the petitioner to all the workmen during the pendency of the complaint and the various figures supplied for that purpose also related to all the workers in general. Moreover, under the scheme of the Act it seems to us that not only in individual worker but an investigating officer can also file a complaint making a grievance generally about all workers.(17) THIS takes us to the next point regarding low production due to go-slow. Voluminous evidence has been placed before the Tribunal in the form of oral as well as documentary evidence from which it does appear that the workers did indulge in acts of indiscipline, disorderly behaviour and even rowdisum. It also appears that they raised certain demands contrary to the settlement. It is possible that all these has contributed to the inefficiency and low production. While by no stretch of imagination what workers did in the factory can be justified, the basic question is whether the production had gone down only because of the attitude of the workers. The extent of that contribution cannot also be spelt out on the basis of material on record. The Industrial Tribunal has arrived at a finding of fact that the figures of production produced before related only to few departments and out of total 700 employees 116 were retrenched. The companys allotment of basic raw product - aluminum was reduced from 7390 metric tones to 2038 and there had been non-supply of even that allotted quantity. The Tribunal has also referred to certain inconsistent statements made by Shri Patil, the factory manager and under all these circumstances arrived at the finding of fact that burden of proof of justification for such drastic reduction of the wages and other emoluments. We do not think that we can call this appreciation of evidence perverse so as to attract interference under Art. 226 of the constitution, mainly because no oral evidence as such is adduced by the workers. (18) SHRI Khambatta also attempted to argue that some time in December, 1976 during the pendency of the dispute before Tribunal there has been some settlement superseding the settlement of 1974. The Tribunal has given its decision in January, 1980 and affidavit of Shri madhu Holmagi the officer of the petitioner was filed in the Tribunal on 5-7-1977 that is approximately after 7 months after the so called settlement. The settlement was admittedly not brought on record before the Tribunal nor any reference was made to it during the course of the hearing before the Tribunal. There is no reference to the settlement even in the present petition and under these circumstances it will be improper and unjust to take note of this so called settlement to which reference was made at the fag end of argument. Hence, it will not be proper to base our judgment on that aspect.
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the Industrial Disputes Act seeking to terminate the settlement. In view of this legal as well as factual position the grievance of the petitioner that it had no alternative than to resort to unilateral reduction seems to beIN our judgment, therefore, in the absence of a specific term in settlement or statutory provision an employer has no right to reduce the wages or the emoluments on the allegation that the workers had resorted to go slow tactics or had not performed their part of the obligation in a settlement. Applying this test to the present case we see absolutely no justification on the part of the management to issue the disputed notice dated 21st August, 1975 reducing the wages to the bare minimum fixed under the Minimum Wages Act and in going behind even the earlier agreement dated the 23rd January, 1971. It is clear that the management has proceeded on the assumption that the workers have indulged into serious types of misconduct. Reduction of wages under the circumstances is clearly a punishment. Such penal action is not permissible without holding necessary enquiry as it is violative of principles of natural justice. There is absolutely no justification for such action, specially when it has been taken unilaterally. After all pay packet is the property of the workman and there can be no deprivation of it except in due process of law.To our mind, the answer is in thethe circumstances it does not appear that the principle "no work; no wages" can have any application to the facts of the presentdo not think that existence of financial difficulty or lowering of production level could be a good ground affording justification for failure to implement the settlement under the circumstances. The facts that the petitioner reduced the wages to less than even 1971 agreement and did neither prosecute the complaint against the employees nor took disciplinary action are pointers towards want of good faith in the present case. We may at this stage merely take note of the findings recorded by the Tribunal that low production was due to retrenchment of employees and reduction of quota of basic raw material. we will indicate our reasons for not disturbing them littledo not think such a course under the circumstances would have been either legal or proper. The Tribunal has taken care to order implementation of the settlement only till the date of the closure of the company and no reason whatsoever exists for granting less than what wasthe first place it does not appear that the parties treated the present matter as a individual dispute only. Even before the recording of the evidence commenced the union was added as a party in the writ petition. The relief claimed in the complaint was the general relief for all. From the affidavits filed on record by the petitioner also it is clear that the management has given evidence with relation to all the workers and the general conditions regarding indiscipline, loss of production, etc. Moreover, such a point was neither raised before the Tribunal nor has been raised in the writ petition. Under the circumstances we do not think it would be proper to permit the writ petitioner to raise this point for the first time before us during the course of hearing, specially when even from paragraph 23 of the petition it is apparent that interim payment as ordered was made by the petitioner to all the workmen during the pendency of the complaint and the various figures supplied for that purpose also related to all the workers in general. Moreover, under the scheme of the Act it seems to us that not only in individual worker but an investigating officer can also file a complaint making a grievance generally about all workers.(17) THIS takes us to the next point regarding low production due toVoluminous evidence has been placed before the Tribunal in the form of oral as well as documentary evidence from which it does appear that the workers did indulge in acts of indiscipline, disorderly behaviour and even rowdisum. It also appears that they raised certain demands contrary to the settlement. It is possible that all these has contributed to the inefficiency and low production. While by no stretch of imagination what workers did in the factory can be justified, the basic question is whether the production had gone down only because of the attitude of the workers. The extent of that contribution cannot also be spelt out on the basis of material on record. The Industrial Tribunal has arrived at a finding of fact that the figures of production produced before related only to few departments and out of total 700 employees 116 were retrenched. The companys allotment of basic raw productaluminum was reduced from 7390 metric tones to 2038 and there had beenof even that allotted quantity. The Tribunal has also referred to certain inconsistent statements made by Shri Patil, the factory manager and under all these circumstances arrived at the finding of fact that burden of proof of justification for such drastic reduction of the wages and other emoluments. We do not think that we can call this appreciation of evidence perverse so as to attract interference under Art. 226 of the constitution, mainly because no oral evidence as such is adduced by theTribunal has given its decision in January, 1980 and affidavit of Shri madhu Holmagi the officer of the petitioner was filed in the Tribunal onthat is approximately after 7 months after the so called settlement. The settlement was admittedly not brought on record before the Tribunal nor any reference was made to it during the course of the hearing before the Tribunal. There is no reference to the settlement even in the present petition and under these circumstances it will be improper and unjust to take note of this so called settlement to which reference was made at the fag end of argument. Hence, it will not be proper to base our judgment on that aspect.
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K.C. LAXMANA Vs. K.C. CHANDRAPPA GOWDA & ANR | of the family. In the instant case, the alienation of the joint family property under Ex.P--1 was not with the consent of all the coparceners. It is settled law that where an alienation is not made with the consent of all the coparceners, it is voidable at the instance of the coparceners whose consent has not been obtained (See : Thimmaiah and Ors. Vs. Ningamma and Anr. (2000) 7 SCC 409) . Therefore, the alienation of the joint family property in favour of the second defendant was voidable at the instance of the plaintiff whose consent had not been obtained as a coparcener before the said alienation. 13. In the instant case, it is admitted by the second defendant that the settlement deed dated 22.03.1980 (Ex.P--1) is, in fact, a gift deed which was executed by the first defendant in favour of the second defendant out of love and affection and by virtue of which the second defendant was given a portion of the joint family property. It is well-settled that a Hindu father or any other managing member of a HUF has power to make a gift of ancestral property only for a pious purpose and what is understood by the term pious purpose is a gift for charitable and/or religious purpose. Therefore, a deed of gift in regard to the ancestral property executed out of love and affection does not come within the scope of the term pious purpose. It is irrelevant if such gift or settlement was made by a donor, i.e. the first defendant, in favour of a donee who was raised by the donor without any relationship, i.e. the second defendant. The gift deed in the instant case is not for any charitable or religious purpose. 14. This principle of law has been laid down by this Court in Guramma Bhratar Chanbasappa Deshmukh and Ors. vs. Mallappa Chanbasappa and Anr. AIR 1964 SC 510 , wherein it was held as follows: It may, therefore, be conceded that the expression pious purposes is wide enough, under certain circumstances, to take in charitable purposes though the scope of the latter purposes has nowhere been precisely drawn. But what we are concerned with in this case is the power of a manager to make a gift to an outsider of a joint family property. The scope of the limitations on that power has been fairly well settled by the decisions interpreting the relevant texts of Hindu law. The decisions of Hindu law sanctioned gifts to strangers by a manager of a joint Hindu family of a small extent of property for pious purposes. But no authority went so far, and none has been placed before us, to sustain such a gift to a stranger however much the donor was beholden to him on the ground that it was made out of charity. It must be remembered that the manager has no absolute power of disposal over joint Hindu family property. The Hindu law permits him to do so only within strict limits. We cannot extend the scope of the power on the basis of the wide interpretation give to the words pious purposes in Hindu law in a different context. In the circumstances, we hold that a gift to a stranger of a joint family property by the manager of the family is void. 15. In Ammathayi @ Perumalakkal and Anr. Vs. Kumaresan @ Balakrishnan and Ors. AIR 1967 SC 569 , this Court has reiterated the above position as under: 10. As to the contention that Rangaswami Chettiar was merely carrying his fathers wishes when he made this gift in favour of his wife and that act of his was a matter of pious obligation laid on him by his father, we are of opinion that no gift of ancestral immovable property can be made on such a ground. Even the father--in--law, if he had desired to make a gift at the time of the marriage of his daughter--in--law, would not be competent to do so insofar as immovable ancestral property is concerned. No case in support of the proposition that a father--in--law can make a gift of ancestral immovable property in favour of his daughter--in--law at the time of her marriage has been cited. There is in our opinion no authority to support such a proposition in Hindu law. As already observed, a Hindu father or any other managing member has power to make a gift within reasonable limits of ancestral immovable property for pious purposes, and we cannot see how a gift by the father--in--law to the daughter--in--law at the time of marriage can by any stretch of reasoning be called a pious purpose, whatever may be the position of a gift by the father or his representation to a daughter at the time of her marriage. One can understand such a gift being made to a daughter when she is leaving the family of her father. As it is the duty of the father or his representative to marry the daughter, such a gift may be and has been held by this Court to be for a pious purpose. But we see no pious purpose for such a gift by a father--in--law in favour of his daughter--in--law at the time of marriage. As a matter of fact the daughter--in--law becomes a member of the family of her father--in-law after marriage and she would be entitled after marriage in her own right to the ancestral immovable property in certain circumstances, and clearly therefore her case stands on a very different footing from the case of a daughter who is being married and to whom a reasonable gift of ancestral immovable property can be made as held by this Court. 16. In view of the above, we are of the view that the settlement deed/gift deed dated 22.03.1980 (Ex.P--1) executed by the first defendant in favour of the second defendant was rightly declared as null and void by the first Appellate Court and the High Court. | 0[ds]There is no dispute that the parties to the suit are Hindus and are governed by Mitkashara Law. The plaintiff has challenged the alienation made by his father-the first defendant, under Ex.P--1 which is a joint family property, in favour of the second defendant.8. Article 58 of the Second Schedule to the Limitation Act provides for the period of limitation to file a suit to obtain any other declaration. The period of limitation under this article is three years from the date when the right to sue first accrues. It is a residuary article governing all those suits for declaration which are not specifically governed by any other articles in the Limitation Act. Article 109 is the special Article to apply where the alienation of the father is challenged by the son and the property is ancestral and the parties are governed by Mitakshara law. Generally, where a statute contains both general provision as well as specific provision, the later must prevail. Therefore, Article 58 has no application to the instant case.10. In the instant case, Ex.P--1 was executed by the father of the plaintiff in favour of the second defendant on 02.03.1980 and the second defendant has taken possession of the property on 22.03.1980 when Ex.P--1 was registered. Counting the period of twelve years from 22.03.1980, the limitation for filing of the suit in the present case would have expired on 21.03.1992. The suit was filed on 11.10.1991. Therefore, the suit was not barred by time.As noticed above, the second defendant has adopted the written statement filed by the first defendant before the trial court wherein it was admitted that the schedule property was a joint family property belonging to the HUF consisting of the plaintiff, his father the second defendant and his brother one K.C. Subbaraya Gowda, all three of whom were coparceners in the HUF. The second defendant is not a coparcener or a member of this family. It was also admitted that the schedule property was gifted to him by the settlement/gift deed dated 22.03.1980 (Ex.P--1) by the first defendant who was the Karta of the HUF. The plaintiff was not a signatory to the said document. In fact, the plaintiff has categorically averred in the plaint that he did not consent to the gifting of the schedule property in favour of the second defendant vide the said deed.12. It is trite law that Karta/Manager of a joint family property may alienate joint family property only in three situations, namely, (i) legal necessity (ii) for the benefit of the estate and (iii) with the consent of all the coparceners of the family. In the instant case, the alienation of the joint family property under Ex.P--1 was not with the consent of all the coparceners. It is settled law that where an alienation is not made with the consent of all the coparceners, it is voidable at the instance of the coparceners whose consent has not been obtained (See : Thimmaiah and Ors. Vs. Ningamma and Anr. (2000) 7 SCC 409) . Therefore, the alienation of the joint family property in favour of the second defendant was voidable at the instance of the plaintiff whose consent had not been obtained as a coparcener before the said alienation.13. In the instant case, it is admitted by the second defendant that the settlement deed dated 22.03.1980 (Ex.P--1) is, in fact, a gift deed which was executed by the first defendant in favour of the second defendant out of love and affection and by virtue of which the second defendant was given a portion of the joint family property. It is well-settled that a Hindu father or any other managing member of a HUF has power to make a gift of ancestral property only for a pious purpose and what is understood by the term pious purpose is a gift for charitable and/or religious purpose. Therefore, a deed of gift in regard to the ancestral property executed out of love and affection does not come within the scope of the term pious purpose. It is irrelevant if such gift or settlement was made by a donor, i.e. the first defendant, in favour of a donee who was raised by the donor without any relationship, i.e. the second defendant. The gift deed in the instant case is not for any charitable or religious purpose.14. This principle of law has been laid down by this Court in Guramma Bhratar Chanbasappa Deshmukh and Ors. vs. Mallappa Chanbasappa and Anr. AIR 1964 SC 510 , wherein it was held as follows:It may, therefore, be conceded that the expression pious purposes is wide enough, under certain circumstances, to take in charitable purposes though the scope of the latter purposes has nowhere been precisely drawn. But what we are concerned with in this case is the power of a manager to make a gift to an outsider of a joint family property. The scope of the limitations on that power has been fairly well settled by the decisions interpreting the relevant texts of Hindu law. The decisions of Hindu law sanctioned gifts to strangers by a manager of a joint Hindu family of a small extent of property for pious purposes. But no authority went so far, and none has been placed before us, to sustain such a gift to a stranger however much the donor was beholden to him on the ground that it was made out of charity. It must be remembered that the manager has no absolute power of disposal over joint Hindu family property. The Hindu law permits him to do so only within strict limits. We cannot extend the scope of the power on the basis of the wide interpretation give to the words pious purposes in Hindu law in a different context. In the circumstances, we hold that a gift to a stranger of a joint family property by the manager of the family is void.15. In Ammathayi @ Perumalakkal and Anr. Vs. Kumaresan @ Balakrishnan and Ors. AIR 1967 SC 569 , this Court has reiterated the above position as under:10. As to the contention that Rangaswami Chettiar was merely carrying his fathers wishes when he made this gift in favour of his wife and that act of his was a matter of pious obligation laid on him by his father, we are of opinion that no gift of ancestral immovable property can be made on such a ground. Even the father--in--law, if he had desired to make a gift at the time of the marriage of his daughter--in--law, would not be competent to do so insofar as immovable ancestral property is concerned. No case in support of the proposition that a father--in--law can make a gift of ancestral immovable property in favour of his daughter--in--law at the time of her marriage has been cited. There is in our opinion no authority to support such a proposition in Hindu law. As already observed, a Hindu father or any other managing member has power to make a gift within reasonable limits of ancestral immovable property for pious purposes, and we cannot see how a gift by the father--in--law to the daughter--in--law at the time of marriage can by any stretch of reasoning be called a pious purpose, whatever may be the position of a gift by the father or his representation to a daughter at the time of her marriage. One can understand such a gift being made to a daughter when she is leaving the family of her father. As it is the duty of the father or his representative to marry the daughter, such a gift may be and has been held by this Court to be for a pious purpose. But we see no pious purpose for such a gift by a father--in--law in favour of his daughter--in--law at the time of marriage. As a matter of fact the daughter--in--law becomes a member of the family of her father--in-law after marriage and she would be entitled after marriage in her own right to the ancestral immovable property in certain circumstances, and clearly therefore her case stands on a very different footing from the case of a daughter who is being married and to whom a reasonable gift of ancestral immovable property can be made as held by this Court.16. In view of the above, we are of the view that the settlement deed/gift deed dated 22.03.1980 (Ex.P--1) executed by the first defendant in favour of the second defendant was rightly declared as null and void by the first Appellate Court and the High Court. | 0 | 2,529 | 1,596 | ### Instruction:
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of the family. In the instant case, the alienation of the joint family property under Ex.P--1 was not with the consent of all the coparceners. It is settled law that where an alienation is not made with the consent of all the coparceners, it is voidable at the instance of the coparceners whose consent has not been obtained (See : Thimmaiah and Ors. Vs. Ningamma and Anr. (2000) 7 SCC 409) . Therefore, the alienation of the joint family property in favour of the second defendant was voidable at the instance of the plaintiff whose consent had not been obtained as a coparcener before the said alienation. 13. In the instant case, it is admitted by the second defendant that the settlement deed dated 22.03.1980 (Ex.P--1) is, in fact, a gift deed which was executed by the first defendant in favour of the second defendant out of love and affection and by virtue of which the second defendant was given a portion of the joint family property. It is well-settled that a Hindu father or any other managing member of a HUF has power to make a gift of ancestral property only for a pious purpose and what is understood by the term pious purpose is a gift for charitable and/or religious purpose. Therefore, a deed of gift in regard to the ancestral property executed out of love and affection does not come within the scope of the term pious purpose. It is irrelevant if such gift or settlement was made by a donor, i.e. the first defendant, in favour of a donee who was raised by the donor without any relationship, i.e. the second defendant. The gift deed in the instant case is not for any charitable or religious purpose. 14. This principle of law has been laid down by this Court in Guramma Bhratar Chanbasappa Deshmukh and Ors. vs. Mallappa Chanbasappa and Anr. AIR 1964 SC 510 , wherein it was held as follows: It may, therefore, be conceded that the expression pious purposes is wide enough, under certain circumstances, to take in charitable purposes though the scope of the latter purposes has nowhere been precisely drawn. But what we are concerned with in this case is the power of a manager to make a gift to an outsider of a joint family property. The scope of the limitations on that power has been fairly well settled by the decisions interpreting the relevant texts of Hindu law. The decisions of Hindu law sanctioned gifts to strangers by a manager of a joint Hindu family of a small extent of property for pious purposes. But no authority went so far, and none has been placed before us, to sustain such a gift to a stranger however much the donor was beholden to him on the ground that it was made out of charity. It must be remembered that the manager has no absolute power of disposal over joint Hindu family property. The Hindu law permits him to do so only within strict limits. We cannot extend the scope of the power on the basis of the wide interpretation give to the words pious purposes in Hindu law in a different context. In the circumstances, we hold that a gift to a stranger of a joint family property by the manager of the family is void. 15. In Ammathayi @ Perumalakkal and Anr. Vs. Kumaresan @ Balakrishnan and Ors. AIR 1967 SC 569 , this Court has reiterated the above position as under: 10. As to the contention that Rangaswami Chettiar was merely carrying his fathers wishes when he made this gift in favour of his wife and that act of his was a matter of pious obligation laid on him by his father, we are of opinion that no gift of ancestral immovable property can be made on such a ground. Even the father--in--law, if he had desired to make a gift at the time of the marriage of his daughter--in--law, would not be competent to do so insofar as immovable ancestral property is concerned. No case in support of the proposition that a father--in--law can make a gift of ancestral immovable property in favour of his daughter--in--law at the time of her marriage has been cited. There is in our opinion no authority to support such a proposition in Hindu law. As already observed, a Hindu father or any other managing member has power to make a gift within reasonable limits of ancestral immovable property for pious purposes, and we cannot see how a gift by the father--in--law to the daughter--in--law at the time of marriage can by any stretch of reasoning be called a pious purpose, whatever may be the position of a gift by the father or his representation to a daughter at the time of her marriage. One can understand such a gift being made to a daughter when she is leaving the family of her father. As it is the duty of the father or his representative to marry the daughter, such a gift may be and has been held by this Court to be for a pious purpose. But we see no pious purpose for such a gift by a father--in--law in favour of his daughter--in--law at the time of marriage. As a matter of fact the daughter--in--law becomes a member of the family of her father--in-law after marriage and she would be entitled after marriage in her own right to the ancestral immovable property in certain circumstances, and clearly therefore her case stands on a very different footing from the case of a daughter who is being married and to whom a reasonable gift of ancestral immovable property can be made as held by this Court. 16. In view of the above, we are of the view that the settlement deed/gift deed dated 22.03.1980 (Ex.P--1) executed by the first defendant in favour of the second defendant was rightly declared as null and void by the first Appellate Court and the High Court.
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the consent of all the coparceners of the family. In the instant case, the alienation of the joint family property under Ex.P--1 was not with the consent of all the coparceners. It is settled law that where an alienation is not made with the consent of all the coparceners, it is voidable at the instance of the coparceners whose consent has not been obtained (See : Thimmaiah and Ors. Vs. Ningamma and Anr. (2000) 7 SCC 409) . Therefore, the alienation of the joint family property in favour of the second defendant was voidable at the instance of the plaintiff whose consent had not been obtained as a coparcener before the said alienation.13. In the instant case, it is admitted by the second defendant that the settlement deed dated 22.03.1980 (Ex.P--1) is, in fact, a gift deed which was executed by the first defendant in favour of the second defendant out of love and affection and by virtue of which the second defendant was given a portion of the joint family property. It is well-settled that a Hindu father or any other managing member of a HUF has power to make a gift of ancestral property only for a pious purpose and what is understood by the term pious purpose is a gift for charitable and/or religious purpose. Therefore, a deed of gift in regard to the ancestral property executed out of love and affection does not come within the scope of the term pious purpose. It is irrelevant if such gift or settlement was made by a donor, i.e. the first defendant, in favour of a donee who was raised by the donor without any relationship, i.e. the second defendant. The gift deed in the instant case is not for any charitable or religious purpose.14. This principle of law has been laid down by this Court in Guramma Bhratar Chanbasappa Deshmukh and Ors. vs. Mallappa Chanbasappa and Anr. AIR 1964 SC 510 , wherein it was held as follows:It may, therefore, be conceded that the expression pious purposes is wide enough, under certain circumstances, to take in charitable purposes though the scope of the latter purposes has nowhere been precisely drawn. But what we are concerned with in this case is the power of a manager to make a gift to an outsider of a joint family property. The scope of the limitations on that power has been fairly well settled by the decisions interpreting the relevant texts of Hindu law. The decisions of Hindu law sanctioned gifts to strangers by a manager of a joint Hindu family of a small extent of property for pious purposes. But no authority went so far, and none has been placed before us, to sustain such a gift to a stranger however much the donor was beholden to him on the ground that it was made out of charity. It must be remembered that the manager has no absolute power of disposal over joint Hindu family property. The Hindu law permits him to do so only within strict limits. We cannot extend the scope of the power on the basis of the wide interpretation give to the words pious purposes in Hindu law in a different context. In the circumstances, we hold that a gift to a stranger of a joint family property by the manager of the family is void.15. In Ammathayi @ Perumalakkal and Anr. Vs. Kumaresan @ Balakrishnan and Ors. AIR 1967 SC 569 , this Court has reiterated the above position as under:10. As to the contention that Rangaswami Chettiar was merely carrying his fathers wishes when he made this gift in favour of his wife and that act of his was a matter of pious obligation laid on him by his father, we are of opinion that no gift of ancestral immovable property can be made on such a ground. Even the father--in--law, if he had desired to make a gift at the time of the marriage of his daughter--in--law, would not be competent to do so insofar as immovable ancestral property is concerned. No case in support of the proposition that a father--in--law can make a gift of ancestral immovable property in favour of his daughter--in--law at the time of her marriage has been cited. There is in our opinion no authority to support such a proposition in Hindu law. As already observed, a Hindu father or any other managing member has power to make a gift within reasonable limits of ancestral immovable property for pious purposes, and we cannot see how a gift by the father--in--law to the daughter--in--law at the time of marriage can by any stretch of reasoning be called a pious purpose, whatever may be the position of a gift by the father or his representation to a daughter at the time of her marriage. One can understand such a gift being made to a daughter when she is leaving the family of her father. As it is the duty of the father or his representative to marry the daughter, such a gift may be and has been held by this Court to be for a pious purpose. But we see no pious purpose for such a gift by a father--in--law in favour of his daughter--in--law at the time of marriage. As a matter of fact the daughter--in--law becomes a member of the family of her father--in-law after marriage and she would be entitled after marriage in her own right to the ancestral immovable property in certain circumstances, and clearly therefore her case stands on a very different footing from the case of a daughter who is being married and to whom a reasonable gift of ancestral immovable property can be made as held by this Court.16. In view of the above, we are of the view that the settlement deed/gift deed dated 22.03.1980 (Ex.P--1) executed by the first defendant in favour of the second defendant was rightly declared as null and void by the first Appellate Court and the High Court.
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The State of Maharashtra Vs. Shri Vile Parle Kelvani Mandal & Ors | the facts of the case on hand in view of the specific provisions providing for exemption from payment of the electricity duty as per sub-section (2) of Section 3 of the 2016 Act. Therefore, for the purpose of exemption from payment of electricity duty on and after 01.09.2016, sub- section (2) of Section 3 of the 2016 Act shall have to be applied and shall be applicable. 11.2 As per sub-section (2) of Section 3 of the 1958 Act, the electricity duty was not leviable on the consumption charges or the units of energy consumed…………..by or in respect of charitable institution registered under the Bombay Public Trusts Act, 1950, for the purpose of, or in respect of, school or college imparting education or training in academic or technical subjects (save in respect of premises used for residential purposes) [Section 3(2)(iiia)]. Therefore, under the 1958 Act, the electricity duty was not leviable on the consumption charges or the units of energy consumed by or in respect of charitable institutions for the purpose; in respect of school or college imparting education or training in academic or technical subjects. Even as per Section 3(2)(ia), electricity duty shall not be leviable on the consumption charges or the units of energy consumed by or in a respect of any municipal corporation, municipality, municipal committee, town committee, notified area committee, Cantonment Board, Zilla Parishad or village panchyat constituted under any law for the time being in force in the State, for the purpose of, or in respect of a school or college imparting education or training in academic or technical subjects, a hospital, nursing home, dispensary, clinic, public street lighting, public water works and system of public sewers or drains (save in respect of premises used for residential purposes. 11.3 However, there are material changes under the 2016 Act. As per Section 3(2) of the 2016 Act, even the public undertakings are liable to pay the electricity duty. As per Section 3(2)(iii), electricity duty is not leviable on the consumption charges or energy consumed, for the purposes of, or in respect of a school or college or institution imparting education or training, students, hostels, hospitals, nursing homes, dispensaries, clinics, public streets lighting, public water works, sewerage systems, public gardens including zoos, public museums, administrative offices forming whole or, as the case may be, a part of system run by any local bodies constituted under any law for the time being in force in the State of Maharashtra. Therefore, Section 3(2)(iiia), which was there in 1958 Act, is now conspicuously and deliberately absent in Section 3(2) of the 2016 Act. 11.4 On true interpretation of Section 3(2)(iii), under 2016 Act, electricity duty on the consumption of charges or energy consumed for the purposes of, or in respect of a school or college or institution imparting education or training, students, hostels………….run by any local bodies shall alone be exempted from levy of electricity duty and the State Government and Central Government are also specifically excluded from payment of electricity duty. However, the public sector undertakings are not exempted from payment of electricity Act. Therefore, under Section 3(2) of the 2016 Act, the charitable institutions running the educational institutions are not exempted from payment of electricity duty, which as such was specifically exempted under Section 3(2)(iiia) of the 1958 Act. The language and words used in Section 3(2) are plain and simple and are capable of only one definite meaning that there is no exemption provided under the 2016 Act from levy of electricity duty so far as the charitable education institutions are concerned. As observed herein above, where the words are clear and unambiguous, recourse cannot be had to principles of interpretation other than the literal view. As observed hereinabove, the exemption provision need to be interpreted literally and when the language used in exemption provision is simple, clear and unambiguous, the same has to be applied rigorously, strictly and literally. Under the 2016 Act, charitable education institutions running the schools or colleges are specifically excluded from the exemption clause/exemption provision – Section 3(2). 12. If the submissions on behalf of the original writ petitioners is accepted that as per Section 3(2)(iii), with respect to all the schools/colleges or institutions, imparting education or training, the electricity duty is not leviable, in that case it would lead to absurd result. In that case, even the private hospitals, nursing homes, dispensaries and clinics, who are profit making entities shall also claim the exemption from levy of electricity duty. The intention of the legislature as per Section 3(2) of the 2016 Act, is very clear and unambiguous that the electricity duty shall not be leviable on the consumption charges or energy consumed (i) by the State Government excluding the public sector undertakings; (ii) by the Central Government excluding public sector undertakings and (iii) ……. run by the local bodies constituted under any law for the time being in force in the State of Maharashtra. Other than the State Government, Central Government and the local bodies and the Government hostels, no exemption from payment of electricity duty has been provided. 13. In view of the above findings recorded hereinabove, there is no question of applying the doctrine of Last Antecedents as canvassed by Shri Naphade, learned Senior Advocate, appearing on behalf of the original writ petitioners. 14. In that view of the above the original writ petitioners – charitable education institutions registered under the provisions of the Societies Registration Act and/or under the Maharashtra Public Trusts Act, are not entitled to any exemption from levy/payment of the electricity duty on or after 08.08.2016 i.e. from the date on which the Maharashtra Electricity Duty Act, 2016 came into effect. Therefore, the High Court has committed a grave error in setting aside the levy of electricity duty levied on the original writ petitioners – respondents No.1 to 10 herein. The impugned judgment and order passed by the High Court is unsustainable both, on law and on facts and the same deserves to be dismissed. | 1[ds]9.1 In the case of Dilip Kumar & Company (supra), five-judge bench of this Court has held that in every taxing statute –– the charging, the computation and exemption provisions at the threshold stage should be interpreted strictly. In case of ambiguity in case of charging provision, the benefit necessarily must go into favour of the subject/assessee. This means that the subject of tax, the person liable to pay tax and the rate at which the tax is to be levied have to be interpreted and construed strictly. If there is any ambiguity in any of these three components, no tax can be levied till the ambiguity or defect was removed by the legislature [See pages 53 to 55 in Dilip Kumar & Company]. However, in case of exemption notification or clause, same is to be allowed based wholly by the language of the notification, and exemption cannot be gathered by necessary implication, or on a construction different from the words used by reference to the object and purpose of granting exemption [See Hansraj Gordhandas Vs. H.H. Dave, Assistant Collector of Central Excise Customs, Surat & Ors., AIR 1970 SC 755 ]. Further its for the assessee to show by construction of the exemption clause/notification that it comes within the purview of exemption. The assessee/citizen cannot rely on ambiguity or doubt to claim benefit of exemption. The rationale is not to widen the ambit at the stage of applicability. However, once the hurdle is crossed, the notification is constructed liberally [See Collector of Central Excise, Bombay-I & Anr. vs. Parle Exports (P) Ltd., (1989) 1 SCC 345 and Union of India & Ors. vs. Wood Papers Ltd. & Anr., (1998) 4 SCC 256] . Thus, distinction can be made between the substantive requirements that require strict compliance – non-compliance of which would render the assessee ineligible to claim exemption, and the procedural or compliance provision which can be interpreted liberally [See paragraphs 64 to 65 in Dilip Kumar & Company].9.4 In the case of Giridhar G. Yadalam (supra), it is observed and held that in taxing statute, it is the plain language of the provision that has to be preferred where language is plain and is capable of one definite meaning. It is further observed that the strict interpretation to the exemption provision is to be accorded. It is observed that the purposive interpretation can be given only when there is some ambiguity in the language of the statutory provision or it leads to absurd results. In paragraph 16, it is observed and held as under:-16. We have already pointed out that on the plain language of the provision in question, the benefit of the said clause would be applicable only in respect of the building which has been constructed. The expression has been constructed obviously cannot include within its sweep a building which is not fully constructed or in the process of construction. The opening words of clause (ii) also become important in this behalf, where it is stated that the land occupied by any building. The land cannot be treated to be occupied by a building where it is still under construction. If the contention of Mr Jain is accepted, an assessee would become entitled to the benefit of the said clause, at that very moment, the commencement of construction even with construction the moment one brick is laid. It would be too far-fetched, in such a situation, to say that the land stands occupied by a building that has been constructed thereon. Even Mr Jain was candid in accepting that when the construction of building is still going on and is not completed, literally speaking, it cannot be said that the building has been constructed. It is for this reason that he wanted us to give the benefit of this provision even in such cases by reading the expression to mean the same as is being constructed. His submission was that the moment construction starts the urban land is put to productive use and that entitles the land from exemption of wealth tax. This argument of giving so-called purposive interpretation has to be rejected for more than one reasons. These are:(i) In taxing statute, it is the plain language of the provision that has to be preferred where language is plain and is capable of one definite meaning.(ii) Strict interpretation to the exemption provision is to be accorded, which is the case at hand.(iii) The purposive interpretation can be given only when there is some ambiguity in the language of the statutory provision or it leads to absurd results. We do not find it to be so in the present case.9.5 In the case of Godrej & Boyce Mfg. Co. Ltd. (supra), it is observed and held by this Court that where the words of the statute are clear and unambiguous, recourse cannot be had to principles of interpretation other than the literal view. It is further observed that it is the bounden duty and obligation of the court to interpret the statute as it is. It is further observed that it is contrary to all rules of construction to read words into a statute which the legislature in its wisdom has deliberately not incorporated.11.1 As per Section 16 of the 2016 Act, on coming into force the 2016 Act, the Maharashtra Electricity Duty Act, 1958 stood repealed subject to the eventualities mentioned in Section 16 of the 2016 Act. None of the eventuality mentioned in proviso to Section 16 shall be attracted and/or applicable to the facts of the case on hand in view of the specific provisions providing for exemption from payment of the electricity duty as per sub-section (2) of Section 3 of the 2016 Act. Therefore, for the purpose of exemption from payment of electricity duty on and after 01.09.2016, sub- section (2) of Section 3 of the 2016 Act shall have to be applied and shall be applicable.11.4 On true interpretation of Section 3(2)(iii), under 2016 Act, electricity duty on the consumption of charges or energy consumed for the purposes of, or in respect of a school or college or institution imparting education or training, students, hostels………….run by any local bodies shall alone be exempted from levy of electricity duty and the State Government and Central Government are also specifically excluded from payment of electricity duty. However, the public sector undertakings are not exempted from payment of electricity Act. Therefore, under Section 3(2) of the 2016 Act, the charitable institutions running the educational institutions are not exempted from payment of electricity duty, which as such was specifically exempted under Section 3(2)(iiia) of the 1958 Act. The language and words used in Section 3(2) are plain and simple and are capable of only one definite meaning that there is no exemption provided under the 2016 Act from levy of electricity duty so far as the charitable education institutions are concerned. As observed herein above, where the words are clear and unambiguous, recourse cannot be had to principles of interpretation other than the literal view. As observed hereinabove, the exemption provision need to be interpreted literally and when the language used in exemption provision is simple, clear and unambiguous, the same has to be applied rigorously, strictly and literally. Under the 2016 Act, charitable education institutions running the schools or colleges are specifically excluded from the exemption clause/exemption provision – Section 3(2).12. If the submissions on behalf of the original writ petitioners is accepted that as per Section 3(2)(iii), with respect to all the schools/colleges or institutions, imparting education or training, the electricity duty is not leviable, in that case it would lead to absurd result. In that case, even the private hospitals, nursing homes, dispensaries and clinics, who are profit making entities shall also claim the exemption from levy of electricity duty. The intention of the legislature as per Section 3(2) of the 2016 Act, is very clear and unambiguous that the electricity duty shall not be leviable on the consumption charges or energy consumed (i) by the State Government excluding the public sector undertakings; (ii) by the Central Government excluding public sector undertakings and (iii) ……. run by the local bodies constituted under any law for the time being in force in the State of Maharashtra. Other than the State Government, Central Government and the local bodies and the Government hostels, no exemption from payment of electricity duty has been provided.13. In view of the above findings recorded hereinabove, there is no question of applying the doctrine of Last Antecedents as canvassed by Shri Naphade, learned Senior Advocate, appearing on behalf of the original writ petitioners.14. In that view of the above the original writ petitioners – charitable education institutions registered under the provisions of the Societies Registration Act and/or under the Maharashtra Public Trusts Act, are not entitled to any exemption from levy/payment of the electricity duty on or after 08.08.2016 i.e. from the date on which the Maharashtra Electricity Duty Act, 2016 came into effect. Therefore, the High Court has committed a grave error in setting aside the levy of electricity duty levied on the original writ petitioners – respondents No.1 to 10 herein. The impugned judgment and order passed by the High Court is unsustainable both, on law and on facts and the same deserves to be dismissed. | 1 | 7,454 | 1,760 | ### Instruction:
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the facts of the case on hand in view of the specific provisions providing for exemption from payment of the electricity duty as per sub-section (2) of Section 3 of the 2016 Act. Therefore, for the purpose of exemption from payment of electricity duty on and after 01.09.2016, sub- section (2) of Section 3 of the 2016 Act shall have to be applied and shall be applicable. 11.2 As per sub-section (2) of Section 3 of the 1958 Act, the electricity duty was not leviable on the consumption charges or the units of energy consumed…………..by or in respect of charitable institution registered under the Bombay Public Trusts Act, 1950, for the purpose of, or in respect of, school or college imparting education or training in academic or technical subjects (save in respect of premises used for residential purposes) [Section 3(2)(iiia)]. Therefore, under the 1958 Act, the electricity duty was not leviable on the consumption charges or the units of energy consumed by or in respect of charitable institutions for the purpose; in respect of school or college imparting education or training in academic or technical subjects. Even as per Section 3(2)(ia), electricity duty shall not be leviable on the consumption charges or the units of energy consumed by or in a respect of any municipal corporation, municipality, municipal committee, town committee, notified area committee, Cantonment Board, Zilla Parishad or village panchyat constituted under any law for the time being in force in the State, for the purpose of, or in respect of a school or college imparting education or training in academic or technical subjects, a hospital, nursing home, dispensary, clinic, public street lighting, public water works and system of public sewers or drains (save in respect of premises used for residential purposes. 11.3 However, there are material changes under the 2016 Act. As per Section 3(2) of the 2016 Act, even the public undertakings are liable to pay the electricity duty. As per Section 3(2)(iii), electricity duty is not leviable on the consumption charges or energy consumed, for the purposes of, or in respect of a school or college or institution imparting education or training, students, hostels, hospitals, nursing homes, dispensaries, clinics, public streets lighting, public water works, sewerage systems, public gardens including zoos, public museums, administrative offices forming whole or, as the case may be, a part of system run by any local bodies constituted under any law for the time being in force in the State of Maharashtra. Therefore, Section 3(2)(iiia), which was there in 1958 Act, is now conspicuously and deliberately absent in Section 3(2) of the 2016 Act. 11.4 On true interpretation of Section 3(2)(iii), under 2016 Act, electricity duty on the consumption of charges or energy consumed for the purposes of, or in respect of a school or college or institution imparting education or training, students, hostels………….run by any local bodies shall alone be exempted from levy of electricity duty and the State Government and Central Government are also specifically excluded from payment of electricity duty. However, the public sector undertakings are not exempted from payment of electricity Act. Therefore, under Section 3(2) of the 2016 Act, the charitable institutions running the educational institutions are not exempted from payment of electricity duty, which as such was specifically exempted under Section 3(2)(iiia) of the 1958 Act. The language and words used in Section 3(2) are plain and simple and are capable of only one definite meaning that there is no exemption provided under the 2016 Act from levy of electricity duty so far as the charitable education institutions are concerned. As observed herein above, where the words are clear and unambiguous, recourse cannot be had to principles of interpretation other than the literal view. As observed hereinabove, the exemption provision need to be interpreted literally and when the language used in exemption provision is simple, clear and unambiguous, the same has to be applied rigorously, strictly and literally. Under the 2016 Act, charitable education institutions running the schools or colleges are specifically excluded from the exemption clause/exemption provision – Section 3(2). 12. If the submissions on behalf of the original writ petitioners is accepted that as per Section 3(2)(iii), with respect to all the schools/colleges or institutions, imparting education or training, the electricity duty is not leviable, in that case it would lead to absurd result. In that case, even the private hospitals, nursing homes, dispensaries and clinics, who are profit making entities shall also claim the exemption from levy of electricity duty. The intention of the legislature as per Section 3(2) of the 2016 Act, is very clear and unambiguous that the electricity duty shall not be leviable on the consumption charges or energy consumed (i) by the State Government excluding the public sector undertakings; (ii) by the Central Government excluding public sector undertakings and (iii) ……. run by the local bodies constituted under any law for the time being in force in the State of Maharashtra. Other than the State Government, Central Government and the local bodies and the Government hostels, no exemption from payment of electricity duty has been provided. 13. In view of the above findings recorded hereinabove, there is no question of applying the doctrine of Last Antecedents as canvassed by Shri Naphade, learned Senior Advocate, appearing on behalf of the original writ petitioners. 14. In that view of the above the original writ petitioners – charitable education institutions registered under the provisions of the Societies Registration Act and/or under the Maharashtra Public Trusts Act, are not entitled to any exemption from levy/payment of the electricity duty on or after 08.08.2016 i.e. from the date on which the Maharashtra Electricity Duty Act, 2016 came into effect. Therefore, the High Court has committed a grave error in setting aside the levy of electricity duty levied on the original writ petitioners – respondents No.1 to 10 herein. The impugned judgment and order passed by the High Court is unsustainable both, on law and on facts and the same deserves to be dismissed.
### Response:
1
### Explanation:
commencement of construction even with construction the moment one brick is laid. It would be too far-fetched, in such a situation, to say that the land stands occupied by a building that has been constructed thereon. Even Mr Jain was candid in accepting that when the construction of building is still going on and is not completed, literally speaking, it cannot be said that the building has been constructed. It is for this reason that he wanted us to give the benefit of this provision even in such cases by reading the expression to mean the same as is being constructed. His submission was that the moment construction starts the urban land is put to productive use and that entitles the land from exemption of wealth tax. This argument of giving so-called purposive interpretation has to be rejected for more than one reasons. These are:(i) In taxing statute, it is the plain language of the provision that has to be preferred where language is plain and is capable of one definite meaning.(ii) Strict interpretation to the exemption provision is to be accorded, which is the case at hand.(iii) The purposive interpretation can be given only when there is some ambiguity in the language of the statutory provision or it leads to absurd results. We do not find it to be so in the present case.9.5 In the case of Godrej & Boyce Mfg. Co. Ltd. (supra), it is observed and held by this Court that where the words of the statute are clear and unambiguous, recourse cannot be had to principles of interpretation other than the literal view. It is further observed that it is the bounden duty and obligation of the court to interpret the statute as it is. It is further observed that it is contrary to all rules of construction to read words into a statute which the legislature in its wisdom has deliberately not incorporated.11.1 As per Section 16 of the 2016 Act, on coming into force the 2016 Act, the Maharashtra Electricity Duty Act, 1958 stood repealed subject to the eventualities mentioned in Section 16 of the 2016 Act. None of the eventuality mentioned in proviso to Section 16 shall be attracted and/or applicable to the facts of the case on hand in view of the specific provisions providing for exemption from payment of the electricity duty as per sub-section (2) of Section 3 of the 2016 Act. Therefore, for the purpose of exemption from payment of electricity duty on and after 01.09.2016, sub- section (2) of Section 3 of the 2016 Act shall have to be applied and shall be applicable.11.4 On true interpretation of Section 3(2)(iii), under 2016 Act, electricity duty on the consumption of charges or energy consumed for the purposes of, or in respect of a school or college or institution imparting education or training, students, hostels………….run by any local bodies shall alone be exempted from levy of electricity duty and the State Government and Central Government are also specifically excluded from payment of electricity duty. However, the public sector undertakings are not exempted from payment of electricity Act. Therefore, under Section 3(2) of the 2016 Act, the charitable institutions running the educational institutions are not exempted from payment of electricity duty, which as such was specifically exempted under Section 3(2)(iiia) of the 1958 Act. The language and words used in Section 3(2) are plain and simple and are capable of only one definite meaning that there is no exemption provided under the 2016 Act from levy of electricity duty so far as the charitable education institutions are concerned. As observed herein above, where the words are clear and unambiguous, recourse cannot be had to principles of interpretation other than the literal view. As observed hereinabove, the exemption provision need to be interpreted literally and when the language used in exemption provision is simple, clear and unambiguous, the same has to be applied rigorously, strictly and literally. Under the 2016 Act, charitable education institutions running the schools or colleges are specifically excluded from the exemption clause/exemption provision – Section 3(2).12. If the submissions on behalf of the original writ petitioners is accepted that as per Section 3(2)(iii), with respect to all the schools/colleges or institutions, imparting education or training, the electricity duty is not leviable, in that case it would lead to absurd result. In that case, even the private hospitals, nursing homes, dispensaries and clinics, who are profit making entities shall also claim the exemption from levy of electricity duty. The intention of the legislature as per Section 3(2) of the 2016 Act, is very clear and unambiguous that the electricity duty shall not be leviable on the consumption charges or energy consumed (i) by the State Government excluding the public sector undertakings; (ii) by the Central Government excluding public sector undertakings and (iii) ……. run by the local bodies constituted under any law for the time being in force in the State of Maharashtra. Other than the State Government, Central Government and the local bodies and the Government hostels, no exemption from payment of electricity duty has been provided.13. In view of the above findings recorded hereinabove, there is no question of applying the doctrine of Last Antecedents as canvassed by Shri Naphade, learned Senior Advocate, appearing on behalf of the original writ petitioners.14. In that view of the above the original writ petitioners – charitable education institutions registered under the provisions of the Societies Registration Act and/or under the Maharashtra Public Trusts Act, are not entitled to any exemption from levy/payment of the electricity duty on or after 08.08.2016 i.e. from the date on which the Maharashtra Electricity Duty Act, 2016 came into effect. Therefore, the High Court has committed a grave error in setting aside the levy of electricity duty levied on the original writ petitioners – respondents No.1 to 10 herein. The impugned judgment and order passed by the High Court is unsustainable both, on law and on facts and the same deserves to be dismissed.
|
Amalendu Ghosh Vs. District Traffic Superintendent North Eastern Railway, Katihar | 1957, he was served with an order reducing him to the rank of Signaller. The validity of this order was challenged by him by a writ petition filed in the High Court of Judicature at Patna on July 3, 1957. The High Court, however, summarily rejected the said petition on July 4, 1957. The appellants application for a certificate under Arts. 132 (1) and 133 (1) (c) of the Constitution was likewise rejected by the High Court. Thereupon the appellant applied for and obtained special leave from this Court. The appellants grievance is that the impugned order has been passed against him without giving him an opportunity to meet the charge as required by Art. 311 of the Constitution. This contention appears to be well-founded; and so the appeal will have to be allowed. It appears that the material facts under which the impugned order came to be passed were not properly brought to the notice of the High Court; otherwise the High Court would not have summarily dismissed the appellants petition. 2. On June 9, 1956, there was a collision between the train engine of 313 Down and a bullock cart as a result of which the cartman died though the buffaloes drawing the cart were not hurt. A departmental enquiry was held into this accident as required by the statute, and as a result of this enquiry it was found that "the accident was due to not locking with chain the level crossing gate between Up, Outer and Home at Rawtara in front of an in-coming train (313 Dn.)". The committee which held the enquiry came to the conclusion that the accident was due to the violation of G. S. R. 229/5 by both the appellant and the pointsman Shri Raghunath Koori. On July 26, 1956, the appellant was served with a notice calling upon him to show cause by written explanation within seven days why the penalty specified in item 1702 (5) or any lesser penalty specified in the said list should not be imposed on him. On receipt of this notice the appellant complained that he had been given no opportunity to meet the charge, that he was innocent and had committed no misconduct and he prayed that local witnesses should be examined. He also referred to the fact that soon after the accident took place the local police officer had made an investigation and his report showed that the appellant was not responsible for the accident. It appears that no subsequent enquiry was held nor was any opportunity given to the appellant to show cause in respect of the charge that he was responsible for the accident. Ultimately on January 9, 1957, the impugned order was passed against him. The appellant appealed against the said order but his appeal failed. It is on these facts that the validity of the said order is challenged by the appellant. 3. It is obvious that the enquiry into the accident which was held by the statutory committee was not directed against the appellant as such. It was an enquiry held as is always done in cases of accident to find out who was responsible for the accident. In this enquiry the appellant gave evidence and so did other witnesses. It does appear that the committee held that the statements made by the appellant in support of the pointsman were not true and that along with the pointsman the appellant was also negligent in the discharge of his duties. Incidentally it may be pointed out that the first part of the finding which is signed by Mr. Basu, the President of the Enquiry Committee, seems to hold only the pointsman responsible for the accident, though in the latter part the appellant and the pointsman both are held responsible.There is some substance in the grievance made by the appellant that it is not clear from the record when the latter part of the finding was added to the report. But, apart from this aspect of the matter there can be no doubt that it is as a result of this departmental enquiry into the accident that occasion arose to take action against the appellant; and it was obviously necessary that he should have been given a chance to show his innocence by holding an enquiry in respect of the charge that he was responsible for the accident. The findings reached by the enquiry committee as a result of the statutory enquiry cannot be said to be findings made against the appellant in a departmental enquiry made against him for alleged neglect of duty or violation of the statutory rules.This position is fairly conceded before us by Mr. Ganapathi Iyer, and indeed it is patent on the record that, before issuing notice calling upon the appellant to show cause why the proposed penalty should not be imposed on him, no enquiry into the alleged misconduct had really been held. It may be that the authorities concerned took the view that the departmental enquiry into the accident was enough but that clearly is not right. At the departmental enquiry nobody is accused of negligence or dereliction of duty. It is a kind of investigation made by the department under statutory rules. Therefore, we are satisfied that the appellant is justified in challenging the validity of the impugned order on the ground that a proper enquiry has not been made and he has not been given a reasonable opportunity to meet the charge against him. The said order must, therefore, be set aside. 4. On behalf of the appellant Mr. Ghosh wanted to satisfy us that the appellant was not guilty of any negligence, much less of any violation of statutory rules; but we did not allow Mr. Ghosh to address us on this point. All that we can do in the present appeal is to set aside the impugned order. It would then be for the department to take appropriate proceedings against the appellant and deal with him in accordance with law. | 1[ds]ut we did not allow Mr. Ghosh to address us on this point. All that we can do in the present appeal is to set aside the impugned order. It would then be for the department to take appropriate proceedings against the appellant and deal with him in accordance with law3. It is obvious that the enquiry into the accident which was held by the statutory committee was not directed against the appellant as such. It was an enquiry held as is always done in cases of accident to find out who was responsible for the accident. In this enquiry the appellant gave evidence and so did other witnesses. It does appear that the committee held that the statements made by the appellant in support of the pointsman were not true and that along with the pointsman the appellant was also negligent in the discharge of his duties. Incidentally it may be pointed out that the first part of the finding which is signed by Mr. Basu, the President of the Enquiry Committee, seems to hold only the pointsman responsible for the accident, though in the latter part the appellant and the pointsman both are held responsible.There is some substance in the grievance made by the appellant that it is not clear from the record when the latter part of the finding was added to the report. But, apart from this aspect of the matter there can be no doubt that it is as a result of this departmental enquiry into the accident that occasion arose to take action against the appellant; and it was obviously necessary that he should have been given a chance to show his innocence by holding an enquiry in respect of the charge that he was responsible for the accident. The findings reached by the enquiry committee as a result of the statutory enquiry cannot be said to be findings made against the appellant in a departmental enquiry made against him for alleged neglect of duty or violation of the statutory rules.This position is fairly conceded before us by Mr. Ganapathi Iyer, and indeed it is patent on the record that, before issuing notice calling upon the appellant to show cause why the proposed penalty should not be imposed on him, no enquiry into the alleged misconduct had really been held. It may be that the authorities concerned took the view that the departmental enquiry into the accident was enough but that clearly is not right. At the departmental enquiry nobody is accused of negligence or dereliction of duty. It is a kind of investigation made by the department under statutory rules. Therefore, we are satisfied that the appellant is justified in challenging the validity of the impugned order on the ground that a proper enquiry has not been made and he has not been given a reasonable opportunity to meet the charge against him. The said order must, therefore, be set aside. | 1 | 1,109 | 519 | ### Instruction:
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1957, he was served with an order reducing him to the rank of Signaller. The validity of this order was challenged by him by a writ petition filed in the High Court of Judicature at Patna on July 3, 1957. The High Court, however, summarily rejected the said petition on July 4, 1957. The appellants application for a certificate under Arts. 132 (1) and 133 (1) (c) of the Constitution was likewise rejected by the High Court. Thereupon the appellant applied for and obtained special leave from this Court. The appellants grievance is that the impugned order has been passed against him without giving him an opportunity to meet the charge as required by Art. 311 of the Constitution. This contention appears to be well-founded; and so the appeal will have to be allowed. It appears that the material facts under which the impugned order came to be passed were not properly brought to the notice of the High Court; otherwise the High Court would not have summarily dismissed the appellants petition. 2. On June 9, 1956, there was a collision between the train engine of 313 Down and a bullock cart as a result of which the cartman died though the buffaloes drawing the cart were not hurt. A departmental enquiry was held into this accident as required by the statute, and as a result of this enquiry it was found that "the accident was due to not locking with chain the level crossing gate between Up, Outer and Home at Rawtara in front of an in-coming train (313 Dn.)". The committee which held the enquiry came to the conclusion that the accident was due to the violation of G. S. R. 229/5 by both the appellant and the pointsman Shri Raghunath Koori. On July 26, 1956, the appellant was served with a notice calling upon him to show cause by written explanation within seven days why the penalty specified in item 1702 (5) or any lesser penalty specified in the said list should not be imposed on him. On receipt of this notice the appellant complained that he had been given no opportunity to meet the charge, that he was innocent and had committed no misconduct and he prayed that local witnesses should be examined. He also referred to the fact that soon after the accident took place the local police officer had made an investigation and his report showed that the appellant was not responsible for the accident. It appears that no subsequent enquiry was held nor was any opportunity given to the appellant to show cause in respect of the charge that he was responsible for the accident. Ultimately on January 9, 1957, the impugned order was passed against him. The appellant appealed against the said order but his appeal failed. It is on these facts that the validity of the said order is challenged by the appellant. 3. It is obvious that the enquiry into the accident which was held by the statutory committee was not directed against the appellant as such. It was an enquiry held as is always done in cases of accident to find out who was responsible for the accident. In this enquiry the appellant gave evidence and so did other witnesses. It does appear that the committee held that the statements made by the appellant in support of the pointsman were not true and that along with the pointsman the appellant was also negligent in the discharge of his duties. Incidentally it may be pointed out that the first part of the finding which is signed by Mr. Basu, the President of the Enquiry Committee, seems to hold only the pointsman responsible for the accident, though in the latter part the appellant and the pointsman both are held responsible.There is some substance in the grievance made by the appellant that it is not clear from the record when the latter part of the finding was added to the report. But, apart from this aspect of the matter there can be no doubt that it is as a result of this departmental enquiry into the accident that occasion arose to take action against the appellant; and it was obviously necessary that he should have been given a chance to show his innocence by holding an enquiry in respect of the charge that he was responsible for the accident. The findings reached by the enquiry committee as a result of the statutory enquiry cannot be said to be findings made against the appellant in a departmental enquiry made against him for alleged neglect of duty or violation of the statutory rules.This position is fairly conceded before us by Mr. Ganapathi Iyer, and indeed it is patent on the record that, before issuing notice calling upon the appellant to show cause why the proposed penalty should not be imposed on him, no enquiry into the alleged misconduct had really been held. It may be that the authorities concerned took the view that the departmental enquiry into the accident was enough but that clearly is not right. At the departmental enquiry nobody is accused of negligence or dereliction of duty. It is a kind of investigation made by the department under statutory rules. Therefore, we are satisfied that the appellant is justified in challenging the validity of the impugned order on the ground that a proper enquiry has not been made and he has not been given a reasonable opportunity to meet the charge against him. The said order must, therefore, be set aside. 4. On behalf of the appellant Mr. Ghosh wanted to satisfy us that the appellant was not guilty of any negligence, much less of any violation of statutory rules; but we did not allow Mr. Ghosh to address us on this point. All that we can do in the present appeal is to set aside the impugned order. It would then be for the department to take appropriate proceedings against the appellant and deal with him in accordance with law.
### Response:
1
### Explanation:
ut we did not allow Mr. Ghosh to address us on this point. All that we can do in the present appeal is to set aside the impugned order. It would then be for the department to take appropriate proceedings against the appellant and deal with him in accordance with law3. It is obvious that the enquiry into the accident which was held by the statutory committee was not directed against the appellant as such. It was an enquiry held as is always done in cases of accident to find out who was responsible for the accident. In this enquiry the appellant gave evidence and so did other witnesses. It does appear that the committee held that the statements made by the appellant in support of the pointsman were not true and that along with the pointsman the appellant was also negligent in the discharge of his duties. Incidentally it may be pointed out that the first part of the finding which is signed by Mr. Basu, the President of the Enquiry Committee, seems to hold only the pointsman responsible for the accident, though in the latter part the appellant and the pointsman both are held responsible.There is some substance in the grievance made by the appellant that it is not clear from the record when the latter part of the finding was added to the report. But, apart from this aspect of the matter there can be no doubt that it is as a result of this departmental enquiry into the accident that occasion arose to take action against the appellant; and it was obviously necessary that he should have been given a chance to show his innocence by holding an enquiry in respect of the charge that he was responsible for the accident. The findings reached by the enquiry committee as a result of the statutory enquiry cannot be said to be findings made against the appellant in a departmental enquiry made against him for alleged neglect of duty or violation of the statutory rules.This position is fairly conceded before us by Mr. Ganapathi Iyer, and indeed it is patent on the record that, before issuing notice calling upon the appellant to show cause why the proposed penalty should not be imposed on him, no enquiry into the alleged misconduct had really been held. It may be that the authorities concerned took the view that the departmental enquiry into the accident was enough but that clearly is not right. At the departmental enquiry nobody is accused of negligence or dereliction of duty. It is a kind of investigation made by the department under statutory rules. Therefore, we are satisfied that the appellant is justified in challenging the validity of the impugned order on the ground that a proper enquiry has not been made and he has not been given a reasonable opportunity to meet the charge against him. The said order must, therefore, be set aside.
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Oriental Insurance Co.Ltd Vs. Siby George | that the employer shall be liable to pay compensation if “personal injury is caused to a workman by accident arising out of and in the course of his employment.” It was not the case of the employer that the right to compensation was taken away under sub-section (5) of Section 3 because of the institution of a suit in a civil court for damages, in respect of the injury, against the employer or any other person. The employer therefore became liable to pay the compensation as soon as the aforesaid personal injury was caused to the workman by the accident which admittedly arose out of and in the course of the employment. It is therefore futile to contend that the compensation did not fall due until after the Commissioner’s order dated May 6, 1969 under Section 19. What the section provides is that if any question arises in any proceeding under the Act as to the liability of any person to pay compensation or as to the amount or duration of the compensation it shall, in default of agreement, be settled by the Commissioner. There is therefore nothing to justify the argument that the employer’s liability to pay compensation under Section 3, in respect of the injury, was suspended until after the settlement contemplated by Section 19. The appellant was thus liable to pay compensation as soon as the aforesaid personal injury was caused to the appellant, and there is no justification for the argument to the contrary.8. It was the duty of the appellant, under Section 4- A(1) of the Act, to pay the compensation at the rate provided by Section 4 as soon as the personal injury was caused to the respondent. He failed to do so. What is worse, he did not even make a provisional payment under sub-section (2) of Section 4 for, as has been stated, he went to the extent of taking the false pleas that the respondent was a casual contractor and that the accident occurred solely because of his negligence. Then there is the further fact that he paid no heed to the respondent’s personal approach for obtaining the compensation. It will be recalled that the respondent was driven to the necessity of making an application to the Commissioner for settling the claim, and even there the appellant raised a frivolous objection as to the jurisdiction of the Commissioner and prevailed on the respondent to file a memorandum of agreement settling the claim for a sum which was so grossly inadequate that it was rejected by the Commissioner. In these facts and circumstances, we have no doubt that the Commissioner was fully justified in making an order for the payment of interest and the penalty.” 9. The matter once again came up before the Court when by amendments introduced in the Act by Act No. 30 of 1995 the amount of compensation and the rate of interest were increased with effect from 15.9.1995. The question arose whether the increased amount of compensation and the rate of interest would apply also to cases in which the accident took place before 15.9.1995. A three Judge Bench of the Court in Kerala State Electricity Board vs. Valsala K., AIR 1999 SC 3502 answered the question in the negative holding, on the authority of Pratap Narain Singh Deo, that the payment of compensation fell due on the date of the accident. In paragraphs 1, 2, and 3 of the decision the Court observed as follows: “1.The neat question involved in these special leave petitions is whether the amendment of Ss.4 and 4A of the Workmen’s Compensation Act, 1923, made by Act No.30 of 1995 with effect from 15-9-1995, enhancing the amount of compensation and rate of interest, would be attracted to cases where the claims in respect of death or permanent disablement resulting from an accident caused during the course of employment, took place prior to 15-9-1995?2. Various High Courts in the country, while dealing with the claim for compensation under the Workmen’s Compensation Act have uniformly taken the view that the relevant date for determining the rights and liabilities of the parties is the date of the accident.3. A four Judge Bench of this Court in Pratap Narain Singh Deo v. Srinivas Sabata, (1976) 1 SCC 289 : (AIR 1976 SC 222 : 1976 Lab IC 222) speaking through Singhal, J. has held that an employer becomes liable to pay compensation as soon as the personal injury is caused to the workmen by the accident which arose out of and in the course of employment. Thus, the relevant date for determination of the rate of compensation is the date of the accident and not the date of adjudication of the claim. 10. The Court then referred to a Full Bench decision of the Kerala High Court in United India Insurance Co. Ltd. vs. Alavi, 1998(1) KerLT 951(FB) and approved it in so far as it followed the decision in Pratap Narain Singh Deo. 11. The decisions in Pratap Narain Singh Deo was by a four Judge Bench and in Valsala by a three Judge Bench of this Court. Both the decisions were, thus, fully binding on the Court in Mubasir Ahmed and Mohd. Nasir, each of which was heard by two Judges. But the earlier decisions in Pratap Narain Singh Deo and Valsala were not brought to the notice of the Court in the two later decisions in Mubasir Ahmed and Mohd. Nasir. 12. In light of the decisions in Pratap Narain Singh Deo and Valsala, it is not open to contend that the payment of compensation would fall due only after the Commissioner’s order or with reference to the date on which the claim application is made. The decisions in Mubasir Ahmed and Mohd. Nasir insofar as they took a contrary view to the earlier decisions in Pratap Narain Singh Deo and Valsala do not express the correct view and do not make binding precedents. 13. In light of the discussion made above, we | 0[ds]12. In light of the decisions in Pratap Narain Singh Deo and Valsala, it is not open to contend that the payment of compensation would fall due only after theorder or with reference to the date on which the claim application is made. The decisions in Mubasir Ahmed and Mohd. Nasir insofar as they took a contrary view to the earlier decisions in Pratap Narain Singh Deo and Valsala do not express the correct view and do not make binding precedents.It is, thus, to be seen that(3) of sectionis in two parts, separately dealing with interest and penalty in clauses (a) and (b) respectively. Clause (a) makes the levy of interest, with no option, in case of default in payment of compensation, without going into the question regarding the reasons for the default. Clause (b) provides for imposition of penalty in case, in the opinion of the Commissioner, there was no justification for the delay. Before imposing penalty, however, the Commissioner is required to give the employer a reasonable opportunity to show cause. On a plain reading of the provisions of(3) it becomes clear that payment of interest is a consequence of default in payment without going into the reasons for the delay and it is only in case where the delay is without justification, the employer might also be held liable to penalty after giving him a show cause. Therefore, a finding to the effect that the delay in payment of the amount due was unjustified is required to be recorded only in case of imposition of penalty and no such finding is required in case of interest which is to be levied on default per se. | 0 | 2,736 | 318 | ### Instruction:
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that the employer shall be liable to pay compensation if “personal injury is caused to a workman by accident arising out of and in the course of his employment.” It was not the case of the employer that the right to compensation was taken away under sub-section (5) of Section 3 because of the institution of a suit in a civil court for damages, in respect of the injury, against the employer or any other person. The employer therefore became liable to pay the compensation as soon as the aforesaid personal injury was caused to the workman by the accident which admittedly arose out of and in the course of the employment. It is therefore futile to contend that the compensation did not fall due until after the Commissioner’s order dated May 6, 1969 under Section 19. What the section provides is that if any question arises in any proceeding under the Act as to the liability of any person to pay compensation or as to the amount or duration of the compensation it shall, in default of agreement, be settled by the Commissioner. There is therefore nothing to justify the argument that the employer’s liability to pay compensation under Section 3, in respect of the injury, was suspended until after the settlement contemplated by Section 19. The appellant was thus liable to pay compensation as soon as the aforesaid personal injury was caused to the appellant, and there is no justification for the argument to the contrary.8. It was the duty of the appellant, under Section 4- A(1) of the Act, to pay the compensation at the rate provided by Section 4 as soon as the personal injury was caused to the respondent. He failed to do so. What is worse, he did not even make a provisional payment under sub-section (2) of Section 4 for, as has been stated, he went to the extent of taking the false pleas that the respondent was a casual contractor and that the accident occurred solely because of his negligence. Then there is the further fact that he paid no heed to the respondent’s personal approach for obtaining the compensation. It will be recalled that the respondent was driven to the necessity of making an application to the Commissioner for settling the claim, and even there the appellant raised a frivolous objection as to the jurisdiction of the Commissioner and prevailed on the respondent to file a memorandum of agreement settling the claim for a sum which was so grossly inadequate that it was rejected by the Commissioner. In these facts and circumstances, we have no doubt that the Commissioner was fully justified in making an order for the payment of interest and the penalty.” 9. The matter once again came up before the Court when by amendments introduced in the Act by Act No. 30 of 1995 the amount of compensation and the rate of interest were increased with effect from 15.9.1995. The question arose whether the increased amount of compensation and the rate of interest would apply also to cases in which the accident took place before 15.9.1995. A three Judge Bench of the Court in Kerala State Electricity Board vs. Valsala K., AIR 1999 SC 3502 answered the question in the negative holding, on the authority of Pratap Narain Singh Deo, that the payment of compensation fell due on the date of the accident. In paragraphs 1, 2, and 3 of the decision the Court observed as follows: “1.The neat question involved in these special leave petitions is whether the amendment of Ss.4 and 4A of the Workmen’s Compensation Act, 1923, made by Act No.30 of 1995 with effect from 15-9-1995, enhancing the amount of compensation and rate of interest, would be attracted to cases where the claims in respect of death or permanent disablement resulting from an accident caused during the course of employment, took place prior to 15-9-1995?2. Various High Courts in the country, while dealing with the claim for compensation under the Workmen’s Compensation Act have uniformly taken the view that the relevant date for determining the rights and liabilities of the parties is the date of the accident.3. A four Judge Bench of this Court in Pratap Narain Singh Deo v. Srinivas Sabata, (1976) 1 SCC 289 : (AIR 1976 SC 222 : 1976 Lab IC 222) speaking through Singhal, J. has held that an employer becomes liable to pay compensation as soon as the personal injury is caused to the workmen by the accident which arose out of and in the course of employment. Thus, the relevant date for determination of the rate of compensation is the date of the accident and not the date of adjudication of the claim. 10. The Court then referred to a Full Bench decision of the Kerala High Court in United India Insurance Co. Ltd. vs. Alavi, 1998(1) KerLT 951(FB) and approved it in so far as it followed the decision in Pratap Narain Singh Deo. 11. The decisions in Pratap Narain Singh Deo was by a four Judge Bench and in Valsala by a three Judge Bench of this Court. Both the decisions were, thus, fully binding on the Court in Mubasir Ahmed and Mohd. Nasir, each of which was heard by two Judges. But the earlier decisions in Pratap Narain Singh Deo and Valsala were not brought to the notice of the Court in the two later decisions in Mubasir Ahmed and Mohd. Nasir. 12. In light of the decisions in Pratap Narain Singh Deo and Valsala, it is not open to contend that the payment of compensation would fall due only after the Commissioner’s order or with reference to the date on which the claim application is made. The decisions in Mubasir Ahmed and Mohd. Nasir insofar as they took a contrary view to the earlier decisions in Pratap Narain Singh Deo and Valsala do not express the correct view and do not make binding precedents. 13. In light of the discussion made above, we
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0
### Explanation:
12. In light of the decisions in Pratap Narain Singh Deo and Valsala, it is not open to contend that the payment of compensation would fall due only after theorder or with reference to the date on which the claim application is made. The decisions in Mubasir Ahmed and Mohd. Nasir insofar as they took a contrary view to the earlier decisions in Pratap Narain Singh Deo and Valsala do not express the correct view and do not make binding precedents.It is, thus, to be seen that(3) of sectionis in two parts, separately dealing with interest and penalty in clauses (a) and (b) respectively. Clause (a) makes the levy of interest, with no option, in case of default in payment of compensation, without going into the question regarding the reasons for the default. Clause (b) provides for imposition of penalty in case, in the opinion of the Commissioner, there was no justification for the delay. Before imposing penalty, however, the Commissioner is required to give the employer a reasonable opportunity to show cause. On a plain reading of the provisions of(3) it becomes clear that payment of interest is a consequence of default in payment without going into the reasons for the delay and it is only in case where the delay is without justification, the employer might also be held liable to penalty after giving him a show cause. Therefore, a finding to the effect that the delay in payment of the amount due was unjustified is required to be recorded only in case of imposition of penalty and no such finding is required in case of interest which is to be levied on default per se.
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Oil & Natural Gas Corpn.Ltd Vs. Western Geco International Ltd | the importance of Judicial approach in judicial and quasi judicial determination lies in the fact so long as the Court, Tribunal or the authority exercising powers that affect the rights or obligations of the parties before them shows fidelity to judicial approach, they cannot act in an arbitrary, capricious or whimsical manner. Judicial approach ensures that the authority acts bonafide and deals with the subject in a fair, reasonable and objective manner and that its decision is not actuated by any extraneous consideration. Judicial approach in that sense acts as a check against flaws and faults that can render the decision of a Court, Tribunal or Authority vulnerable to challenge. In Ridge v. Baldwin [1963 2 All ER 66], the House of Lords was considering the question whether a Watch Committee in exercising its authority under Section 191 of the Municipal Corporations Act, 1882 was required to act judicially. The majority decision was that it had to act judicially and since the order of dismissal was passed without furnishing to the appellant a specific charge, it was a nullity. Dealing with the appellant’s contention that the Watch Committee had to act judicially, Lord Reid relied upon the following observations made by Atkin L.J. in [1924] 1 KB at pp. 206,207: “Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority, they are subject to the controlling jurisdiction of the King’s Bench Division exercised in these writs.” 27. The view taken by Lord Reid was relied upon by a Constitution Bench of this Court in A.C. Companies Ltd vs. P.N. Sharma and Anr. (AIR 1965 SC 1595 ) where Gajendragadkar, C.J. speaking for the Court observed : “In other words, according to Lord Reid’s judgment, the necessity to follow judicial procedure and observe the principles of natural justice, flows from the nature of the decision which the watch committee had been authorised to reach under S.191(4). It would thus be seen that the area where the principles of natural justice have to be followed and judicial approach has to be adopted, has become wider and consequently, the horizon of writ jurisdiction has been extended in a corresponding measure. In dealing with questions as to whether any impugned orders could be revised under A. 226 of our Constitution, the test prescribed by Lord Reid in this judgment may afford considerable assistance.” 28. Equally important and indeed fundamental to the policy of Indian law is the principle that a Court and so also a quasi-judicial authority must, while determining the rights and obligations of parties before it, do so in accordance with the principles of natural justice. Besides the celebrated ‘audi alteram partem’ rule one of the facets of the principles of natural justice is that the Court/authority deciding the matter must apply its mind to the attendant facts and circumstances while taking a view one way or the other. Non-application of mind is a defect that is fatal to any adjudication. Application of mind is best demonstrated by disclosure of the mind and disclosure of mind is best done by recording reasons in support of the decision which the Court or authority is taking. The requirement that an adjudicatory authority must apply its mind is, in that view, so deeply embedded in our jurisprudence that it can be described as a fundamental policy of Indian Law.29. No less important is the principle now recognised as a salutary juristic fundamental in administrative law that a decision which is perverse or so irrational that no reasonable person would have arrived at the same will not be sustained in a Court of law. Perversity or irrationality of decisions is tested on the touchstone of Wednesbury’s principle of reasonableness. Decisions that fall short of the standards of reasonableness are open to challenge in a Court of law often in writ jurisdiction of the Superior courts but no less in statutory processes where ever the same are available.30. It is neither necessary nor proper for us to attempt an exhaustive enumeration of what would constitute the fundamental policy of Indian law nor is it possible to place the expression in the straitjacket of a definition. What is important in the context of the case at hand is that if on facts proved before them the arbitrators fail to draw an inference which ought to have been drawn or if they have drawn an inference which is on the face of it, untenable resulting in miscarriage of justice, the adjudication even when made by an arbitral tribunal that enjoys considerable latitude and play at the joints in making awards will be open to challenge and may be cast away or modified depending upon whether the offending part is or is not severable from the rest.31. Inasmuch as the arbitrators clubbed the entire period between 16th October, 2001 and 21st March, 2002 for purposes of holding the appellant-Corporation responsible for the delay, they committed an error resulting in miscarriage of justice apart from the fact that they failed to appreciate and draw inferences that logically flow from such proved facts. We have, therefore, no hesitation in rejecting the contention urged on behalf of the respondent that the arbitral award should not despite the infirmities pointed out by us be disturbed.32. That brings us to the last submission that deduction on account of taxes not paid should have been allowed by the respondent-arbitral tribunal. The Tribunal has, in our opinion, correctly held that no part of the work was undertaken outside Singapore which was to be executed on a turnkey basis for a price that was pre-determined. The arbitrators have, in our opinion, rightly held that no taxes were payable under the Indian Income tax Act so as to entitle the Corporation to deduct any amount on that account by reason of non-payment of such taxes. The challenge to the award to that extent must fail and is, hereby, rejected. | 1[ds]19. The above period of 4 months and 22 days between 1st November, 2001 and 22nd March, 2002, in our opinion, comprises four separate intervals. The first of these four intervals is the period between 1st November, 2001 and 26th November, 2001 which period was taken by the appellant-Corporation to take a final decision whether or not an application should be made to the U.S authorities for the issue of a licence. The second interval comprises time taken by the respondent-claimant to make an application between 27th November, 2001 and 7th January, 2002, both days inclusive. The application for grant of a license was filed by the respondent only on 8th January, 2002. The third interval comprises time taken by the U.S Authorities between 8th January, 2002 and 7th March, 2002 to formally decline the issue of a license for sale of US made hydrophones to India. The fourth interval comprises time taken by the respondent-claimant to convey the decision of the U.S Authorities between 8th March, 2002 and 21st March, 2002. It is common ground that while the U.S Authorities had rejected the request for grant of a license on 8th March, 2002, the said rejection was conveyed to the appellant-corporation only on 22nd March, 2002.20. From the findings of the fact recorded by the arbitrators with which we see no reason to interfere or disagree, it is evident, that the appellant-corporation was solely responsible for the delay in taking a decision in the matter between 24th October, 2001 and 26th November, 2001. The arbitrators have found and, in our opinion, rightly so that the respondent-claimant had by its letter dated 24th October, 2001 clearly informed the appellant that there was no use pursuing the matter with the U.S. Authorities any further. Even particulars regarding Canadian hydrophones were supplied to the appellant in terms of a letter dated 25th October, 2001. The arbitrators have held that delay in taking a decision whether or not any formal application should be made and a formal rejection obtained by the respondent was attributable only to the appellant- Corporation. There is, in our opinion, no legal flaw, infirmity or perversity in that finding which we hereby affirm. Deduction made by the appellant-Corporation for the First interval that comprises period between 1st November, 2001 and 25th November, 2001, both days inclusive, cannot, therefore, be sustained and the arbitral award to that extent cannot be faulted.21. That brings us to the second interval comprising period between 26th November, 2001-the date when the appellant-Corporation issued instructions for making of a formal application for the grant of a license and 8th January, 2002-when such an application was actually made by the respondent-company. This period reckoned from 27th November, 2001 to 7th January, 2002 works out to 42 (Forty two) days which must be attributed to the respondent- claimant, who could and indeed ought to have acted diligently and with reasonable despatch in the matter instead of taking the same easy, and if we may say so somewhat reluctantly. We cannot help saying with utmost respect at our command for the eminence and erudition of the distinguished jurists comprising the Arbitral Tribunal that the tribunal failed to appreciate this aspect hence fell in a palpable error leading to miscarriage of justice. The test adopted by the Tribunal for holding the appellant-Corporation responsible for delay ought to have been applied to the respondent as well for its failure to take action in the right earnest instead of sitting over the matter leading to detention of the vessel for a period more than what was absolutely necessary.22. The period between 8th January, 2002 and 8th March, 2002 comprising the third interval during which the U.S. authorities decided the application for the grant of a license has been rightly counted against the appellant-Corporation as it was at the instance of the Corporation that a formal application was made. The time spent by the U.S. authorities for disposal of the request could not in the facts and circumstances be attributed to or counted against the respondent-claimant who had advised the appellant against any such move. The arbitral Tribunal, therefore rightly held that deduction for this period was not justified.23. That leaves us with the fourth and the last interval comprising the period between 8th March, 2002 and 22nd March, 2002 when the rejection of the application was conveyed to the appellant-Corporation. There is, in our opinion, no valid reason why this period should not be counted against the respondent, who could and indeed should have conveyed the rejection to the appellant-Corporation forthwith, instead of taking nearly two weeks to do so. To sum up; the period of 4 months and 22 days which the arbitrators have attributed to the appellant-Corporation shall have to be reduced by 42 days comprising the first interval and 14 days comprising the fourth making a total of 56 days. Resultantly, deduction made by the appellant- Corporation for 56 days referred to above deserve to be affirmed, and the award made by the arbitrators modified to that extent. It follows that the amount awarded to the respondent-Company shall on a proportionate basis, stand reduced.It is true that none of the grounds enumerated under Section 34(2)(a) were set up before the High Court to assail the arbitral award. What was all the same urged before the High Court and so also before us was that the award made by the arbitrators was in conflict with thea ground recognised under Section 34(2)(b)(ii) (supra). The expressionfell for interpretation before this Court in ONGC Ltd. v. Saw Pipes Ltd. (2003) 5 SCC 705 and was, after a comprehensive review of the case law on the subject, explained in para 31 of the decision in the followingTherefore, in our view, the phraseused in Section 34 in context is required to be given a wider meaning. It can be stated that the concept of public policy connotes some matter which concerns public good and the public interest. What is for public good or in public interest or what would be injurious or harmful to the public good or public interest has varied from time to time. However, the award which is, on the face of it, patently in violation of statutory provisions cannot be said to be in public interest. Such award/judgment/decision is likely to adversely affect the administration of justice. Hence, in our view in addition to narrower meaning given to the termin Renusagar case10 it is required to be held that the award could be set aside if it is patently illegal. The result would be — award could be set aside if it is contrary to:(a) fundamental policy of Indian law; or(b) the interest of India; or(c) justice or morality, or[pic](d) in addition, if it is patently illegal.Illegality must go to the root of the matter and if the illegality is of trivial nature it cannot be held that award is against the public policy.Award could also be set aside if it is so unfair and unreasonable that it shocks the conscience of the court. Such award is opposed to public policy and is required to be adjudged void.What then would constitute the ‘Fundamental policy of Indianis the question. The decision in Saw Pipes Ltd. (supra) does not elaborate that aspect. Even so, the expression must, in our opinion, include all such fundamental principles as providing a basis for administration of justice and enforcement of law in this country. Without meaning to exhaustively enumerate the purport of the expressionPolicy of Indianwe may refer to three distinct and fundamental juristic principles that must necessarily be understood as a part and parcel of the FundamentalPolicy of Indianlaw. The first and foremost is the principle that in every determination whether by a Court or other authority that affects the rights of a citizen or leads to any civil consequences, the Court or authority concerned is bound to adopt what is in legal parlance called a ‘judicialin the matter. The duty to adopt a judicial approach arises from the very nature of the power exercised by the Court or the authority does not have to be separately or additionally enjoined upon the fora concerned. What must be remembered is that the importance of Judicial approach in judicial and quasi judicial determination lies in the fact so long as the Court, Tribunal or the authority exercising powers that affect the rights or obligations of the parties before them shows fidelity to judicial approach, they cannot act in an arbitrary, capricious or whimsical manner. Judicial approach ensures that the authority acts bonafide and deals with the subject in a fair, reasonable and objective manner and that its decision is not actuated by any extraneous consideration. Judicial approach in that sense acts as a check against flaws and faults that can render the decision of a Court, Tribunal or Authority vulnerable to challenge. In Ridge v. Baldwin [1963 2 All ER 66], the House of Lords was considering the question whether a Watch Committee in exercising its authority under Section 191 of the Municipal Corporations Act, 1882 was required to act judicially. The majority decision was that it had to act judicially and since the order of dismissal was passed without furnishing to the appellant a specific charge, it was a nullity. Dealing with thecontention that the Watch Committee had to act judicially, Lord Reid relied upon the following observations made by Atkin L.J. in [1924] 1 KB at pp.any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority, they are subject to the controlling jurisdiction of theBench Division exercised in these writs.The view taken by Lord Reid was relied upon by a Constitution Bench of this Court in A.C. Companies Ltd vs. P.N. Sharma and Anr. (AIR 1965 SC 1595 ) where Gajendragadkar, C.J. speaking for the Court observedother words, according to Lordjudgment, the necessity to follow judicial procedure and observe the principles of natural justice, flows from the nature of the decision which the watch committee had been authorised to reach under S.191(4). It would thus be seen that the area where the principles of natural justice have to be followed and judicial approach has to be adopted, has become wider and consequently, the horizon of writ jurisdiction has been extended in a corresponding measure. In dealing with questions as to whether any impugned orders could be revised under A. 226 of our Constitution, the test prescribed by Lord Reid in this judgment may afford considerable assistance.Equally important and indeed fundamental to the policy of Indian law is the principle that a Court and so also a quasi-judicial authority must, while determining the rights and obligations of parties before it, do so in accordance with the principles of natural justice. Besides the celebrated ‘audi alteramrule one of the facets of the principles of natural justice is that the Court/authority deciding the matter must apply its mind to the attendant facts and circumstances while taking a view one way or the other. Non-application of mind is a defect that is fatal to any adjudication. Application of mind is best demonstrated by disclosure of the mind and disclosure of mind is best done by recording reasons in support of the decision which the Court or authority is taking. The requirement that an adjudicatory authority must apply its mind is, in that view, so deeply embedded in our jurisprudence that it can be described as a fundamental policy of Indian Law.29. No less important is the principle now recognised as a salutary juristic fundamental in administrative law that a decision which is perverse or so irrational that no reasonable person would have arrived at the same will not be sustained in a Court of law. Perversity or irrationality of decisions is tested on the touchstone ofprinciple of reasonableness. Decisions that fall short of the standards of reasonableness are open to challenge in a Court of law often in writ jurisdiction of the Superior courts but no less in statutory processes where ever the same are available.30. It is neither necessary nor proper for us to attempt an exhaustive enumeration of what would constitute the fundamental policy of Indian law nor is it possible to place the expression in the straitjacket of a definition. What is important in the context of the case at hand is that if on facts proved before them the arbitrators fail to draw an inference which ought to have been drawn or if they have drawn an inference which is on the face of it, untenable resulting in miscarriage of justice, the adjudication even when made by an arbitral tribunal that enjoys considerable latitude and play at the joints in making awards will be open to challenge and may be cast away or modified depending upon whether the offending part is or is not severable from the rest.31. Inasmuch as the arbitrators clubbed the entire period between 16th October, 2001 and 21st March, 2002 for purposes of holding the appellant-Corporation responsible for the delay, they committed an error resulting in miscarriage of justice apart from the fact that they failed to appreciate and draw inferences that logically flow from such proved facts. We have, therefore, no hesitation in rejecting the contention urged on behalf of the respondent that the arbitral award should not despite the infirmities pointed out by us be disturbed.32. That brings us to the last submission that deduction on account of taxes not paid should have been allowed by the respondent-arbitral tribunal. The Tribunal has, in our opinion, correctly held that no part of the work was undertaken outside Singapore which was to be executed on a turnkey basis for a price that was pre-determined. The arbitrators have, in our opinion, rightly held that no taxes were payable under the Indian Income tax Act so as to entitle the Corporation to deduct any amount on that account by reason of non-payment of such taxes. The challenge to the award to that extent must fail and is, hereby, rejected. | 1 | 6,999 | 2,579 | ### 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 importance of Judicial approach in judicial and quasi judicial determination lies in the fact so long as the Court, Tribunal or the authority exercising powers that affect the rights or obligations of the parties before them shows fidelity to judicial approach, they cannot act in an arbitrary, capricious or whimsical manner. Judicial approach ensures that the authority acts bonafide and deals with the subject in a fair, reasonable and objective manner and that its decision is not actuated by any extraneous consideration. Judicial approach in that sense acts as a check against flaws and faults that can render the decision of a Court, Tribunal or Authority vulnerable to challenge. In Ridge v. Baldwin [1963 2 All ER 66], the House of Lords was considering the question whether a Watch Committee in exercising its authority under Section 191 of the Municipal Corporations Act, 1882 was required to act judicially. The majority decision was that it had to act judicially and since the order of dismissal was passed without furnishing to the appellant a specific charge, it was a nullity. Dealing with the appellant’s contention that the Watch Committee had to act judicially, Lord Reid relied upon the following observations made by Atkin L.J. in [1924] 1 KB at pp. 206,207: “Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority, they are subject to the controlling jurisdiction of the King’s Bench Division exercised in these writs.” 27. The view taken by Lord Reid was relied upon by a Constitution Bench of this Court in A.C. Companies Ltd vs. P.N. Sharma and Anr. (AIR 1965 SC 1595 ) where Gajendragadkar, C.J. speaking for the Court observed : “In other words, according to Lord Reid’s judgment, the necessity to follow judicial procedure and observe the principles of natural justice, flows from the nature of the decision which the watch committee had been authorised to reach under S.191(4). It would thus be seen that the area where the principles of natural justice have to be followed and judicial approach has to be adopted, has become wider and consequently, the horizon of writ jurisdiction has been extended in a corresponding measure. In dealing with questions as to whether any impugned orders could be revised under A. 226 of our Constitution, the test prescribed by Lord Reid in this judgment may afford considerable assistance.” 28. Equally important and indeed fundamental to the policy of Indian law is the principle that a Court and so also a quasi-judicial authority must, while determining the rights and obligations of parties before it, do so in accordance with the principles of natural justice. Besides the celebrated ‘audi alteram partem’ rule one of the facets of the principles of natural justice is that the Court/authority deciding the matter must apply its mind to the attendant facts and circumstances while taking a view one way or the other. Non-application of mind is a defect that is fatal to any adjudication. Application of mind is best demonstrated by disclosure of the mind and disclosure of mind is best done by recording reasons in support of the decision which the Court or authority is taking. The requirement that an adjudicatory authority must apply its mind is, in that view, so deeply embedded in our jurisprudence that it can be described as a fundamental policy of Indian Law.29. No less important is the principle now recognised as a salutary juristic fundamental in administrative law that a decision which is perverse or so irrational that no reasonable person would have arrived at the same will not be sustained in a Court of law. Perversity or irrationality of decisions is tested on the touchstone of Wednesbury’s principle of reasonableness. Decisions that fall short of the standards of reasonableness are open to challenge in a Court of law often in writ jurisdiction of the Superior courts but no less in statutory processes where ever the same are available.30. It is neither necessary nor proper for us to attempt an exhaustive enumeration of what would constitute the fundamental policy of Indian law nor is it possible to place the expression in the straitjacket of a definition. What is important in the context of the case at hand is that if on facts proved before them the arbitrators fail to draw an inference which ought to have been drawn or if they have drawn an inference which is on the face of it, untenable resulting in miscarriage of justice, the adjudication even when made by an arbitral tribunal that enjoys considerable latitude and play at the joints in making awards will be open to challenge and may be cast away or modified depending upon whether the offending part is or is not severable from the rest.31. Inasmuch as the arbitrators clubbed the entire period between 16th October, 2001 and 21st March, 2002 for purposes of holding the appellant-Corporation responsible for the delay, they committed an error resulting in miscarriage of justice apart from the fact that they failed to appreciate and draw inferences that logically flow from such proved facts. We have, therefore, no hesitation in rejecting the contention urged on behalf of the respondent that the arbitral award should not despite the infirmities pointed out by us be disturbed.32. That brings us to the last submission that deduction on account of taxes not paid should have been allowed by the respondent-arbitral tribunal. The Tribunal has, in our opinion, correctly held that no part of the work was undertaken outside Singapore which was to be executed on a turnkey basis for a price that was pre-determined. The arbitrators have, in our opinion, rightly held that no taxes were payable under the Indian Income tax Act so as to entitle the Corporation to deduct any amount on that account by reason of non-payment of such taxes. The challenge to the award to that extent must fail and is, hereby, rejected.
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authority does not have to be separately or additionally enjoined upon the fora concerned. What must be remembered is that the importance of Judicial approach in judicial and quasi judicial determination lies in the fact so long as the Court, Tribunal or the authority exercising powers that affect the rights or obligations of the parties before them shows fidelity to judicial approach, they cannot act in an arbitrary, capricious or whimsical manner. Judicial approach ensures that the authority acts bonafide and deals with the subject in a fair, reasonable and objective manner and that its decision is not actuated by any extraneous consideration. Judicial approach in that sense acts as a check against flaws and faults that can render the decision of a Court, Tribunal or Authority vulnerable to challenge. In Ridge v. Baldwin [1963 2 All ER 66], the House of Lords was considering the question whether a Watch Committee in exercising its authority under Section 191 of the Municipal Corporations Act, 1882 was required to act judicially. The majority decision was that it had to act judicially and since the order of dismissal was passed without furnishing to the appellant a specific charge, it was a nullity. Dealing with thecontention that the Watch Committee had to act judicially, Lord Reid relied upon the following observations made by Atkin L.J. in [1924] 1 KB at pp.any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority, they are subject to the controlling jurisdiction of theBench Division exercised in these writs.The view taken by Lord Reid was relied upon by a Constitution Bench of this Court in A.C. Companies Ltd vs. P.N. Sharma and Anr. (AIR 1965 SC 1595 ) where Gajendragadkar, C.J. speaking for the Court observedother words, according to Lordjudgment, the necessity to follow judicial procedure and observe the principles of natural justice, flows from the nature of the decision which the watch committee had been authorised to reach under S.191(4). It would thus be seen that the area where the principles of natural justice have to be followed and judicial approach has to be adopted, has become wider and consequently, the horizon of writ jurisdiction has been extended in a corresponding measure. In dealing with questions as to whether any impugned orders could be revised under A. 226 of our Constitution, the test prescribed by Lord Reid in this judgment may afford considerable assistance.Equally important and indeed fundamental to the policy of Indian law is the principle that a Court and so also a quasi-judicial authority must, while determining the rights and obligations of parties before it, do so in accordance with the principles of natural justice. Besides the celebrated ‘audi alteramrule one of the facets of the principles of natural justice is that the Court/authority deciding the matter must apply its mind to the attendant facts and circumstances while taking a view one way or the other. Non-application of mind is a defect that is fatal to any adjudication. Application of mind is best demonstrated by disclosure of the mind and disclosure of mind is best done by recording reasons in support of the decision which the Court or authority is taking. The requirement that an adjudicatory authority must apply its mind is, in that view, so deeply embedded in our jurisprudence that it can be described as a fundamental policy of Indian Law.29. No less important is the principle now recognised as a salutary juristic fundamental in administrative law that a decision which is perverse or so irrational that no reasonable person would have arrived at the same will not be sustained in a Court of law. Perversity or irrationality of decisions is tested on the touchstone ofprinciple of reasonableness. Decisions that fall short of the standards of reasonableness are open to challenge in a Court of law often in writ jurisdiction of the Superior courts but no less in statutory processes where ever the same are available.30. It is neither necessary nor proper for us to attempt an exhaustive enumeration of what would constitute the fundamental policy of Indian law nor is it possible to place the expression in the straitjacket of a definition. What is important in the context of the case at hand is that if on facts proved before them the arbitrators fail to draw an inference which ought to have been drawn or if they have drawn an inference which is on the face of it, untenable resulting in miscarriage of justice, the adjudication even when made by an arbitral tribunal that enjoys considerable latitude and play at the joints in making awards will be open to challenge and may be cast away or modified depending upon whether the offending part is or is not severable from the rest.31. Inasmuch as the arbitrators clubbed the entire period between 16th October, 2001 and 21st March, 2002 for purposes of holding the appellant-Corporation responsible for the delay, they committed an error resulting in miscarriage of justice apart from the fact that they failed to appreciate and draw inferences that logically flow from such proved facts. We have, therefore, no hesitation in rejecting the contention urged on behalf of the respondent that the arbitral award should not despite the infirmities pointed out by us be disturbed.32. That brings us to the last submission that deduction on account of taxes not paid should have been allowed by the respondent-arbitral tribunal. The Tribunal has, in our opinion, correctly held that no part of the work was undertaken outside Singapore which was to be executed on a turnkey basis for a price that was pre-determined. The arbitrators have, in our opinion, rightly held that no taxes were payable under the Indian Income tax Act so as to entitle the Corporation to deduct any amount on that account by reason of non-payment of such taxes. The challenge to the award to that extent must fail and is, hereby, rejected.
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Addl. Collector Of Customs, Calcutta & Anr Vs. M/S. Best & Co | the order or judgment the appellant would not be entitled to exclusion of time as such time would not be " requisite" time within the meaning of S. 12 (2) and the High Court was therefore right in dismissing the appeal as being beyond time. The Privy Council disagreed with this contention holding that S. 12 contained a positive direction for exclusion of time and that such direction applied irrespective of whether the rules permitted the filing of an appeal or an application without annexing the copy of the order or judgment. The Privy Council emphasised that the positive direction contained in S. 12 was unconditional inasmuch as there was no reference therein to the Code of Civil Procedure and the section did not say why the time was to be excluded. At p. 170 of the report (Ind app): (at p. 105 of AIR) the Privy council observed:"If, indeed, it could be shown that in some particular class of cases there could be no object in obtaining the two documents, an argument might be offered that no time could be requisite for obtaining something not requisite. But this is not so. The decree may be complicated, and it may be open to draw it up in two different ways, and the practitioner may well want to see its form before attacking it by his memorandum of appeal. As to the judgment, no doubt when the case does not come from up country, the practitioner will have heard it delivered, but he may not carry all the points of a long judgment in his memory, and as Sir John Edge says, the Legislature may not wish him to hurry to make a decision till he has well considered it." 11. These observations were an answer to the contention that no time could be requisite for obtaining something not requisite. The legislature allowed the exclusion even though the rules of a Court might not require a copy to be annexed to the memorandum of appeal for a party who intends to file an appeal may desire to examine the decree or the judgment before he launches a further proceeding. Therefore, the exclusion was allowed irrespective of the rules of a Court which permit a party to file an appeal without annexing a certified copy of the judgment or decree or order. 12. In imperial Bucket Co. v. Smt. Bhagwati Basak AIR 1954 Cal 520 there are however observations to the effect that an appellant will have the benefit of S. 12 in a case where he has annexed to the memorandum of appeal a certified copy of the judgment appealed from even though by the statute under which the appeal is filed, no certified copy of the order appealed from is required. This decision does not necessarily mean that where a copy is applied for and obtained but not annexed the time in obtaining it was for a thing not requisite. As the Privy Council observed, a party might like to examine the judgment or the decree or the order before he challenged it in a higher forum. Though the judgment states that such time would be excluded where the copy is annexed, it does not lay down that there can be no exclusion of time where it is not annexed. But in Gangaram v. Beharilal, AIR 1952 Bhopal 39 a view has been taken that sub-ss. 2 and 3 of S. 12 would only be attracted when a copy of the judgment or decree or order appealed from accompanies the application for review. This view is not in consonance with and in fact is contrary to the interpretation of S. 12 by the Privy Council in Surtys Case, 55 Ind. App. 161: (AIR 1928 P. C. 103) (supra) and is therefore unwarranted. The same must also be said of Abdul Aziz v. Jai Ram, AIR 1951 Him Pra 67. As observed by the Privy Council in Surtys case, 55 Ind App 161: (AIR 1928 PC 103 ) (supra) the view of the High Courts of Bombay, Calcutta and Allahabad as expressed in Haji Hassum v. Noor Mohammad, (1904) ILR 28 Bom 643, Kalipada Karmakar v. Shekharbasini Dasya, 24 Cal LJ 235: (AIR 1917 Cal 320) and Waid Ali Shah v. Nawal Kishore, (1895) ILR 17 All 213 was that an appellant was entitled to exclusion of time in obtaining a copy of a judgment and decree even though the rules permit him to file the appeal without annexing such a copy. The view contended for on behalf of the respondents is thus not only contrary to the decision of the Privy Council but if accepted would lead to a somewhat surprising result, viz., that if the petitioners had waited till the copy of the order was furnished to them, their application would have been in time or if they had withdrawn their application and filed a fresh one or amended their application and annexed the copy of the order such a fresh application, or such amended application which in its unamended form was in their view time barred would have been well within the period of limitation. In our view such a result is not to be contemplated. As the Privy Council has laid down the provisions of S. 12 (2) and (3) are a positive direction excluding the time taken in obtaining a copy of the judgment and decree or order as the case may be and those provisions are irrespective of the Code of Civil Procedure or the rules made by a Court under S. 122 of the Code. Such rules if they permit a memorandum of appeal to be filed without annexing thereto a copy of the judgment or decree or order confer a privilege on a would-be appellant but do not govern the positive direction contained in S. 12.The High Court in this view, therefore, was not right in dismissing the petitioners application for leave to appeal on the ground that it was barred by limitation. | 1[ds]On a plain reading of these sub-sections, it is clear that the time for obtaining the certified copy of both the judgment and the decree or order as the case may be, must be excluded while computing the period of limitation. The object of the exclusion is to enable the person desiring to appeal to consider the terms of the decree, judgment and order before he decides to launch a further proceeding in respect of it7. Two views were, however, canvassed before us on the construction of S. 12. One was that the right of exclusion of time is qualified by the words "time requisite for obtaining a copy of the decree, sentence or order" in sub-section 2. Therefore, if an application for leave to appeal does not require a certified copy of the order in question to be annexed to the application it is not possible to say that the time required for obtaining such a copy was requisite. In such cases the time in obtaining copy would not be requisite time and consequently the applicant would not be entitled to exclude the time taken in obtaining the certified copy of the order. Certain decisions of some of the High Courts have also taken the view that such an applicant would not be entitled to the benefit of the sub-section where a copy of the decree, judgment or order is not actually annexed to the application or the memorandum of appeal. The other view is that sub-ss. 2 and 3 of S. 12 enact the rule of exclusion as a positive direction. The object of the sub-section being to afford a party opportunity to consider his position even where a certified copy of the judgment gives all the necessary information enabling the party to decide to proceed further or not, he would nevertheless be entitled to exclude the time for obtaining the certified copy of the decree or order. It has been held in some decisions that even in cases where it is not necessary to prepare a formal order, if such an order is prepared, the party would be entitled to the benefit of exclusion of time taken in preparing and furnishing a copy thereof where it is applied forRule 4, in Chapter XXXIII - A of the Rules of the High Court requires that an application for leave to appeal shall be made by a notice of motion before the appellate Court and shall be presented in the prescribed form, viz.; Form No. 3. That form does not require that a certified copy of the judgment and/or decree or order need be annexed to such an application. The rule and the form thus enable a party to file an application for a certificate without annexing either a copy of a judgment or a copy of an order. But that does not mean that the rule and the form lay down any mandatory direction that a copy either of the order or of the judgment shall not be annexed. The rule and the form thus do not assist or further the argument urged by counsel for the respondents10. In regard to his first contention the learned counsel for the respondents urged that sub-ss. 2 and 3 of S. 12 would not apply where it is not necessary to annex a copy of the judgment or order. For, in such a case it is not possible to say that the time taken in obtaining such a copy is time "requisite" within the meaning of that expression in sub-s.2 of S. 12. Exclusion of the time required in obtaining a copy of the order therefore can only be allowed if and only if, such a copy is either required to be annexed or in any event is in fact annexed to the petition for leave to appeal11. These observations were an answer to the contention that no time could be requisite for obtaining something not requisite. The legislature allowed the exclusion even though the rules of a Court might not require a copy to be annexed to the memorandum of appeal for a party who intends to file an appeal may desire to examine the decree or the judgment before he launches a further proceeding. Therefore, the exclusion was allowed irrespective of the rules of a Court which permit a party to file an appeal without annexing a certified copy of the judgment or decree or orderIn our view such a result is not to be contemplated. As the Privy Council has laid down the provisions of S. 12 (2) and (3) are a positive direction excluding the time taken in obtaining a copy of the judgment and decree or order as the case may be and those provisions are irrespective of the Code of Civil Procedure or the rules made by a Court under S. 122 of the Code. Such rules if they permit a memorandum of appeal to be filed without annexing thereto a copy of the judgment or decree or order confer a privilege on a would-be appellant but do not govern the positive direction contained in S. 12.The High Court in this view, therefore, was not right in dismissing the petitioners application for leave to appeal on the ground that it was barred by limitation. | 1 | 3,858 | 936 | ### 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.
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the order or judgment the appellant would not be entitled to exclusion of time as such time would not be " requisite" time within the meaning of S. 12 (2) and the High Court was therefore right in dismissing the appeal as being beyond time. The Privy Council disagreed with this contention holding that S. 12 contained a positive direction for exclusion of time and that such direction applied irrespective of whether the rules permitted the filing of an appeal or an application without annexing the copy of the order or judgment. The Privy Council emphasised that the positive direction contained in S. 12 was unconditional inasmuch as there was no reference therein to the Code of Civil Procedure and the section did not say why the time was to be excluded. At p. 170 of the report (Ind app): (at p. 105 of AIR) the Privy council observed:"If, indeed, it could be shown that in some particular class of cases there could be no object in obtaining the two documents, an argument might be offered that no time could be requisite for obtaining something not requisite. But this is not so. The decree may be complicated, and it may be open to draw it up in two different ways, and the practitioner may well want to see its form before attacking it by his memorandum of appeal. As to the judgment, no doubt when the case does not come from up country, the practitioner will have heard it delivered, but he may not carry all the points of a long judgment in his memory, and as Sir John Edge says, the Legislature may not wish him to hurry to make a decision till he has well considered it." 11. These observations were an answer to the contention that no time could be requisite for obtaining something not requisite. The legislature allowed the exclusion even though the rules of a Court might not require a copy to be annexed to the memorandum of appeal for a party who intends to file an appeal may desire to examine the decree or the judgment before he launches a further proceeding. Therefore, the exclusion was allowed irrespective of the rules of a Court which permit a party to file an appeal without annexing a certified copy of the judgment or decree or order. 12. In imperial Bucket Co. v. Smt. Bhagwati Basak AIR 1954 Cal 520 there are however observations to the effect that an appellant will have the benefit of S. 12 in a case where he has annexed to the memorandum of appeal a certified copy of the judgment appealed from even though by the statute under which the appeal is filed, no certified copy of the order appealed from is required. This decision does not necessarily mean that where a copy is applied for and obtained but not annexed the time in obtaining it was for a thing not requisite. As the Privy Council observed, a party might like to examine the judgment or the decree or the order before he challenged it in a higher forum. Though the judgment states that such time would be excluded where the copy is annexed, it does not lay down that there can be no exclusion of time where it is not annexed. But in Gangaram v. Beharilal, AIR 1952 Bhopal 39 a view has been taken that sub-ss. 2 and 3 of S. 12 would only be attracted when a copy of the judgment or decree or order appealed from accompanies the application for review. This view is not in consonance with and in fact is contrary to the interpretation of S. 12 by the Privy Council in Surtys Case, 55 Ind. App. 161: (AIR 1928 P. C. 103) (supra) and is therefore unwarranted. The same must also be said of Abdul Aziz v. Jai Ram, AIR 1951 Him Pra 67. As observed by the Privy Council in Surtys case, 55 Ind App 161: (AIR 1928 PC 103 ) (supra) the view of the High Courts of Bombay, Calcutta and Allahabad as expressed in Haji Hassum v. Noor Mohammad, (1904) ILR 28 Bom 643, Kalipada Karmakar v. Shekharbasini Dasya, 24 Cal LJ 235: (AIR 1917 Cal 320) and Waid Ali Shah v. Nawal Kishore, (1895) ILR 17 All 213 was that an appellant was entitled to exclusion of time in obtaining a copy of a judgment and decree even though the rules permit him to file the appeal without annexing such a copy. The view contended for on behalf of the respondents is thus not only contrary to the decision of the Privy Council but if accepted would lead to a somewhat surprising result, viz., that if the petitioners had waited till the copy of the order was furnished to them, their application would have been in time or if they had withdrawn their application and filed a fresh one or amended their application and annexed the copy of the order such a fresh application, or such amended application which in its unamended form was in their view time barred would have been well within the period of limitation. In our view such a result is not to be contemplated. As the Privy Council has laid down the provisions of S. 12 (2) and (3) are a positive direction excluding the time taken in obtaining a copy of the judgment and decree or order as the case may be and those provisions are irrespective of the Code of Civil Procedure or the rules made by a Court under S. 122 of the Code. Such rules if they permit a memorandum of appeal to be filed without annexing thereto a copy of the judgment or decree or order confer a privilege on a would-be appellant but do not govern the positive direction contained in S. 12.The High Court in this view, therefore, was not right in dismissing the petitioners application for leave to appeal on the ground that it was barred by limitation.
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On a plain reading of these sub-sections, it is clear that the time for obtaining the certified copy of both the judgment and the decree or order as the case may be, must be excluded while computing the period of limitation. The object of the exclusion is to enable the person desiring to appeal to consider the terms of the decree, judgment and order before he decides to launch a further proceeding in respect of it7. Two views were, however, canvassed before us on the construction of S. 12. One was that the right of exclusion of time is qualified by the words "time requisite for obtaining a copy of the decree, sentence or order" in sub-section 2. Therefore, if an application for leave to appeal does not require a certified copy of the order in question to be annexed to the application it is not possible to say that the time required for obtaining such a copy was requisite. In such cases the time in obtaining copy would not be requisite time and consequently the applicant would not be entitled to exclude the time taken in obtaining the certified copy of the order. Certain decisions of some of the High Courts have also taken the view that such an applicant would not be entitled to the benefit of the sub-section where a copy of the decree, judgment or order is not actually annexed to the application or the memorandum of appeal. The other view is that sub-ss. 2 and 3 of S. 12 enact the rule of exclusion as a positive direction. The object of the sub-section being to afford a party opportunity to consider his position even where a certified copy of the judgment gives all the necessary information enabling the party to decide to proceed further or not, he would nevertheless be entitled to exclude the time for obtaining the certified copy of the decree or order. It has been held in some decisions that even in cases where it is not necessary to prepare a formal order, if such an order is prepared, the party would be entitled to the benefit of exclusion of time taken in preparing and furnishing a copy thereof where it is applied forRule 4, in Chapter XXXIII - A of the Rules of the High Court requires that an application for leave to appeal shall be made by a notice of motion before the appellate Court and shall be presented in the prescribed form, viz.; Form No. 3. That form does not require that a certified copy of the judgment and/or decree or order need be annexed to such an application. The rule and the form thus enable a party to file an application for a certificate without annexing either a copy of a judgment or a copy of an order. But that does not mean that the rule and the form lay down any mandatory direction that a copy either of the order or of the judgment shall not be annexed. The rule and the form thus do not assist or further the argument urged by counsel for the respondents10. In regard to his first contention the learned counsel for the respondents urged that sub-ss. 2 and 3 of S. 12 would not apply where it is not necessary to annex a copy of the judgment or order. For, in such a case it is not possible to say that the time taken in obtaining such a copy is time "requisite" within the meaning of that expression in sub-s.2 of S. 12. Exclusion of the time required in obtaining a copy of the order therefore can only be allowed if and only if, such a copy is either required to be annexed or in any event is in fact annexed to the petition for leave to appeal11. These observations were an answer to the contention that no time could be requisite for obtaining something not requisite. The legislature allowed the exclusion even though the rules of a Court might not require a copy to be annexed to the memorandum of appeal for a party who intends to file an appeal may desire to examine the decree or the judgment before he launches a further proceeding. Therefore, the exclusion was allowed irrespective of the rules of a Court which permit a party to file an appeal without annexing a certified copy of the judgment or decree or orderIn our view such a result is not to be contemplated. As the Privy Council has laid down the provisions of S. 12 (2) and (3) are a positive direction excluding the time taken in obtaining a copy of the judgment and decree or order as the case may be and those provisions are irrespective of the Code of Civil Procedure or the rules made by a Court under S. 122 of the Code. Such rules if they permit a memorandum of appeal to be filed without annexing thereto a copy of the judgment or decree or order confer a privilege on a would-be appellant but do not govern the positive direction contained in S. 12.The High Court in this view, therefore, was not right in dismissing the petitioners application for leave to appeal on the ground that it was barred by limitation.
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State Of Rajasthan Vs. Naresh @ Ram Naresh | that witness was present in the field near the place of occurrence, there was no occasion as to why she would not have seen the alleged actual occurrence. If the accused committed the offence he must have stayed at the place of occurrence for a very long time as it is alleged that the accused had amputated both feet of the deceased and a pair of silver anklets of feet, one pair of silver bracelets of hands, one pair of silver ear-rings and one golden nose-ring (nath) were allegedly taken away by him. When the allegation is that of amputation of both the feet by use of a Khurpi the same must have taken considerable time during the course of which the said witness (PW-4) would have seen the occurrence itself. There is also no explanation from PW4 as to why she turned her back when she saw accused washing him hands. She does not state that she had seen the deceased with the accused nor does she state that she had seen the accused smeared with mud. 20. There is not even a single statement coming from any of the witnesses that they had seen any water being smeared with blood of the deceased or any soil of the field being smeared with human blood. Some of the witnesses have stated that accused was smeared with mud when he was returning from the field whereas Mathura (PW-4) does not say so. She only states that she saw him running from the fields. It is also not known why the said witness had turned her back towards the accused only because the accused was washing his hands. If accused was washing his hands as stated by Mathura (PW-4) there is no likelihood of body of the accused being smeared with mud as alleged by some of the prosecution witnesses (PWs 7 & 8). 21. The learned trial court also held accused guilty because the strap of wristwatch was found near the dead body of the deceased, which allegedly belong to the accused. On scrutiny of the evidence, we do not find any such direct evidence that the said strap of wristwatch belongs to the watch of the accused. None of the witnesses stated that such strap of wristwatch belongs to the accused nor any wristwatch has been recovered from the accused. So far the time of occurrence is concerned there is also no unanimity and the evidence is scanty regarding the time of occurrence. In our considered opinion, the evidence regarding commission of offence by the accused in the field and also amputation of legs of the deceased is neither cogent nor reliable, and therefore, those circumstances cannot be relied upon for basing conviction of the respondent. 22. So far the circumstance about the recovery of ornaments is concerned, the star witness in that regard is PW-20. The said ornaments were recovered at the instance of accused from the custody and possession of PW-20. We have very carefully analysed the evidence of PW-20 so as to find out the credibility of the said witness. He had stated in his examination-in-chief that the accused came to him saying that he wanted to sell the jewellery of his house. The said witness, however, stated that they did not purchase such jewellery, which was, however, seized later on from him. He stated in his cross-examination that they do the business for making new ornaments from the old ornaments. He also stated that the said jewellery was not for their use and hence they refused to purchase. He also stated that Naresh/accused himself is a gold smith hence he used to come to him earlier also. He also stated that Naresh asked him to keep the jewellery and told that he would come back soon, and therefore, he kept the said jewellery and that on the same day accused took away his ornaments. If the accused has taken away the jewellery on the same day then how could the police recover the same jewellery from the custody and possession of PW-20. Besides, since he had stated that he would not purchase the jewellery there was no occasion for Naresh to keep that jewellery with PW-20. In the disclosure statements the accused stated that he sold the jewellery to Ram Chandra Saraf whereas the same was recovered from PW-20. On scrutinizing the evidence, we find that the aforesaid recovery of jewellery is shrouded in a total mystery as it was not recovered from the place and person to whom allegedly accused sold. 23. So far recovery of Khurpi is concerned the same admittedly did not contain any bloodstains on it and it was recovered from an open place. Since there was no bloodstain on it, the police also did not send it for chemical examination. Therefore, it cannot be said that the said weapon was used for committing murder of the deceased. There could be some suspicion regarding the conduct of the accused at the time of occurrence but the same cannot in any manner conclusively prove and establish that the accused has committed the murder of the deceased. Unless and until we are satisfied that the evidence adduced clearly and pointedly establish the guilt of the accused we cannot pass an order of conviction by setting aside the order of acquittal. 24. The view that is taken by the High Court is found to be a plausible view, and therefore, the benefit must always go to the accused and not to the prosecution. If the prosecution wants to prove the fact, the same must be proved by leading evidence, which is reliable and trustworthy, which pinpoints and conclusively proves the guilt of the accused. This is not a case where we can safely hold that the evidence led was trustworthy and conclusively establishes that it is the accused only, who had committed the offence. Considering the entire facts and circumstances of the case we are not inclined to interfere with the order of acquittal. | 0[ds]19. When we examine the present case in the light of the background of the aforesaid legal principles, we find that none of the circumstances relied upon by the prosecution stands proved against the accused leading to a definite conclusion that it was the accused, who had committed the offence. It has come on evidence that deceased went towards the field on 12.08.1993 at about 3 oclock and that accused Naresh also went to the field with ain his hand. However, such a statement appears not to have been made before the police and the same was found to be an improvement by the High Court and recorded so in the Judgment. Mathura) has stated in her deposition that she had gone to thefor feeding the cattle. She has also stated that when she was sitting at the field for drinking water to cattle, she saw accused Naresh was running towards the village and that accused was having awith him and also one, she stated that she had seen the accused sitting at theand that she had turned her back towards accused/Naresh because accused was washing his hands. If that witness was present in the field near the place of occurrence, there was no occasion as to why she would not have seen the alleged actual occurrence. If the accused committed the offence he must have stayed at the place of occurrence for a very long time as it is alleged that the accused had amputated both feet of the deceased and a pair of silver anklets of feet, one pair of silver bracelets of hands, one pair of silverg (nath) were allegedly taken away by him. When the allegation is that of amputation of both the feet by use of athe same must have taken considerable time during the course of which the said witness) would have seen the occurrence itself. There is also no explanation from PW4 as to why she turned her back when she saw accused washing him hands. She does not state that she had seen the deceased with the accused nor does she state that she had seen the accused smeared with mud20. There is not even a single statement coming from any of the witnesses that they had seen any water being smeared with blood of the deceased or any soil of the field being smeared with human blood. Some of the witnesses have stated that accused was smeared with mud when he was returning from the field whereas Mathura) does not say so. She only states that she saw him running from the fields. It is also not known why the said witness had turned her back towards the accused only because the accused was washing his hands. If accused was washing his hands as stated by Mathura) there is no likelihood of body of the accused being smeared with mud as alleged by some of the prosecution witnesses (PWs 7 & 8)21. The learned trial court also held accused guilty because the strap of wristwatch was found near the dead body of the deceased, which allegedly belong to the accused. On scrutiny of the evidence, we do not find any such direct evidence that the said strap of wristwatch belongs to the watch of the accused. None of the witnesses stated that such strap of wristwatch belongs to the accused nor any wristwatch has been recovered from the accused. So far the time of occurrence is concerned there is also no unanimity and the evidence is scanty regarding the time of occurrence. In our considered opinion, the evidence regarding commission of offence by the accused in the field and also amputation of legs of the deceased is neither cogent nor reliable, and therefore, those circumstances cannot be relied upon for basing conviction of the respondent22. So far the circumstance about the recovery of ornaments is concerned, the star witness in that regard is. The said ornaments were recovered at the instance of accused from the custody and possession of. We have very carefully analysed the evidence of0 so as to find out the credibility of the said witness. He had stated in hisf that the accused came to him saying that he wanted to sell the jewellery of his house. The said witness, however, stated that they did not purchase such jewellery, which was, however, seized later on from him. He stated in hisn that they do the business for making new ornaments from the old ornaments. He also stated that the said jewellery was not for their use and hence they refused to purchase. He also stated that Naresh/accused himself is a gold smith hence he used to come to him earlier also. He also stated that Naresh asked him to keep the jewellery and told that he would come back soon, and therefore, he kept the said jewellery and that on the same day accused took away his ornaments. If the accused has taken away the jewellery on the same day then how could the police recover the same jewellery from the custody and possession of. Besides, since he had stated that he would not purchase the jewellery there was no occasion for Naresh to keep that jewellery with. In the disclosure statements the accused stated that he sold the jewellery to Ram Chandra Saraf whereas the same was recovered from. On scrutinizing the evidence, we find that the aforesaid recovery of jewellery is shrouded in a total mystery as it was not recovered from the place and person to whom allegedly accused sold23. So far recovery ofis concerned the same admittedly did not contain any bloodstains on it and it was recovered from an open place. Since there was no bloodstain on it, the police also did not send it for chemical examination. Therefore, it cannot be said that the said weapon was used for committing murder of the deceased. There could be some suspicion regarding the conduct of the accused at the time of occurrence but the same cannot in any manner conclusively prove and establish that the accused has committed the murder of the deceased. Unless and until we are satisfied that the evidence adduced clearly and pointedly establish the guilt of the accused we cannot pass an order of conviction by setting aside the order of acquittal24. The view that is taken by the High Court is found to be a plausible view, and therefore, the benefit must always go to the accused and not to the prosecution. If the prosecution wants to prove the fact, the same must be proved by leading evidence, which is reliable and trustworthy, which pinpoints and conclusively proves the guilt of the accused. This is not a case where we can safely hold that the evidence led was trustworthy and conclusively establishes that it is the accused only, who had committed the offence. Considering the entire facts and circumstances of the case we are not inclined to interfere with the order of acquittal. | 0 | 4,533 | 1,255 | ### 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.
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that witness was present in the field near the place of occurrence, there was no occasion as to why she would not have seen the alleged actual occurrence. If the accused committed the offence he must have stayed at the place of occurrence for a very long time as it is alleged that the accused had amputated both feet of the deceased and a pair of silver anklets of feet, one pair of silver bracelets of hands, one pair of silver ear-rings and one golden nose-ring (nath) were allegedly taken away by him. When the allegation is that of amputation of both the feet by use of a Khurpi the same must have taken considerable time during the course of which the said witness (PW-4) would have seen the occurrence itself. There is also no explanation from PW4 as to why she turned her back when she saw accused washing him hands. She does not state that she had seen the deceased with the accused nor does she state that she had seen the accused smeared with mud. 20. There is not even a single statement coming from any of the witnesses that they had seen any water being smeared with blood of the deceased or any soil of the field being smeared with human blood. Some of the witnesses have stated that accused was smeared with mud when he was returning from the field whereas Mathura (PW-4) does not say so. She only states that she saw him running from the fields. It is also not known why the said witness had turned her back towards the accused only because the accused was washing his hands. If accused was washing his hands as stated by Mathura (PW-4) there is no likelihood of body of the accused being smeared with mud as alleged by some of the prosecution witnesses (PWs 7 & 8). 21. The learned trial court also held accused guilty because the strap of wristwatch was found near the dead body of the deceased, which allegedly belong to the accused. On scrutiny of the evidence, we do not find any such direct evidence that the said strap of wristwatch belongs to the watch of the accused. None of the witnesses stated that such strap of wristwatch belongs to the accused nor any wristwatch has been recovered from the accused. So far the time of occurrence is concerned there is also no unanimity and the evidence is scanty regarding the time of occurrence. In our considered opinion, the evidence regarding commission of offence by the accused in the field and also amputation of legs of the deceased is neither cogent nor reliable, and therefore, those circumstances cannot be relied upon for basing conviction of the respondent. 22. So far the circumstance about the recovery of ornaments is concerned, the star witness in that regard is PW-20. The said ornaments were recovered at the instance of accused from the custody and possession of PW-20. We have very carefully analysed the evidence of PW-20 so as to find out the credibility of the said witness. He had stated in his examination-in-chief that the accused came to him saying that he wanted to sell the jewellery of his house. The said witness, however, stated that they did not purchase such jewellery, which was, however, seized later on from him. He stated in his cross-examination that they do the business for making new ornaments from the old ornaments. He also stated that the said jewellery was not for their use and hence they refused to purchase. He also stated that Naresh/accused himself is a gold smith hence he used to come to him earlier also. He also stated that Naresh asked him to keep the jewellery and told that he would come back soon, and therefore, he kept the said jewellery and that on the same day accused took away his ornaments. If the accused has taken away the jewellery on the same day then how could the police recover the same jewellery from the custody and possession of PW-20. Besides, since he had stated that he would not purchase the jewellery there was no occasion for Naresh to keep that jewellery with PW-20. In the disclosure statements the accused stated that he sold the jewellery to Ram Chandra Saraf whereas the same was recovered from PW-20. On scrutinizing the evidence, we find that the aforesaid recovery of jewellery is shrouded in a total mystery as it was not recovered from the place and person to whom allegedly accused sold. 23. So far recovery of Khurpi is concerned the same admittedly did not contain any bloodstains on it and it was recovered from an open place. Since there was no bloodstain on it, the police also did not send it for chemical examination. Therefore, it cannot be said that the said weapon was used for committing murder of the deceased. There could be some suspicion regarding the conduct of the accused at the time of occurrence but the same cannot in any manner conclusively prove and establish that the accused has committed the murder of the deceased. Unless and until we are satisfied that the evidence adduced clearly and pointedly establish the guilt of the accused we cannot pass an order of conviction by setting aside the order of acquittal. 24. The view that is taken by the High Court is found to be a plausible view, and therefore, the benefit must always go to the accused and not to the prosecution. If the prosecution wants to prove the fact, the same must be proved by leading evidence, which is reliable and trustworthy, which pinpoints and conclusively proves the guilt of the accused. This is not a case where we can safely hold that the evidence led was trustworthy and conclusively establishes that it is the accused only, who had committed the offence. Considering the entire facts and circumstances of the case we are not inclined to interfere with the order of acquittal.
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stated that she had seen the accused sitting at theand that she had turned her back towards accused/Naresh because accused was washing his hands. If that witness was present in the field near the place of occurrence, there was no occasion as to why she would not have seen the alleged actual occurrence. If the accused committed the offence he must have stayed at the place of occurrence for a very long time as it is alleged that the accused had amputated both feet of the deceased and a pair of silver anklets of feet, one pair of silver bracelets of hands, one pair of silverg (nath) were allegedly taken away by him. When the allegation is that of amputation of both the feet by use of athe same must have taken considerable time during the course of which the said witness) would have seen the occurrence itself. There is also no explanation from PW4 as to why she turned her back when she saw accused washing him hands. She does not state that she had seen the deceased with the accused nor does she state that she had seen the accused smeared with mud20. There is not even a single statement coming from any of the witnesses that they had seen any water being smeared with blood of the deceased or any soil of the field being smeared with human blood. Some of the witnesses have stated that accused was smeared with mud when he was returning from the field whereas Mathura) does not say so. She only states that she saw him running from the fields. It is also not known why the said witness had turned her back towards the accused only because the accused was washing his hands. If accused was washing his hands as stated by Mathura) there is no likelihood of body of the accused being smeared with mud as alleged by some of the prosecution witnesses (PWs 7 & 8)21. The learned trial court also held accused guilty because the strap of wristwatch was found near the dead body of the deceased, which allegedly belong to the accused. On scrutiny of the evidence, we do not find any such direct evidence that the said strap of wristwatch belongs to the watch of the accused. None of the witnesses stated that such strap of wristwatch belongs to the accused nor any wristwatch has been recovered from the accused. So far the time of occurrence is concerned there is also no unanimity and the evidence is scanty regarding the time of occurrence. In our considered opinion, the evidence regarding commission of offence by the accused in the field and also amputation of legs of the deceased is neither cogent nor reliable, and therefore, those circumstances cannot be relied upon for basing conviction of the respondent22. So far the circumstance about the recovery of ornaments is concerned, the star witness in that regard is. The said ornaments were recovered at the instance of accused from the custody and possession of. We have very carefully analysed the evidence of0 so as to find out the credibility of the said witness. He had stated in hisf that the accused came to him saying that he wanted to sell the jewellery of his house. The said witness, however, stated that they did not purchase such jewellery, which was, however, seized later on from him. He stated in hisn that they do the business for making new ornaments from the old ornaments. He also stated that the said jewellery was not for their use and hence they refused to purchase. He also stated that Naresh/accused himself is a gold smith hence he used to come to him earlier also. He also stated that Naresh asked him to keep the jewellery and told that he would come back soon, and therefore, he kept the said jewellery and that on the same day accused took away his ornaments. If the accused has taken away the jewellery on the same day then how could the police recover the same jewellery from the custody and possession of. Besides, since he had stated that he would not purchase the jewellery there was no occasion for Naresh to keep that jewellery with. In the disclosure statements the accused stated that he sold the jewellery to Ram Chandra Saraf whereas the same was recovered from. On scrutinizing the evidence, we find that the aforesaid recovery of jewellery is shrouded in a total mystery as it was not recovered from the place and person to whom allegedly accused sold23. So far recovery ofis concerned the same admittedly did not contain any bloodstains on it and it was recovered from an open place. Since there was no bloodstain on it, the police also did not send it for chemical examination. Therefore, it cannot be said that the said weapon was used for committing murder of the deceased. There could be some suspicion regarding the conduct of the accused at the time of occurrence but the same cannot in any manner conclusively prove and establish that the accused has committed the murder of the deceased. Unless and until we are satisfied that the evidence adduced clearly and pointedly establish the guilt of the accused we cannot pass an order of conviction by setting aside the order of acquittal24. The view that is taken by the High Court is found to be a plausible view, and therefore, the benefit must always go to the accused and not to the prosecution. If the prosecution wants to prove the fact, the same must be proved by leading evidence, which is reliable and trustworthy, which pinpoints and conclusively proves the guilt of the accused. This is not a case where we can safely hold that the evidence led was trustworthy and conclusively establishes that it is the accused only, who had committed the offence. Considering the entire facts and circumstances of the case we are not inclined to interfere with the order of acquittal.
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DAKSHIN HARYANA BIJLI VITRAN NIGAM LTD Vs. M/S NAVIGANT TECHNOLOGIES PVT. LTD | view was taken by the majority arbitrators which, therefore, could not be interfered with, given the parameters of challenge to arbitral awards. The learned Single Judge also went on to hold that the New Series published by the Ministry could be applied in the case of the appellant as the base indices for 2004-2005 under the New Series were available. Having so held, the learned Single Judge stated that even though the view expressed in the dissenting award is more appealing, and that he preferred that view, yet he found that since the majority award is a possible view, the scope of interference being limited, the Section 34 petition was dismissed. A Section 37 appeal to the Division Bench of the Delhi High Court yielded the same result, by the impugned judgment dated 3-4-2017 [Ssangyong Engg. and Construction Co. Ltd. v. NHAI, 2017 SCC OnLine Del 7864 : (2017) 240 DLT 711] This Court set aside the award. However, in paragraph 77 of the Judgment, the Court held as under : 77. The judgments of the Single Judge [Ssangyong Engg. and Construction Co. Ltd. v. NHAI, 2016 SCC OnLine Del 4536] and of the Division Bench [Ssangyong Engg. and Construction Co. Ltd. v. NHAI, 2017 SCC OnLine Del 7864 : (2017) 240 DLT 711] of the Delhi High Court are set aside. Consequently, the majority award is also set aside. Under the scheme of Section 34 of the 1996 Act, the disputes that were decided by the majority award would have to be referred afresh to another arbitration. This would cause considerable delay and be contrary to one of the important objectives of the 1996 Act, namely, speedy resolution of disputes by the arbitral process under the Act. Therefore, in order to do complete justice between the parties, invoking our power under Article 142 of the Constitution of India, and given the fact that there is a minority award which awards the appellant its claim based upon the formula mentioned in the agreement between the parties, we uphold the minority award, and state that it is this award, together with interest, that will now be executed between the parties. The minority award, in paras 11 and 12, states as follows: 11. I therefore award the claim of the claimant in full. 12. Costs — no amount is awarded to the parties. Each party shall bear its own cost. In Ssangyong, this Court upheld the view taken by the dissenting arbitrator in exercise of its powers under Article 142 of the Constitution, in order to do complete justice between the parties. The reason for doing so is mentioned in paragraph 77 i.e. the considerable delay which would be caused if another arbitration was to be held. This Court exercised its extraordinary power in Ssangyong keeping in mind the facts of the case, and the object of expeditious resolution of disputes under the Arbitration Act. (f) In law, where the Court sets aside the award passed by the majority members of the tribunal, the underlying disputes would require to be decided afresh in an appropriate proceeding. Under Section 34 of the Arbitration Act, the Court may either dismiss the objections filed, and uphold the award, or set aside the award if the grounds contained in sub-sections (2) and (2A) are made out. There is no power to modify an arbitral award. In McDermott International Inc. v. Burn Standard Co. Ltd., this Court held as under : 52. The 1996 Act makes provision for the supervisory role of courts, for the review of the arbitral award only to ensure fairness. Intervention of the court is envisaged in few circumstances only, like, in case of fraud or bias by the arbitrators, violation of natural justice, etc. The court cannot correct errors of the arbitrators. It can only quash the award leaving the parties free to begin the arbitration again if it is desired. So, the scheme of the provision aims at keeping the supervisory role of the court at minimum level and this can be justified as parties to the agreement make a conscious decision to exclude the courts jurisdiction by opting for arbitration as they prefer the expediency and finality offered by it. 5. Applying the law to the facts of the present case, we find from a perusal of the arbitral proceedings that even though the award was pronounced on 27.04.2018, the signed copy of the award was provided to the parties only on 19.05.2018. The procedural orders of the tribunal reveal that on 27.04.2018, only a copy the award was provided to the parties to point out any computation error, any clerical or typographical error, or any other error of similar nature which may have occurred in the award on the next date. It was also recorded that the third arbitrator had dissented, and would be delivering his separate opinion. The proceedings were then posted for 12.05.2018. On 12.05.2018, the third arbitrator pronounced his dissenting opinion. On that date, the tribunal posted the matter to 19.05.2018, to enable the parties to point out any typographical or clerical mistakes in the dissenting opinion, and for handing over the original record of the proceedings to the parties. On 19.05.2018, the signed copy of the award and the dissenting opinion, alongwith the original record, were handed over to the parties, as also to each of the arbitrators. The tribunal ordered the termination of the proceedings 6. We are of the considered opinion that the period of limitation for filing objections would have to be reckoned from the date on which the signed copy of the award was made available to the parties i.e. on 19.05.2018 in the instant case. 7. It is the admitted position that the objections were filed within the period of limitation prescribed by Section 34(3) of the Act, if reckoned from 19.05.2018. Undisputedly, in the instant case, the objections have been filed within the period of limitation prescribed under Section 34(3) from the date of receipt of the signed award | 1[ds]The statute recognises only one arbitral award being passed by an arbitral tribunal, which may either be a unanimous award, or an award passed by a majority in the case of a panel of members. An award is a binding decision made by the arbitrator/s on all the issues referred for adjudication. The award contains the reasons assigned by the tribunal on the adjudication of the rights and obligations of the parties arising from the underlying commercial contract. The award must be one which decides all the issues referred for arbitration. The view of a dissenting arbitrator is not an award, but his opinion. However, a party aggrieved by the award, may draw support from the reasoning and findings assigned in the dissenting opinion.Section 35 provides that an arbitral award shall be final and binding on the parties and persons claiming under them. A dissenting opinion does not determine the rights or liabilities of the parties which are enforceable under Section 36 of the Act.(v) The reference to the phrase arbitral award in Sections 34 and 36 refers to the decision of the majority of the members of the arbitral tribunal. A party cannot file a petition u/S. 34 for setting aside, or u/S. 36 for enforcement of a dissenting opinion. What is capable of being set aside u/S. 34 is the arbitral award i.e. the decision reached by the majority of members of the tribunal. Similarly, u/S. 36 what can be enforced is the arbitral award passed by the majority of the members.The statute makes it obligatory for each of the members of the tribunal to sign the award, to make it a valid award. The usage of the term shall makes it a mandatory requirement. It is not merely a ministerial act, or an empty formality which can be dispensed with.(ix) Sub-section (1) of Section 31 read with sub-section (4) makes it clear that the Act contemplates a single date on which the arbitral award is passed i.e. the date on which the signed copy of the award is delivered to the parties. Section 31 (5) enjoins upon the arbitrator / tribunal to provide the signed copy of the arbitral award to the parties. The receipt of a signed copy of the award is the date from which the period of limitation for filing objections u/S. 34 would commence.(x) In Union of India v. Tecco Trichy Engineers & Contractors (2005) 4 SCC 239 . , a three-judge bench of this Court held that the period of limitation for filing an application u/S. 34 would commence only after a valid delivery of the award takes place u/S. 31(5) of the Act. In para 8, it was held as under :8. The delivery of an arbitral award under sub-section (5) of Section 31 is not a matter of mere formality. It is a matter of substance. It is only after the stage under Section 31 has passed that the stage of termination of arbitral proceedings within the meaning of Section 32 of the Act arises. The delivery of arbitral award to the party, to be effective, has to be received by the party. This delivery by the Arbitral Tribunal and receipt by the party of the award sets in motion several periods of limitation such as an application for correction and interpretation of an award within 30 days under Section 33(1), an application for making an additional award under Section 33(4) and an application for setting aside an award under Section 34(3) and so on. As this delivery of the copy of award has the effect of conferring certain rights on the party as also bringing to an end the right to exercise those rights on expiry of the prescribed period of limitation which would be calculated from that date, the delivery of the copy of award by the Tribunal and the receipt thereof by each party constitutes an important stage in the arbitral proceedings.(xi) The judgment in Tecco Trichy Engineers (supra) was followed in State of Maharashtra v. Ark Builders, (2011) 4 SCC 616 wherein this Court held that Section 31(1) obliges the members of the arbitral tribunal to make the award in writing and sign it. The legal requirement under sub-section (5) of Section 31 is the delivery of a copy of the award signed by the members of the arbitral tribunal / arbitrator, and not any copy of the award. On a harmonious construction of Section 31(5) read with Section 34(3), the period of limitation prescribed for filing objections would commence only from the date when the signed copy of the award is delivered to the party making the application for setting aside the award. If the law prescribes that a copy of the award is to be communicated, delivered, despatched, forwarded, rendered, or sent to the parties concerned in a particular way, and since the law sets a period of limitation for challenging the award in question by the aggrieved party, then the period of limitation can only commence from the date on which the award was received by the concerned party in the manner prescribed by law(xii) In State of Himachal Pradesh v Himachal Techno Engineers,this Court held that if one of the parties to the arbitration is Government, or a statutory body, which has notified holidays, and if the award was delivered to a beldar or a watchman on a holiday or non-working day, it cannot be considered to be receipt of the award by the party concerned for the purposes of Section 31(5) of the Act. When the award is delivered, or deposited, or left in the office of a party on a non-working day, the date of physical delivery is not the date of receipt of the award by that party. For the purposes of Section 31(5), the date of receipt will have to be the next working day.(xiii) Section 32 provides that the arbitral proceedings shall be terminated after the final award is passed. With the termination of the arbitral proceedings, the mandate of the arbitral tribunal terminates, and the tribunal becomes functus officio.(xiv) In an arbitral tribunal comprising of a panel of three members, if one of the members gives a dissenting opinion, it must be delivered contemporaneously on the same date as the final award, and not on a subsequent date, as the tribunal becomes functus officio upon the passing of the final award. The period for rendering the award and dissenting opinion must be within the period prescribed by Section 29A of the Act.The period of limitation for filing the objections to the award u/S. 34 commences from the date on which the party making the application has received a signed copy of the arbitral award, as required by Section 31(5) of the 1996 Act.Section 34(3) provides a specific time limit of three months from the date of receipt of the award, and a further period of thirty days, if the Court is satisfied that the party was prevented by sufficient cause from making the application within the said period, but not thereafterIn Union of India v. Popular Construction,(2001) 8 SCC 470 . this Court held that Section 5 of the Limitation Act, 1963 would not apply to applications filed under Section 34 of the Arbitration Act. It was held that :12. As far as the language of Section 34 of the 1996 Act is concerned, the crucial words are but not thereafter used in the proviso to sub-section (3). In our opinion, this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the court could entertain an application to set aside the award beyond the extended period under the proviso, would render the phrase but not thereafter wholly otiose. No principle of interpretation would justify such a result.(xix) If the objections are not filed within the period prescribed by Section 34, the award holder is entitled to move for enforcement of the arbitral award as a deemed decree of the Court u/S. 36 of the Act.This Court in P. Radha Bai v. P. Ashok Kumar,(2019) 13 SCC 445 . held that :32.5. Once the time-limit or extended time-limit for challenging the arbitral award expires, the period for enforcing the award under Section 36 of the Arbitration Act commences. This is evident from the phrase where the time for making an application to set aside the arbitral award under Section 34 has expired. [36. Enforcement.—Where the time for making an application to set aside the arbitral award under Section 34 has expired, or such application having been made, it has been refused, the award shall be enforced under the Code of Civil Procedure, 1908 (5 of 1908) in the same manner as if it were a decree of the Court.(emphasis supplied)] There is an integral nexus between the period prescribed under Section 34(3) to challenge the award and the commencement of the enforcement period under Section 36 to execute the award.36.2. Second, extending Section 17 of the Limitation Act to Section 34 would do violence to the scheme of the Arbitration Act. As discussed above, Section 36 enables a party to apply for enforcement of award when the period for challenging an award under Section 34 has expired. However, if Section 17 were to be extended to Section 34, the determination of time for making an application to set aside the arbitral award in Section 36 will become uncertain and create confusion in the enforcement of award. This runs counter to the scheme and object of the Arbitration Act.(a) The dissenting opinion of a minority arbitrator can be relied upon by the party seeking to set aside the award to buttress its submissions in the proceedings under Section 34.(b) At the stage of judicial scrutiny by the Court under Section 34, the Court is not precluded from considering the findings and conclusions of the dissenting opinion of the minority member of the tribunal.(e) In Ssangyong Engineering & Construction Co. Ltd v. NHAI,(2019) 15 SCC 131 this Court upheld the view taken in the dissenting opinion to be the correct position in law. In this case, the Court was hearing a special leave petition from an order passed by a division bench of the Delhi High Court. This Court noted that:12. A Section 34 petition which was filed by the appellant was rejected by the learned Single Judge of the Delhi High Court, by a judgment and order dated 9- 8-2016 [ Ssangyong Engg. and Construction Co. Ltd. v. NHAI, 2016 SCC OnLine Del 4536] , in which it was held that a possible view was taken by the majority arbitrators which, therefore, could not be interfered with, given the parameters of challenge to arbitral awards. The learned Single Judge also went on to hold that the New Series published by the Ministry could be applied in the case of the appellant as the base indices for 2004-2005 under the New Series were available. Having so held, the learned Single Judge stated that even though the view expressed in the dissenting award is more appealing, and that he preferred that view, yet he found that since the majority award is a possible view, the scope of interference being limited, the Section 34 petition was dismissed. A Section 37 appeal to the Division Bench of the Delhi High Court yielded the same result, by the impugned judgment dated 3-4-2017 [Ssangyong Engg. and Construction Co. Ltd. v. NHAI, 2017 SCC OnLine Del 7864 : (2017) 240 DLT 711]This Court set aside the award. However, in paragraph 77 of the Judgment, the Court held as under :77. The judgments of the Single Judge [Ssangyong Engg. and Construction Co. Ltd. v. NHAI, 2016 SCC OnLine Del 4536] and of the Division Bench [Ssangyong Engg. and Construction Co. Ltd. v. NHAI, 2017 SCC OnLine Del 7864 : (2017) 240 DLT 711] of the Delhi High Court are set aside. Consequently, the majority award is also set aside. Under the scheme of Section 34 of the 1996 Act, the disputes that were decided by the majority award would have to be referred afresh to another arbitration. This would cause considerable delay and be contrary to one of the important objectives of the 1996 Act, namely, speedy resolution of disputes by the arbitral process under the Act. Therefore, in order to do complete justice between the parties, invoking our power under Article 142 of the Constitution of India, and given the fact that there is a minority award which awards the appellant its claim based upon the formula mentioned in the agreement between the parties, we uphold the minority award, and state that it is this award, together with interest, that will now be executed between the parties. The minority award, in paras 11 and 12, states as follows:11. I therefore award the claim of the claimant in full.12. Costs — no amount is awarded to the parties. Each party shall bear its own cost.In Ssangyong, this Court upheld the view taken by the dissenting arbitrator in exercise of its powers under Article 142 of the Constitution, in order to do complete justice between the parties. The reason for doing so is mentioned in paragraph 77 i.e. the considerable delay which would be caused if another arbitration was to be held. This Court exercised its extraordinary power in Ssangyong keeping in mind the facts of the case, and the object of expeditious resolution of disputes under the Arbitration Act.(f) In law, where the Court sets aside the award passed by the majority members of the tribunal, the underlying disputes would require to be decided afresh in an appropriate proceeding.Under Section 34 of the Arbitration Act, the Court may either dismiss the objections filed, and uphold the award, or set aside the award if the grounds contained in sub-sections (2) and (2A) are made out. There is no power to modify an arbitral award.In McDermott International Inc. v. Burn Standard Co. Ltd., this Court held as under :52. The 1996 Act makes provision for the supervisory role of courts, for the review of the arbitral award only to ensure fairness. Intervention of the court is envisaged in few circumstances only, like, in case of fraud or bias by the arbitrators, violation of natural justice, etc. The court cannot correct errors of the arbitrators. It can only quash the award leaving the parties free to begin the arbitration again if it is desired. So, the scheme of the provision aims at keeping the supervisory role of the court at minimum level and this can be justified as parties to the agreement make a conscious decision to exclude the courts jurisdiction by opting for arbitration as they prefer the expediency and finality offered by it.5. Applying the law to the facts of the present case, we find from a perusal of the arbitral proceedings that even though the award was pronounced on 27.04.2018, the signed copy of the award was provided to the parties only on 19.05.2018. The procedural orders of the tribunal reveal that on 27.04.2018, only a copythe award was provided to the parties to point out any computation error, any clerical or typographical error, or any other error of similar nature which may have occurred in the award on the next date. It was also recorded that the third arbitrator had dissented, and would be delivering his separate opinion. The proceedings were then posted for 12.05.2018.On 12.05.2018, the third arbitrator pronounced his dissenting opinion. On that date, the tribunal posted the matter to 19.05.2018, to enable the parties to point out any typographical or clerical mistakes in the dissenting opinion, and for handing over the original record of the proceedings to the parties.On 19.05.2018, the signed copy of the award and the dissenting opinion, alongwith the original record, were handed over to the parties, as also to each of the arbitrators. The tribunal ordered the termination of the proceedings6. We are of the considered opinion that the period of limitation for filing objections would have to be reckoned from the date on which the signed copy of the award was made available to the parties i.e. on 19.05.2018 in the instant case.7. It is the admitted position that the objections were filed within the period of limitation prescribed by Section 34(3) of the Act, if reckoned from 19.05.2018. Undisputedly, in the instant case, the objections have been filed within the period of limitation prescribed under Section 34(3) from the date of receipt of the signed award | 1 | 8,013 | 3,136 | ### Instruction:
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view was taken by the majority arbitrators which, therefore, could not be interfered with, given the parameters of challenge to arbitral awards. The learned Single Judge also went on to hold that the New Series published by the Ministry could be applied in the case of the appellant as the base indices for 2004-2005 under the New Series were available. Having so held, the learned Single Judge stated that even though the view expressed in the dissenting award is more appealing, and that he preferred that view, yet he found that since the majority award is a possible view, the scope of interference being limited, the Section 34 petition was dismissed. A Section 37 appeal to the Division Bench of the Delhi High Court yielded the same result, by the impugned judgment dated 3-4-2017 [Ssangyong Engg. and Construction Co. Ltd. v. NHAI, 2017 SCC OnLine Del 7864 : (2017) 240 DLT 711] This Court set aside the award. However, in paragraph 77 of the Judgment, the Court held as under : 77. The judgments of the Single Judge [Ssangyong Engg. and Construction Co. Ltd. v. NHAI, 2016 SCC OnLine Del 4536] and of the Division Bench [Ssangyong Engg. and Construction Co. Ltd. v. NHAI, 2017 SCC OnLine Del 7864 : (2017) 240 DLT 711] of the Delhi High Court are set aside. Consequently, the majority award is also set aside. Under the scheme of Section 34 of the 1996 Act, the disputes that were decided by the majority award would have to be referred afresh to another arbitration. This would cause considerable delay and be contrary to one of the important objectives of the 1996 Act, namely, speedy resolution of disputes by the arbitral process under the Act. Therefore, in order to do complete justice between the parties, invoking our power under Article 142 of the Constitution of India, and given the fact that there is a minority award which awards the appellant its claim based upon the formula mentioned in the agreement between the parties, we uphold the minority award, and state that it is this award, together with interest, that will now be executed between the parties. The minority award, in paras 11 and 12, states as follows: 11. I therefore award the claim of the claimant in full. 12. Costs — no amount is awarded to the parties. Each party shall bear its own cost. In Ssangyong, this Court upheld the view taken by the dissenting arbitrator in exercise of its powers under Article 142 of the Constitution, in order to do complete justice between the parties. The reason for doing so is mentioned in paragraph 77 i.e. the considerable delay which would be caused if another arbitration was to be held. This Court exercised its extraordinary power in Ssangyong keeping in mind the facts of the case, and the object of expeditious resolution of disputes under the Arbitration Act. (f) In law, where the Court sets aside the award passed by the majority members of the tribunal, the underlying disputes would require to be decided afresh in an appropriate proceeding. Under Section 34 of the Arbitration Act, the Court may either dismiss the objections filed, and uphold the award, or set aside the award if the grounds contained in sub-sections (2) and (2A) are made out. There is no power to modify an arbitral award. In McDermott International Inc. v. Burn Standard Co. Ltd., this Court held as under : 52. The 1996 Act makes provision for the supervisory role of courts, for the review of the arbitral award only to ensure fairness. Intervention of the court is envisaged in few circumstances only, like, in case of fraud or bias by the arbitrators, violation of natural justice, etc. The court cannot correct errors of the arbitrators. It can only quash the award leaving the parties free to begin the arbitration again if it is desired. So, the scheme of the provision aims at keeping the supervisory role of the court at minimum level and this can be justified as parties to the agreement make a conscious decision to exclude the courts jurisdiction by opting for arbitration as they prefer the expediency and finality offered by it. 5. Applying the law to the facts of the present case, we find from a perusal of the arbitral proceedings that even though the award was pronounced on 27.04.2018, the signed copy of the award was provided to the parties only on 19.05.2018. The procedural orders of the tribunal reveal that on 27.04.2018, only a copy the award was provided to the parties to point out any computation error, any clerical or typographical error, or any other error of similar nature which may have occurred in the award on the next date. It was also recorded that the third arbitrator had dissented, and would be delivering his separate opinion. The proceedings were then posted for 12.05.2018. On 12.05.2018, the third arbitrator pronounced his dissenting opinion. On that date, the tribunal posted the matter to 19.05.2018, to enable the parties to point out any typographical or clerical mistakes in the dissenting opinion, and for handing over the original record of the proceedings to the parties. On 19.05.2018, the signed copy of the award and the dissenting opinion, alongwith the original record, were handed over to the parties, as also to each of the arbitrators. The tribunal ordered the termination of the proceedings 6. We are of the considered opinion that the period of limitation for filing objections would have to be reckoned from the date on which the signed copy of the award was made available to the parties i.e. on 19.05.2018 in the instant case. 7. It is the admitted position that the objections were filed within the period of limitation prescribed by Section 34(3) of the Act, if reckoned from 19.05.2018. Undisputedly, in the instant case, the objections have been filed within the period of limitation prescribed under Section 34(3) from the date of receipt of the signed award
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NHAI, 2016 SCC OnLine Del 4536] , in which it was held that a possible view was taken by the majority arbitrators which, therefore, could not be interfered with, given the parameters of challenge to arbitral awards. The learned Single Judge also went on to hold that the New Series published by the Ministry could be applied in the case of the appellant as the base indices for 2004-2005 under the New Series were available. Having so held, the learned Single Judge stated that even though the view expressed in the dissenting award is more appealing, and that he preferred that view, yet he found that since the majority award is a possible view, the scope of interference being limited, the Section 34 petition was dismissed. A Section 37 appeal to the Division Bench of the Delhi High Court yielded the same result, by the impugned judgment dated 3-4-2017 [Ssangyong Engg. and Construction Co. Ltd. v. NHAI, 2017 SCC OnLine Del 7864 : (2017) 240 DLT 711]This Court set aside the award. However, in paragraph 77 of the Judgment, the Court held as under :77. The judgments of the Single Judge [Ssangyong Engg. and Construction Co. Ltd. v. NHAI, 2016 SCC OnLine Del 4536] and of the Division Bench [Ssangyong Engg. and Construction Co. Ltd. v. NHAI, 2017 SCC OnLine Del 7864 : (2017) 240 DLT 711] of the Delhi High Court are set aside. Consequently, the majority award is also set aside. Under the scheme of Section 34 of the 1996 Act, the disputes that were decided by the majority award would have to be referred afresh to another arbitration. This would cause considerable delay and be contrary to one of the important objectives of the 1996 Act, namely, speedy resolution of disputes by the arbitral process under the Act. Therefore, in order to do complete justice between the parties, invoking our power under Article 142 of the Constitution of India, and given the fact that there is a minority award which awards the appellant its claim based upon the formula mentioned in the agreement between the parties, we uphold the minority award, and state that it is this award, together with interest, that will now be executed between the parties. The minority award, in paras 11 and 12, states as follows:11. I therefore award the claim of the claimant in full.12. Costs — no amount is awarded to the parties. Each party shall bear its own cost.In Ssangyong, this Court upheld the view taken by the dissenting arbitrator in exercise of its powers under Article 142 of the Constitution, in order to do complete justice between the parties. The reason for doing so is mentioned in paragraph 77 i.e. the considerable delay which would be caused if another arbitration was to be held. This Court exercised its extraordinary power in Ssangyong keeping in mind the facts of the case, and the object of expeditious resolution of disputes under the Arbitration Act.(f) In law, where the Court sets aside the award passed by the majority members of the tribunal, the underlying disputes would require to be decided afresh in an appropriate proceeding.Under Section 34 of the Arbitration Act, the Court may either dismiss the objections filed, and uphold the award, or set aside the award if the grounds contained in sub-sections (2) and (2A) are made out. There is no power to modify an arbitral award.In McDermott International Inc. v. Burn Standard Co. Ltd., this Court held as under :52. The 1996 Act makes provision for the supervisory role of courts, for the review of the arbitral award only to ensure fairness. Intervention of the court is envisaged in few circumstances only, like, in case of fraud or bias by the arbitrators, violation of natural justice, etc. The court cannot correct errors of the arbitrators. It can only quash the award leaving the parties free to begin the arbitration again if it is desired. So, the scheme of the provision aims at keeping the supervisory role of the court at minimum level and this can be justified as parties to the agreement make a conscious decision to exclude the courts jurisdiction by opting for arbitration as they prefer the expediency and finality offered by it.5. Applying the law to the facts of the present case, we find from a perusal of the arbitral proceedings that even though the award was pronounced on 27.04.2018, the signed copy of the award was provided to the parties only on 19.05.2018. The procedural orders of the tribunal reveal that on 27.04.2018, only a copythe award was provided to the parties to point out any computation error, any clerical or typographical error, or any other error of similar nature which may have occurred in the award on the next date. It was also recorded that the third arbitrator had dissented, and would be delivering his separate opinion. The proceedings were then posted for 12.05.2018.On 12.05.2018, the third arbitrator pronounced his dissenting opinion. On that date, the tribunal posted the matter to 19.05.2018, to enable the parties to point out any typographical or clerical mistakes in the dissenting opinion, and for handing over the original record of the proceedings to the parties.On 19.05.2018, the signed copy of the award and the dissenting opinion, alongwith the original record, were handed over to the parties, as also to each of the arbitrators. The tribunal ordered the termination of the proceedings6. We are of the considered opinion that the period of limitation for filing objections would have to be reckoned from the date on which the signed copy of the award was made available to the parties i.e. on 19.05.2018 in the instant case.7. It is the admitted position that the objections were filed within the period of limitation prescribed by Section 34(3) of the Act, if reckoned from 19.05.2018. Undisputedly, in the instant case, the objections have been filed within the period of limitation prescribed under Section 34(3) from the date of receipt of the signed award
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Commissioner Of Income-Tax, Bombay City , Bombay Vs. Bai Shirinbai K. Kooka | taken to the House of Lords. The House of Lords decided in favour of the Crown, Lord Oaksey dissenting. Viscount Simonds thus expressed his views in his speech at page 299 of the report:"But it appears to me that when it has been admitted or determined that an article forms part of the stock-in-trade of the trader, and that upon his parting with it so that it no longer forms part of his stock-in-trade some sum must appear in his trading account as having been received in respect of it, the only logical way to treat it is to regard it as having been disposed of by way of trade. If so, I see no reason for ascribing to it any other sum than that which he would normally have received for it in the due course of trade, that is to say, the market value. As I have already indicated, there seems to me to be no justification for the only alternative that has been suggested, namely, the cost of production. The unreality of this alternative would be plain to the tax-payer, if, as well might happen, a very large service fee had been paid so that the cost of production was high and the market value did not equal it." 11. Lord Radcliffe pointed out that when a horse was transferred from the stud farm to the owners personal account, there was a disposition of trading stock, though the disposition might not be by way of trade. He then referred to three methods of recording the result of the disposition in the stud farm trading accounts. One of them was that there might be no entry of a receipt at all and Lord Radcliffe pointed out that this method would give the self-supplier an unfair tax advantage. The second method would be to enter the cost price; this again would be fictional because, no sale in the legal sense had taken place, nor had there been any actual receipt. The third method was to enter as a receipt a figure equivalent to the current realisable value of the stock item transferred. Lord Radcliffe gave two grounds in favour of the third method. The first ground was that it gave a fairer measure of assessable trading profit as between one tax-payer and another, for it eliminated variations which were due to no other cause than any one taxpayer decision as to what proportion of his total product he would supply to himself. The second ground was that it was better economics to credit the trading owner with the current realisable value of any stock which he had chosen to dispose of without commercial disposal than to credit him with an amount equivalent to the accumulated expenses in respect of that stock. 12. It is worthy of note that the facts in (1955) 36 Tax Cas 275, were similar to the facts of Kikabhais case, AIR 1953 SC 509 . In both those cases what had happened was that a part of the stock- in-trade was withdrawn and the question was at what figure in the trading accounts the withdrawal should be accounted for. In Kikabhais case. AIR 1953 SC 509 this Court came to the conclusion that the withdrawal should be at the cost price. In (1955) 36 Tax Cas 275, the House of Lords held that the proper figure should be the market value which gave; a fairer measure of assessable trading profit it is significant that the House of Lords reached that conclusion not without dissent. If the facts of the case which we are now considering were similar to the facts of Kikabhais case, AIR 1953 SC 509 it might have been necessary for us to re-examine the ratio of that decision. It is necessary to state here, however, that the decision of the House of Lords in (1955) 36 Tax Cas 275, is not an authority which is binding on us. It is only an authority of persuasive value entitled to great respect. 13. In an earlier part of this judgment we have taken pains to point out the distinction between Kikabhais case, AIR 1953 SC 509 and the case under our consideration. In view of that distinction, we do not think that it is really necessary in the present case to re-examine the ratio of the decision in Kikabhais case. AIR 1953 SC 509 . What then is the basis for computing the actual profits in the present case? We think that the basis must be, as the High Court has put it, the ordinary commercial principles on which actual profits are computed. We think that the approach of the High Court was correct and normally the commercial profits out of the transaction of sale of an article must be the difference between what the article cost the business and what it fetched on sale. So far as the business or trading activity was concerned, the market value of the shares as on April 1, 1945 was what it cost the business. We do not think that there is any question of notional sale here. The High Court did not create any legal fiction of a sale when it took the market value as on April 1, 1945 as the proper figure for determining the actual profits made by the assessee. That the assessee later sold the shares in pursuance of a trading activity was not in dispute; that sale was an actual sale and not a notional sale; that actual sale resulted in some profits. The problem is how should those profits be computed? To adopt the language of Lord Radcliffe, the only fair measure of assessing trading profits in such circumstances is to take the market value at one end and the actual sale proceeds at the other, the difference between the two being the profit or loss as the case may be. In a trading or commercial sense this seems to us to accord more with reality than with fiction. 14. | 1[ds]7. We propose now to examine these arguments in some detail.The question raised is a short question but a difficult one to order to examine the arguments urged on behalf of the appellant, it is necessary first to refer to the decision of this Court in Kikabhais case 1954 SCR 219: (AIR 1953 SC509). Thefacts of that case were these. The assesses there was a dealer in silver and shares and he maintained his accounts according to the mercantile system and valued his stock at cost price both in the beginning and at the end of the year. During the relevant accounting year he withdrew some silver bars and shares from the business and settled them on certain trusts in which he was the managing trustee and in his books of account he credited the business with the cost price of the silver bars and shares so withdrawn. Thex authorities assessed him to tax on the basis of the difference between the cost price of the silver bars and shares and their market value at the date of their withdrawal from the business. The High Court of Bombay upheld the action of thex authorities. The Court, however, by a majority decision came to the conclusion that the assessee was entitled to value the silver bars and shares withdrawn at cost price and was not bound to credit the business with their market value at the close of the year for ascertaining the assessable profits for the year. Bhagwati, J. who expressed the dissentient view said that so far as the business was concerned, it made no difference whether thee was realised or withdrawn from the business and the business was entitled to be credited with the market value of the assets withdrawn as at the date of the withdrawal, whatever be the method employed by the assessee for the valuation of itse on hand at he close of the year. The majority view was expressed by Bose, J., who dealt with the two contentions of the learned Attorney General who appeared for the Revenue (respondent) in that case. The Attorney Generals first contention was that as the silver bars and shares were brought into the business, any withdrawal of them from the business must be dealt with along ordinary andn business lines, namely, that if a person withdraws an asset from a business must account for it to the business at the market rate prevailing at the date of the withdrawal8. From what has been stated above it would at once appear that Kikabhais case, 1954 SCR 219: (AIR 1953 SC 509 ) was the converse of the present case. In Kikabhais case 1954 SCR 219:(AIR l953 SC 509) a part of thee was withdrawn from business; there was no sale nor any actual profit. The ratio of the decision was simply this: under thex Act the State has no power to tax a potential future advantage and all it can tax is income, profits and gains made in the relevant accounting year. In the case under our consideration the admitted position is that there has been a sale of the shares in pursuance of a trading or business activity and actual profits have resulted from the sale. The question in the present case is not whether the State has a power to tax potential future advantage, but the question is how should actual profits be computed when admittedly there has been a sale in the business sense and actual profits have resulted therefrom. We agree with the High Court that in this respect there is a vital difference between the problem presented by Kikabhais case 1954 SCR 219: (AIR 1953 SC 509 ) and the problem in the present case. We further agree with the view expressed by the High Court that the ratio in Kikacabhais case 1954 SCR 219: (AIR 1953 SC 509 ) need not necessarily be extended to the very different problem presented in the present case, not only because the facts are different, but because there is an appreciable difference in principle. The difference lies in this: in one case there is no question of any business sale or actual profits and in the other admittedly there are profits liable to tax, but the question is how the profits should be computed. We must, therefore, overrule the first two arguments of the learned Additional Solicitor General that the distinction draws by the High Court between Kikabhais case, 1954 SCR 219: (AIR 1953 SC 509 ) and the present case is not warranted on principle and that the ratio of the decision in Kikabhais case, 1954 SCR 219: (AIR 1953 SC 509 ) must necessarily apply to the present case alsoIt is worthy of note that the facts in (1955) 36 Tax Cas 275, were similar to the facts of Kikabhais case, AIR 1953 SC 509 . In both those cases what had happened was that a part of the stocke was withdrawn and the question was at what figure in the trading accounts the withdrawal should be accounted for. In Kikabhais case. AIR 1953 SC 509 this Court came to the conclusion that the withdrawal should be at the cost price. In (1955) 36 Tax Cas 275, the House of Lords held that the proper figure should be the market value which gave; a fairer measure of assessable trading profit it is significant that the House of Lords reached that conclusion not without dissent. If the facts of the case which we are now considering were similar to the facts of Kikabhais case, AIR 1953 SC 509 it might have been necessary for us toe the ratio of that decision. It is necessary to state here, however, that the decision of the House of Lords in (1955) 36 Tax Cas 275, is not an authority which is binding on us. It is only an authority of persuasive value entitled to great respectIn an earlier part of this judgment we have taken pains to point out the distinction between Kikabhais case, AIR 1953 SC 509 and the case under our consideration. In view of that distinction, we do not think that it is really necessary in the present case toe the ratio of the decision in Kikabhais case. AIR 1953 SC 509 . What then is the basis for computing the actual profits in the present case? We think that the basis must be, as the High Court has put it, the ordinary commercial principles on which actual profits are computed. We think that the approach of the High Court was correct and normally the commercial profits out of the transaction of sale of an article must be the difference between what the article cost the business and what it fetched on sale. So far as the business or trading activity was concerned, the market value of the shares as on April 1, 1945 was what it cost the business. We do not think that there is any question of notional sale here. The High Court did not create any legal fiction of a sale when it took the market value as on April 1, 1945 as the proper figure for determining the actual profits made by the assessee. That the assessee later sold the shares in pursuance of a trading activity was not in dispute; that sale was an actual sale and not a notional sale; that actual sale resulted in some profits. The problem is how should those profits be computed? To adopt the language of Lord Radcliffe, the only fair measure of assessing trading profits in such circumstances is to take the market value at one end and the actual sale proceeds at the other, the difference between the two being the profit or loss as the case may be. In a trading or commercial sense this seems to us to accord more with reality than with fictionThat is the first question which I propose to discuss.The assessee inKikabhais case was a dealer in shares and silver. The method employed by him in keeping his accounts was to enter the cost price of his stock at the beginning of the year, to credit the sale proceeds of the stock sold during the year and value the unsold stock at the end of the year at cost price, these latter being carried forward as the opening entries of the next years accounts. It appeared that the assessee had withdrawn some silver and shares from his business and settled these upon certain trusts. In the accounts he entered the silver and shares so withdrawn at their cost price. The State contended that these should have been entered in the accounts at their market value on the date they were withdrawn from the business. This Court found this contention unacceptable and held that the entry should be of the cost price and not of the market value on that dateIt was also said that to apply the principle that one cannot trade with himself to the present case would be overlooking the actual fact that moneys worth was brought into the business. I am unable to appreciate this contention. There is no overlooking of the moneys worth brought in, for that moneys worth is value at the cost at which the stock concerned was actually acquired from the market, may be as an investment and not as a stock in trade. I am unable to appreciate how it can be said that any moneys worth would be, I will assume, no businessman will do in calculating his profitsif the share are not valued at the market value of the day on which they are brought into the trade but are valued at the price at which actually they had been previously acquired by the assessee. The real question is what were the shares worth in money for calculating the profits. The contention of the respondent assumes that the moneys worth must be calculated as on the date of the commencement of the trade and hence really begs the questionA second reason which appears only in the judgment of Lord Radcliffe is that if the market value on the date of withdrawal is not entered, there will be aninequitable distribution of the burden oftax. This is not very clear to me. Learned advocate for the assessee said that Lord Radcliffe was contemplating the case of two traders who started their business on the same day one of whom bought his stock in trade from the market on that date, of course at the market value, and the other started his business by converting what he was earlier holding for his personal purpose, into stock in trade. It was said that unless the latter was permitted to value his stock in trade at the market rate on the date of conversion, he would be subjected to a tax different in amount from that of the tax on the former and this would result ininequitable distribution of the burden oftaxation. Again, I am not convinced that this reasoning is conclusive. Take the case of two traders. One by his shrewd business method or by friendly contacts, or may be by means not very creditable may on the same day acquire goods necessary for his trade at a much cheaper rate than the other. The profits of the two would then be different. I do not imagine that anyx law would find this objectionable. Furthermore, I am not sure that this anxiety for an equitable distribution of the burden of tax justifies departure from a cardinal rule which is accepted in many cases in England also, that a man cannot be said to trade with himself so as to make taxable profitsLord Radcliffe realised the difficulty of the problem which he had to solve and said so. I do not think I will be wrong in saying that he put his decision on the ground of the best practical solution of that difficulty. The majority judgment in Sharkeys case does not lead me to the conclusion that our decision in Kikabhais case, 1954 SCR 219: (AIR 1953 SC 509 ) was wrong. I respectfully prefer the view taken in Kikabhais case, 1954 SCR 219: (AIR 1953 SC 509 ) and by Lord Oaksey in Sharkeys case, (1955) 36 Tax Cas 275. Bhagwati J. in his minority judgment in Kikabhais case, 1954 SCR 219: (AIR 1953 SC 509 ) based himself on the arguments of the Attorney General. It is not necessary to specifically deal with his views for they have been dealt with in that case and with what has been said there I am in complete agreemente leaving Sharkeys case it would be of some interest to point out that Lord Simonds did not think that any distinction was Possible between the case that he had before him and a case like the one now before us for he said:"And so also, as I have more than once pointed out in this case, it is conceded by thetaxpayerthat some figure must appear in the stud farm accounts as receipt in respect of the transferred horses, though Lady Zia in her capacity as transferee did not carry on a taxable activity. In the same way, it would I suppose, be claimed that, if Lady Zia were to transfer or retransfer a horse from her racing establishment to her stud farm some figure would have to appear in the stud farm accounts in respect of that horse though it cost her nothing to make the transfer. If it were not so and she subsequently sold the transferred horse and the proceeds of sale were treated as receipts of the stud farm, she could justly complain that she had been charged with a fictitious profit."In the course of arguments a case was suggested of a man who had inherited or received by way of gift a certain commodity with which after a lapse of sometime be started a trade. It was said that it would be impossible in such a case to say that the cost of acquisition of hise was nil and the entire sale proceeds received by him in respect of that thing in his trade were his profits. Now, it seems to me that even if it were so, it would not follow that hise had to be valued at the date on which he started his trade with that. So to hold would be against Kikabhais case, 1954 SCR 219: (AIR 1953 SC 509 ). That being so, this illustration would only beg the question and not prove that Kikabhais case, 1954 SCR 219: (AIR 1953 SC 509 ) is wrong. I think a businessman would in such a case enter into his accounts as the price for which he acquired hise its value in the market on the date on which he received it free That would not involve going against Kikabhais case, 1954 SCR 219: (AIR 1953 SC 509 ) for it would not be based on a fictional trading by a man with himself. If you cannot distinguish a business from its proprietor, then the cost of a thing for the purpose of the business would be its value at the time the proprietor of the business acquired it. Such value from a businessmans point of view would in my opinion be the value for which he acquired it when did so for value, or its market value on the date of acquisition, when he paid no value for it. | 1 | 4,964 | 2,785 | ### 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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taken to the House of Lords. The House of Lords decided in favour of the Crown, Lord Oaksey dissenting. Viscount Simonds thus expressed his views in his speech at page 299 of the report:"But it appears to me that when it has been admitted or determined that an article forms part of the stock-in-trade of the trader, and that upon his parting with it so that it no longer forms part of his stock-in-trade some sum must appear in his trading account as having been received in respect of it, the only logical way to treat it is to regard it as having been disposed of by way of trade. If so, I see no reason for ascribing to it any other sum than that which he would normally have received for it in the due course of trade, that is to say, the market value. As I have already indicated, there seems to me to be no justification for the only alternative that has been suggested, namely, the cost of production. The unreality of this alternative would be plain to the tax-payer, if, as well might happen, a very large service fee had been paid so that the cost of production was high and the market value did not equal it." 11. Lord Radcliffe pointed out that when a horse was transferred from the stud farm to the owners personal account, there was a disposition of trading stock, though the disposition might not be by way of trade. He then referred to three methods of recording the result of the disposition in the stud farm trading accounts. One of them was that there might be no entry of a receipt at all and Lord Radcliffe pointed out that this method would give the self-supplier an unfair tax advantage. The second method would be to enter the cost price; this again would be fictional because, no sale in the legal sense had taken place, nor had there been any actual receipt. The third method was to enter as a receipt a figure equivalent to the current realisable value of the stock item transferred. Lord Radcliffe gave two grounds in favour of the third method. The first ground was that it gave a fairer measure of assessable trading profit as between one tax-payer and another, for it eliminated variations which were due to no other cause than any one taxpayer decision as to what proportion of his total product he would supply to himself. The second ground was that it was better economics to credit the trading owner with the current realisable value of any stock which he had chosen to dispose of without commercial disposal than to credit him with an amount equivalent to the accumulated expenses in respect of that stock. 12. It is worthy of note that the facts in (1955) 36 Tax Cas 275, were similar to the facts of Kikabhais case, AIR 1953 SC 509 . In both those cases what had happened was that a part of the stock- in-trade was withdrawn and the question was at what figure in the trading accounts the withdrawal should be accounted for. In Kikabhais case. AIR 1953 SC 509 this Court came to the conclusion that the withdrawal should be at the cost price. In (1955) 36 Tax Cas 275, the House of Lords held that the proper figure should be the market value which gave; a fairer measure of assessable trading profit it is significant that the House of Lords reached that conclusion not without dissent. If the facts of the case which we are now considering were similar to the facts of Kikabhais case, AIR 1953 SC 509 it might have been necessary for us to re-examine the ratio of that decision. It is necessary to state here, however, that the decision of the House of Lords in (1955) 36 Tax Cas 275, is not an authority which is binding on us. It is only an authority of persuasive value entitled to great respect. 13. In an earlier part of this judgment we have taken pains to point out the distinction between Kikabhais case, AIR 1953 SC 509 and the case under our consideration. In view of that distinction, we do not think that it is really necessary in the present case to re-examine the ratio of the decision in Kikabhais case. AIR 1953 SC 509 . What then is the basis for computing the actual profits in the present case? We think that the basis must be, as the High Court has put it, the ordinary commercial principles on which actual profits are computed. We think that the approach of the High Court was correct and normally the commercial profits out of the transaction of sale of an article must be the difference between what the article cost the business and what it fetched on sale. So far as the business or trading activity was concerned, the market value of the shares as on April 1, 1945 was what it cost the business. We do not think that there is any question of notional sale here. The High Court did not create any legal fiction of a sale when it took the market value as on April 1, 1945 as the proper figure for determining the actual profits made by the assessee. That the assessee later sold the shares in pursuance of a trading activity was not in dispute; that sale was an actual sale and not a notional sale; that actual sale resulted in some profits. The problem is how should those profits be computed? To adopt the language of Lord Radcliffe, the only fair measure of assessing trading profits in such circumstances is to take the market value at one end and the actual sale proceeds at the other, the difference between the two being the profit or loss as the case may be. In a trading or commercial sense this seems to us to accord more with reality than with fiction. 14.
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profitsif the share are not valued at the market value of the day on which they are brought into the trade but are valued at the price at which actually they had been previously acquired by the assessee. The real question is what were the shares worth in money for calculating the profits. The contention of the respondent assumes that the moneys worth must be calculated as on the date of the commencement of the trade and hence really begs the questionA second reason which appears only in the judgment of Lord Radcliffe is that if the market value on the date of withdrawal is not entered, there will be aninequitable distribution of the burden oftax. This is not very clear to me. Learned advocate for the assessee said that Lord Radcliffe was contemplating the case of two traders who started their business on the same day one of whom bought his stock in trade from the market on that date, of course at the market value, and the other started his business by converting what he was earlier holding for his personal purpose, into stock in trade. It was said that unless the latter was permitted to value his stock in trade at the market rate on the date of conversion, he would be subjected to a tax different in amount from that of the tax on the former and this would result ininequitable distribution of the burden oftaxation. Again, I am not convinced that this reasoning is conclusive. Take the case of two traders. One by his shrewd business method or by friendly contacts, or may be by means not very creditable may on the same day acquire goods necessary for his trade at a much cheaper rate than the other. The profits of the two would then be different. I do not imagine that anyx law would find this objectionable. Furthermore, I am not sure that this anxiety for an equitable distribution of the burden of tax justifies departure from a cardinal rule which is accepted in many cases in England also, that a man cannot be said to trade with himself so as to make taxable profitsLord Radcliffe realised the difficulty of the problem which he had to solve and said so. I do not think I will be wrong in saying that he put his decision on the ground of the best practical solution of that difficulty. The majority judgment in Sharkeys case does not lead me to the conclusion that our decision in Kikabhais case, 1954 SCR 219: (AIR 1953 SC 509 ) was wrong. I respectfully prefer the view taken in Kikabhais case, 1954 SCR 219: (AIR 1953 SC 509 ) and by Lord Oaksey in Sharkeys case, (1955) 36 Tax Cas 275. Bhagwati J. in his minority judgment in Kikabhais case, 1954 SCR 219: (AIR 1953 SC 509 ) based himself on the arguments of the Attorney General. It is not necessary to specifically deal with his views for they have been dealt with in that case and with what has been said there I am in complete agreemente leaving Sharkeys case it would be of some interest to point out that Lord Simonds did not think that any distinction was Possible between the case that he had before him and a case like the one now before us for he said:"And so also, as I have more than once pointed out in this case, it is conceded by thetaxpayerthat some figure must appear in the stud farm accounts as receipt in respect of the transferred horses, though Lady Zia in her capacity as transferee did not carry on a taxable activity. In the same way, it would I suppose, be claimed that, if Lady Zia were to transfer or retransfer a horse from her racing establishment to her stud farm some figure would have to appear in the stud farm accounts in respect of that horse though it cost her nothing to make the transfer. If it were not so and she subsequently sold the transferred horse and the proceeds of sale were treated as receipts of the stud farm, she could justly complain that she had been charged with a fictitious profit."In the course of arguments a case was suggested of a man who had inherited or received by way of gift a certain commodity with which after a lapse of sometime be started a trade. It was said that it would be impossible in such a case to say that the cost of acquisition of hise was nil and the entire sale proceeds received by him in respect of that thing in his trade were his profits. Now, it seems to me that even if it were so, it would not follow that hise had to be valued at the date on which he started his trade with that. So to hold would be against Kikabhais case, 1954 SCR 219: (AIR 1953 SC 509 ). That being so, this illustration would only beg the question and not prove that Kikabhais case, 1954 SCR 219: (AIR 1953 SC 509 ) is wrong. I think a businessman would in such a case enter into his accounts as the price for which he acquired hise its value in the market on the date on which he received it free That would not involve going against Kikabhais case, 1954 SCR 219: (AIR 1953 SC 509 ) for it would not be based on a fictional trading by a man with himself. If you cannot distinguish a business from its proprietor, then the cost of a thing for the purpose of the business would be its value at the time the proprietor of the business acquired it. Such value from a businessmans point of view would in my opinion be the value for which he acquired it when did so for value, or its market value on the date of acquisition, when he paid no value for it.
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Munni Singh Vs. State Of Bihar | P.Ws 2 and 11. 7. We have already given a condensed version of Dhaniram Singh, P.W.11. Now according to the Hira Singh P.W.2, his house is 4-5 houses away from the house of the complainant and when he became awake on hearing the noise he went to see the occurrence taking a torch which kept lighting. According to him he hid himself behind a Bahaya tree and from where he could keep watching the activities of the dacoits whose faces he saw. As he says he could identify 8 dacoits. These were Munni Singh, Fekoo Singh Dadan Singh, Guput Singh and Behari Singh appellants as respectively armed. In addition there were Sukhari Singh (since deceased), Ram Naresh Singh and Kanhiya Singh who are no longer in the picture. After the departure of the dacoits he went close to the scene and found Khobari Singh to have been hit by gun shots and that his condition at that time was serious. Then he went in the company of P.W. 11 firstly towards the hospital and then to the police Station. According to this witness though he focussed the torch for 3 or 4 minutes before he went in hiding, the focus did not fall on the faces of the dacoits and after having gone in hiding he had not lit his torch. Yet he claims that he had identified the dacoits in the torch light. He is also certain that no dacoit had muffled his face. The appellants, according to him, had painted their faces but were not in a position to conceal their identity. He admitted that 3 or 4 day prior to the incident, a Panchayat had been convened in which Sukhari Singh was asked to surrender the Tank but he said he would if Khobari Singh demolishes and surrenders the house built on the bank of the Tank first. And further that when the Panchayat told Sukhari Singh that the house having been there for a long time, could not be demolished and even Khobari Singh was not agreeable to do so, all were angry with the accused persons on account of the Tank. 8. So far as Dhaniram Singh, P.W.11 is concerned, he too admits about the convening of the Panchayat 3 or 4 days earlier on which account Sukhari Singh had nursed an angry feeling due to the happenings in the Panchayat. With regard to the actual occurrence, P.W. 11 says that when the first shot aimed at him had not hit him, and the second shot had been fired at his uncle, he then ran 25-30 steps and hid himself in the field of the wheat crop and while running he heard the firing of the third shot. At that juncture he claimed to have kept lighting his torch now and then from the place of his hiding to see what was happening. The point which rises for consideration is whether P.Ws2 and 11 could individually, with the aid of their respective torches, identify the dacoits which were 25-30 in number and would the dacoits let them be identified by letting them switch on their torches off and on as claimed ? Would these two witnesses not have attracted attention of the dacoits to be taken care of in priority in their place of hiding ? It seems to us that seeing the formidable force of the dacoits and their number these two P.Ws. would have been so nonpulsed that they would not have dared to betray their presence by switching on and off their torches especially when they were unarmed and were no match to the might of the dacoits. These two witnesses do not claim that they could identify the dacoits by means other than their torches. This part of the story of the prosecution obviously does not inspire confidence. It is also worthy of notice that P.W.11 was injured on the head before he ran for safety. That was enough to shake and frighten him. But before the receipt of such injury he claims to have switched on his torch first and to have seen in the first glimpse the appellants and others. But his flash of the torch was met instantaneously with numerous torch flashes by the dacoits and it was like day light as said by P.W.1 Bishwanath Chaubey. It is difficult in this situation to believe P.W. 11 that he could in a split second have such a perception so as to identify all the five appellants and some others, It is obvious and natural that behind a lit torch darkness prevails hiding the identify of the torch bearer and persons situated close. So identity of the dacoits was not possible by P.W.11 Moreover it is understandable that when the dacoits had chosen dark hours for committing the dacoity, obviously to take advantage of the darkness, and when they were 25-30 in number, most of them unknown persons, where was the need for the appellants to be in the forefront to risk themselves for identification. This view we are entertaining apart from what the High Court has opined that muffling of faces and concealment of identify by dacoits is not universally paractised. Thus in the facts and circumstances of the case, we entertain a grave doubt about the participation of the appellants in the crime because of the failure of the prosecution to lead convincing evidence about the identity of the appellants as dacoits. There is even no corroboration worth the name in the form of recovery of fire arms and other weapons, or of the looted articles from the appellants, so as to lend some assurance to the participation of the appellants in the crime. It may well be that the motive asserted by the prosecution relating to the dispute about the pond may have given cause to Dhaniram Singh, P.W.11 to assume that the appellants were responsible for the dacoity committed in his house and for Hira Singh P.W. 2, to entertain that belief in a sweep. | 1[ds]seems to us that seeing the formidable force of the dacoits and their number these two P.Ws. would have been so nonpulsed that they would not have dared to betray their presence by switching on and off their torches especially when they were unarmed and were no match to the might of the dacoits. These two witnesses do not claim that they could identify the dacoits by means other than their torches. This part of the story of the prosecution obviously does not inspire confidence. It is also worthy of notice that P.W.11 was injured on the head before he ran for safety. That was enough to shake and frighten him. But before the receipt of such injury he claims to have switched on his torch first and to have seen in the first glimpse the appellants and others. But his flash of the torch was met instantaneously with numerous torch flashes by the dacoits and it was like day light as said by P.W.1 Bishwanath Chaubey. It is difficult in this situation to believe P.W. 11 that he could in a split second have such a perception so as to identify all the five appellants and some others, It is obvious and natural that behind a lit torch darkness prevails hiding the identify of the torch bearer and persons situated close. So identity of the dacoits was not possible by P.W.11 Moreover it is understandable that when the dacoits had chosen dark hours for committing the dacoity, obviously to take advantage of the darkness, and when they were 25-30 in number, most of them unknown persons, where was the need for the appellants to be in the forefront to risk themselves for identification. This view we are entertaining apart from what the High Court has opined that muffling of faces and concealment of identify by dacoits is not universally paractised. Thus in the facts and circumstances of the case, we entertain a grave doubt about the participation of the appellants in the crime because of the failure of the prosecution to lead convincing evidence about the identity of the appellants as dacoits. There is even no corroboration worth the name in the form of recovery of fire arms and other weapons, or of the looted articles from the appellants, so as to lend some assurance to the participation of the appellants in the crime. It may well be that the motive asserted by the prosecution relating to the dispute about the pond may have given cause to Dhaniram Singh, P.W.11 to assume that the appellants were responsible for the dacoity committed in his house and for Hira Singh P.W. 2, to entertain that belief in a sweep. | 1 | 2,887 | 478 | ### 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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P.Ws 2 and 11. 7. We have already given a condensed version of Dhaniram Singh, P.W.11. Now according to the Hira Singh P.W.2, his house is 4-5 houses away from the house of the complainant and when he became awake on hearing the noise he went to see the occurrence taking a torch which kept lighting. According to him he hid himself behind a Bahaya tree and from where he could keep watching the activities of the dacoits whose faces he saw. As he says he could identify 8 dacoits. These were Munni Singh, Fekoo Singh Dadan Singh, Guput Singh and Behari Singh appellants as respectively armed. In addition there were Sukhari Singh (since deceased), Ram Naresh Singh and Kanhiya Singh who are no longer in the picture. After the departure of the dacoits he went close to the scene and found Khobari Singh to have been hit by gun shots and that his condition at that time was serious. Then he went in the company of P.W. 11 firstly towards the hospital and then to the police Station. According to this witness though he focussed the torch for 3 or 4 minutes before he went in hiding, the focus did not fall on the faces of the dacoits and after having gone in hiding he had not lit his torch. Yet he claims that he had identified the dacoits in the torch light. He is also certain that no dacoit had muffled his face. The appellants, according to him, had painted their faces but were not in a position to conceal their identity. He admitted that 3 or 4 day prior to the incident, a Panchayat had been convened in which Sukhari Singh was asked to surrender the Tank but he said he would if Khobari Singh demolishes and surrenders the house built on the bank of the Tank first. And further that when the Panchayat told Sukhari Singh that the house having been there for a long time, could not be demolished and even Khobari Singh was not agreeable to do so, all were angry with the accused persons on account of the Tank. 8. So far as Dhaniram Singh, P.W.11 is concerned, he too admits about the convening of the Panchayat 3 or 4 days earlier on which account Sukhari Singh had nursed an angry feeling due to the happenings in the Panchayat. With regard to the actual occurrence, P.W. 11 says that when the first shot aimed at him had not hit him, and the second shot had been fired at his uncle, he then ran 25-30 steps and hid himself in the field of the wheat crop and while running he heard the firing of the third shot. At that juncture he claimed to have kept lighting his torch now and then from the place of his hiding to see what was happening. The point which rises for consideration is whether P.Ws2 and 11 could individually, with the aid of their respective torches, identify the dacoits which were 25-30 in number and would the dacoits let them be identified by letting them switch on their torches off and on as claimed ? Would these two witnesses not have attracted attention of the dacoits to be taken care of in priority in their place of hiding ? It seems to us that seeing the formidable force of the dacoits and their number these two P.Ws. would have been so nonpulsed that they would not have dared to betray their presence by switching on and off their torches especially when they were unarmed and were no match to the might of the dacoits. These two witnesses do not claim that they could identify the dacoits by means other than their torches. This part of the story of the prosecution obviously does not inspire confidence. It is also worthy of notice that P.W.11 was injured on the head before he ran for safety. That was enough to shake and frighten him. But before the receipt of such injury he claims to have switched on his torch first and to have seen in the first glimpse the appellants and others. But his flash of the torch was met instantaneously with numerous torch flashes by the dacoits and it was like day light as said by P.W.1 Bishwanath Chaubey. It is difficult in this situation to believe P.W. 11 that he could in a split second have such a perception so as to identify all the five appellants and some others, It is obvious and natural that behind a lit torch darkness prevails hiding the identify of the torch bearer and persons situated close. So identity of the dacoits was not possible by P.W.11 Moreover it is understandable that when the dacoits had chosen dark hours for committing the dacoity, obviously to take advantage of the darkness, and when they were 25-30 in number, most of them unknown persons, where was the need for the appellants to be in the forefront to risk themselves for identification. This view we are entertaining apart from what the High Court has opined that muffling of faces and concealment of identify by dacoits is not universally paractised. Thus in the facts and circumstances of the case, we entertain a grave doubt about the participation of the appellants in the crime because of the failure of the prosecution to lead convincing evidence about the identity of the appellants as dacoits. There is even no corroboration worth the name in the form of recovery of fire arms and other weapons, or of the looted articles from the appellants, so as to lend some assurance to the participation of the appellants in the crime. It may well be that the motive asserted by the prosecution relating to the dispute about the pond may have given cause to Dhaniram Singh, P.W.11 to assume that the appellants were responsible for the dacoity committed in his house and for Hira Singh P.W. 2, to entertain that belief in a sweep.
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seems to us that seeing the formidable force of the dacoits and their number these two P.Ws. would have been so nonpulsed that they would not have dared to betray their presence by switching on and off their torches especially when they were unarmed and were no match to the might of the dacoits. These two witnesses do not claim that they could identify the dacoits by means other than their torches. This part of the story of the prosecution obviously does not inspire confidence. It is also worthy of notice that P.W.11 was injured on the head before he ran for safety. That was enough to shake and frighten him. But before the receipt of such injury he claims to have switched on his torch first and to have seen in the first glimpse the appellants and others. But his flash of the torch was met instantaneously with numerous torch flashes by the dacoits and it was like day light as said by P.W.1 Bishwanath Chaubey. It is difficult in this situation to believe P.W. 11 that he could in a split second have such a perception so as to identify all the five appellants and some others, It is obvious and natural that behind a lit torch darkness prevails hiding the identify of the torch bearer and persons situated close. So identity of the dacoits was not possible by P.W.11 Moreover it is understandable that when the dacoits had chosen dark hours for committing the dacoity, obviously to take advantage of the darkness, and when they were 25-30 in number, most of them unknown persons, where was the need for the appellants to be in the forefront to risk themselves for identification. This view we are entertaining apart from what the High Court has opined that muffling of faces and concealment of identify by dacoits is not universally paractised. Thus in the facts and circumstances of the case, we entertain a grave doubt about the participation of the appellants in the crime because of the failure of the prosecution to lead convincing evidence about the identity of the appellants as dacoits. There is even no corroboration worth the name in the form of recovery of fire arms and other weapons, or of the looted articles from the appellants, so as to lend some assurance to the participation of the appellants in the crime. It may well be that the motive asserted by the prosecution relating to the dispute about the pond may have given cause to Dhaniram Singh, P.W.11 to assume that the appellants were responsible for the dacoity committed in his house and for Hira Singh P.W. 2, to entertain that belief in a sweep.
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Krishna Mohan Medical College And Hospital Vs. Union Of India | deficiency relating to faculty and residents, was each in excess of 30%, in terms of the Regulations, the petitioners are not entitled to establish and/or continue its college/institution thereunder and thus the impugned order is unassailable in law and on facts. 18. The contrasting assertions have received our due consideration. The impugned order dated 10.08.2017, it cannot be gainsaid, has to be assuredly tested on the touchstone of the operative directions contained in this Courts order dated 01.08.2017 remanding the issue involved to the Central Government for a fresh consideration on merits after affording opportunity of hearing to the petitioner college/institution. As would be patent from the order presently under scrutiny, the Hearing Committee and for that matter, the Central Government had focused only on two aspects namely, non-cooperation of the petitioner college/institution in the proposed inspection on 09.12.2016 and the subsisting deficiencies relating to faculty and residents, which allegedly is each in excess of 30%. There is no indication whatsoever as to whether the Hearing Committee/the Central Government had, as directed by this Court, re-appraised/reexamined the recommendations views of the MCI, Hearing Committee, DGHS and the Oversight Committee, as available on records. The materials intended by this Court to be taken note of by the Hearing Committee/Central Government did include, amongst others the recommendations of the Oversight Committee contained in its communication dated 14.05.2017, the observations of the DGHS recorded in the proceedings of 17.01.2017 as well as the representation dated 19.11.2016 submitted by the petitioner college/institution qua the deficiencies allegedly noticed by the assessors of the MCI during the inspection on 18-19.11.2016. This assumes importance in view of the fact that the deficiencies relating to faculty and residents, which according to the assessors of the MCI each is in excess of 30%, as noted in that inspection had been controverted and duly explained by the petitioner college/institution with supporting materials. The order dated 10.08.2017 does not contain a semblance of such consideration. To state the least, in view of the eventful backdrop, in which the matter was remanded to the Central Government for a fresh look on merits, in our opinion, it was incumbent on it or its Hearing Committee to scrupulously analyze all the materials on record and arrive at a dispassionate decision on the issue. This visibly has not been done. The factum of non-cooperation of the petitioners in the second inspection on 09.12.2016 was available before this Court at the time of passing of the order dated 01.08.2017 and thus could not have been extended a decisive weightage to conclude against them.19. As the impugned order dated 10.08.2017 would reveal, it is apparent that for all practical purposes, the Hearing Committee/Central Government did not undertake a dispassionate, objective, cautious and rational analysis of the materials on record and in our view, returned wholly casual findings against the petitioner college/institution. This order thus has to be held, not to be in accord with the spirit and purport of the order dated 01.08.2017 passed by this Court. Suffice it to state, the order does not inspire the confidence of this Court to be sustained in the attendant facts and circumstances.20. In the predominant factual setting, noted hereinabove, the approach of the respondents is markedly incompatible with the essence and import of the proviso to Section 10A(4) mandating against disapproval by the Central Government of any scheme for establishment of a college except after giving the person or the college concerned a reasonable opportunity of being heard. Reasonable opportunity of hearing which is synonymous to fair hearing, it is not longer res integra, is an important ingredient of audi alteram partem rule and embraces almost every facet of fair procedure. The rule of fair hearing requires that the affected party should be given an opportunity to meet the case against him effectively and the right to fair hearing takes within its fold a just decision supplemented by reasons and rationale. Reasonable opportunity of hearing or right to fair hearing casts a steadfast and sacrosanct obligation on the adjudicator to ensure fairness in procedure and action, so much so that any remiss or dereliction in connection therewith would be at the pain of invalidation of the decision eventually taken. Every executive authority empowered to take an administrative action having the potential of visiting any person with civil consequences must take care to ensure that justice is not only done but also manifestly appears to have been done.21. No endeavour whatsoever, in our comprehension, has been made by the respondents and that too in the face of an unequivocal direction by this Court, to fairly and consummately examine the materials on record in details before recording a final decision on the issue of confirmation or otherwise of the LOP granted to the petitioner college/institution as on 12.09.2016. True it is that the Regulations do provide for certain norms of infrastructure to be complied with by the applicant college/institution for being qualified for the LOP depending on the stages involved. This however does not obviate the inalienable necessity of affording a reasonable opportunity of hearing to the person or the college/institution concerned vis-a-vis the scheme for establishment of a college before disapproving the same. The manner in which the respondents, in the individual facts of the instant case, have approached the issue, leads to the inevitable conclusion that the materials on record do not support determinatively the allegation of deficiency in course of the process undertaken, as alleged. We are thus of the considered opinion that in view of the persistent defaults and shortcomings in the decision making process of the respondents, the petitioner college/institution ought not to be penalised. Having regard to the progression of events, the assertions made by the petitioners in the representations countering the deficiencies alleged, the observations/views expressed by the Oversight Committee in its communication dated 14.05.2017 and the DGHS in the hearing held on 17.01.2017 negate the findings with regard to the deficiencies as recorded by the assessors of the MCI in the inspections held. | 1[ds]18. The contrasting assertions have received our due consideration. The impugned order dated 10.08.2017, it cannot be gainsaid, has to be assuredly tested on the touchstone of the operative directions contained in this Courts order dated 01.08.2017 remanding the issue involved to the Central Government for a fresh consideration on merits after affording opportunity of hearing to the petitioner college/institution. As would be patent from the order presently under scrutiny, the Hearing Committee and for that matter, the Central Government had focused only on two aspects namely,of the petitioner college/institution in the proposed inspection on 09.12.2016 and the subsisting deficiencies relating to faculty and residents, which allegedly is each in excess of 30%. There is no indication whatsoever as to whether the Hearing Committee/the Central Government had, as directed by this Court,This assumes importance in view of the fact that the deficiencies relating to faculty and residents, which according to the assessors of the MCI each is in excess of 30%, as noted in that inspection had been controverted and duly explained by the petitioner college/institution with supporting materials. The order dated 10.08.2017 does not contain a semblance of such consideration. To state the least, in view of the eventful backdrop, in which the matter was remanded to the Central Government for a fresh look on merits, in our opinion, it was incumbent on it or its Hearing Committee to scrupulously analyze all the materials on record and arrive at a dispassionate decision on the issue. This visibly has not been done. The factum ofof the petitioners in the second inspection on 09.12.2016 was available before this Court at the time of passing of the order dated 01.08.2017 and thus could not have been extended a decisive weightage to conclude against them.19. As the impugned order dated 10.08.2017 would reveal, it is apparent that for all practical purposes, the Hearing Committee/Central Government did not undertake a dispassionate, objective, cautious and rational analysis of the materials on record and in our view, returned wholly casual findings against the petitioner college/institution. This order thus has to be held, not to be in accord with the spirit and purport of the order dated 01.08.2017 passed by this Court. Suffice it to state, the order does not inspire the confidence of this Court to be sustained in the attendant facts and circumstances.20. In the predominant factual setting, noted hereinabove, the approach of the respondents is markedly incompatible with the essence and import of the proviso to Section 10A(4) mandating against disapproval by the Central Government of any scheme for establishment of a college except after giving the person or the college concerned a reasonable opportunity of being heard. Reasonable opportunity of hearing which is synonymous to fair hearing, it is not longer res integra, is an important ingredient of audi alteram partem rule and embraces almost every facet of fair procedure. The rule of fair hearing requires that the affected party should be given an opportunity to meet the case against him effectively and the right to fair hearing takes within its fold a just decision supplemented by reasons and rationale. Reasonable opportunity of hearing or right to fair hearing casts a steadfast and sacrosanct obligation on the adjudicator to ensure fairness in procedure and action, so much so that any remiss or dereliction in connection therewith would be at the pain of invalidation of the decision eventually taken. Every executive authority empowered to take an administrative action having the potential of visiting any person with civil consequences must take care to ensure that justice is not only done but also manifestly appears to have been done.21. No endeavour whatsoever, in our comprehension, has been made by the respondents and that too in the face of an unequivocal direction by this Court, to fairly and consummately examine the materials on record in details before recording a final decision on the issue of confirmation or otherwise of the LOP granted to the petitioner college/institution as on 12.09.2016. True it is that the Regulations do provide for certain norms of infrastructure to be complied with by the applicant college/institution for being qualified for the LOP depending on the stages involved. This however does not obviate the inalienable necessity of affording a reasonable opportunity of hearing to the person or the college/institution concernedthe scheme for establishment of a college before disapproving the same. The manner in which the respondents, in the individual facts of the instant case, have approached the issue, leads to the inevitable conclusion that the materials on record do not support determinatively the allegation of deficiency in course of the process undertaken, as alleged. We are thus of the considered opinion that in view of the persistent defaults and shortcomings in the decision making process of the respondents, the petitioner college/institution ought not to be penalised. Having regard to the progression of events, the assertions made by the petitioners in the representations countering the deficiencies alleged, the observations/views expressed by the Oversight Committee in its communication dated 14.05.2017 and the DGHS in the hearing held on 17.01.2017 negate the findings with regard to the deficiencies as recorded by the assessors of the MCI in the inspections held. | 1 | 5,201 | 934 | ### 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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deficiency relating to faculty and residents, was each in excess of 30%, in terms of the Regulations, the petitioners are not entitled to establish and/or continue its college/institution thereunder and thus the impugned order is unassailable in law and on facts. 18. The contrasting assertions have received our due consideration. The impugned order dated 10.08.2017, it cannot be gainsaid, has to be assuredly tested on the touchstone of the operative directions contained in this Courts order dated 01.08.2017 remanding the issue involved to the Central Government for a fresh consideration on merits after affording opportunity of hearing to the petitioner college/institution. As would be patent from the order presently under scrutiny, the Hearing Committee and for that matter, the Central Government had focused only on two aspects namely, non-cooperation of the petitioner college/institution in the proposed inspection on 09.12.2016 and the subsisting deficiencies relating to faculty and residents, which allegedly is each in excess of 30%. There is no indication whatsoever as to whether the Hearing Committee/the Central Government had, as directed by this Court, re-appraised/reexamined the recommendations views of the MCI, Hearing Committee, DGHS and the Oversight Committee, as available on records. The materials intended by this Court to be taken note of by the Hearing Committee/Central Government did include, amongst others the recommendations of the Oversight Committee contained in its communication dated 14.05.2017, the observations of the DGHS recorded in the proceedings of 17.01.2017 as well as the representation dated 19.11.2016 submitted by the petitioner college/institution qua the deficiencies allegedly noticed by the assessors of the MCI during the inspection on 18-19.11.2016. This assumes importance in view of the fact that the deficiencies relating to faculty and residents, which according to the assessors of the MCI each is in excess of 30%, as noted in that inspection had been controverted and duly explained by the petitioner college/institution with supporting materials. The order dated 10.08.2017 does not contain a semblance of such consideration. To state the least, in view of the eventful backdrop, in which the matter was remanded to the Central Government for a fresh look on merits, in our opinion, it was incumbent on it or its Hearing Committee to scrupulously analyze all the materials on record and arrive at a dispassionate decision on the issue. This visibly has not been done. The factum of non-cooperation of the petitioners in the second inspection on 09.12.2016 was available before this Court at the time of passing of the order dated 01.08.2017 and thus could not have been extended a decisive weightage to conclude against them.19. As the impugned order dated 10.08.2017 would reveal, it is apparent that for all practical purposes, the Hearing Committee/Central Government did not undertake a dispassionate, objective, cautious and rational analysis of the materials on record and in our view, returned wholly casual findings against the petitioner college/institution. This order thus has to be held, not to be in accord with the spirit and purport of the order dated 01.08.2017 passed by this Court. Suffice it to state, the order does not inspire the confidence of this Court to be sustained in the attendant facts and circumstances.20. In the predominant factual setting, noted hereinabove, the approach of the respondents is markedly incompatible with the essence and import of the proviso to Section 10A(4) mandating against disapproval by the Central Government of any scheme for establishment of a college except after giving the person or the college concerned a reasonable opportunity of being heard. Reasonable opportunity of hearing which is synonymous to fair hearing, it is not longer res integra, is an important ingredient of audi alteram partem rule and embraces almost every facet of fair procedure. The rule of fair hearing requires that the affected party should be given an opportunity to meet the case against him effectively and the right to fair hearing takes within its fold a just decision supplemented by reasons and rationale. Reasonable opportunity of hearing or right to fair hearing casts a steadfast and sacrosanct obligation on the adjudicator to ensure fairness in procedure and action, so much so that any remiss or dereliction in connection therewith would be at the pain of invalidation of the decision eventually taken. Every executive authority empowered to take an administrative action having the potential of visiting any person with civil consequences must take care to ensure that justice is not only done but also manifestly appears to have been done.21. No endeavour whatsoever, in our comprehension, has been made by the respondents and that too in the face of an unequivocal direction by this Court, to fairly and consummately examine the materials on record in details before recording a final decision on the issue of confirmation or otherwise of the LOP granted to the petitioner college/institution as on 12.09.2016. True it is that the Regulations do provide for certain norms of infrastructure to be complied with by the applicant college/institution for being qualified for the LOP depending on the stages involved. This however does not obviate the inalienable necessity of affording a reasonable opportunity of hearing to the person or the college/institution concerned vis-a-vis the scheme for establishment of a college before disapproving the same. The manner in which the respondents, in the individual facts of the instant case, have approached the issue, leads to the inevitable conclusion that the materials on record do not support determinatively the allegation of deficiency in course of the process undertaken, as alleged. We are thus of the considered opinion that in view of the persistent defaults and shortcomings in the decision making process of the respondents, the petitioner college/institution ought not to be penalised. Having regard to the progression of events, the assertions made by the petitioners in the representations countering the deficiencies alleged, the observations/views expressed by the Oversight Committee in its communication dated 14.05.2017 and the DGHS in the hearing held on 17.01.2017 negate the findings with regard to the deficiencies as recorded by the assessors of the MCI in the inspections held.
### Response:
1
### Explanation:
18. The contrasting assertions have received our due consideration. The impugned order dated 10.08.2017, it cannot be gainsaid, has to be assuredly tested on the touchstone of the operative directions contained in this Courts order dated 01.08.2017 remanding the issue involved to the Central Government for a fresh consideration on merits after affording opportunity of hearing to the petitioner college/institution. As would be patent from the order presently under scrutiny, the Hearing Committee and for that matter, the Central Government had focused only on two aspects namely,of the petitioner college/institution in the proposed inspection on 09.12.2016 and the subsisting deficiencies relating to faculty and residents, which allegedly is each in excess of 30%. There is no indication whatsoever as to whether the Hearing Committee/the Central Government had, as directed by this Court,This assumes importance in view of the fact that the deficiencies relating to faculty and residents, which according to the assessors of the MCI each is in excess of 30%, as noted in that inspection had been controverted and duly explained by the petitioner college/institution with supporting materials. The order dated 10.08.2017 does not contain a semblance of such consideration. To state the least, in view of the eventful backdrop, in which the matter was remanded to the Central Government for a fresh look on merits, in our opinion, it was incumbent on it or its Hearing Committee to scrupulously analyze all the materials on record and arrive at a dispassionate decision on the issue. This visibly has not been done. The factum ofof the petitioners in the second inspection on 09.12.2016 was available before this Court at the time of passing of the order dated 01.08.2017 and thus could not have been extended a decisive weightage to conclude against them.19. As the impugned order dated 10.08.2017 would reveal, it is apparent that for all practical purposes, the Hearing Committee/Central Government did not undertake a dispassionate, objective, cautious and rational analysis of the materials on record and in our view, returned wholly casual findings against the petitioner college/institution. This order thus has to be held, not to be in accord with the spirit and purport of the order dated 01.08.2017 passed by this Court. Suffice it to state, the order does not inspire the confidence of this Court to be sustained in the attendant facts and circumstances.20. In the predominant factual setting, noted hereinabove, the approach of the respondents is markedly incompatible with the essence and import of the proviso to Section 10A(4) mandating against disapproval by the Central Government of any scheme for establishment of a college except after giving the person or the college concerned a reasonable opportunity of being heard. Reasonable opportunity of hearing which is synonymous to fair hearing, it is not longer res integra, is an important ingredient of audi alteram partem rule and embraces almost every facet of fair procedure. The rule of fair hearing requires that the affected party should be given an opportunity to meet the case against him effectively and the right to fair hearing takes within its fold a just decision supplemented by reasons and rationale. Reasonable opportunity of hearing or right to fair hearing casts a steadfast and sacrosanct obligation on the adjudicator to ensure fairness in procedure and action, so much so that any remiss or dereliction in connection therewith would be at the pain of invalidation of the decision eventually taken. Every executive authority empowered to take an administrative action having the potential of visiting any person with civil consequences must take care to ensure that justice is not only done but also manifestly appears to have been done.21. No endeavour whatsoever, in our comprehension, has been made by the respondents and that too in the face of an unequivocal direction by this Court, to fairly and consummately examine the materials on record in details before recording a final decision on the issue of confirmation or otherwise of the LOP granted to the petitioner college/institution as on 12.09.2016. True it is that the Regulations do provide for certain norms of infrastructure to be complied with by the applicant college/institution for being qualified for the LOP depending on the stages involved. This however does not obviate the inalienable necessity of affording a reasonable opportunity of hearing to the person or the college/institution concernedthe scheme for establishment of a college before disapproving the same. The manner in which the respondents, in the individual facts of the instant case, have approached the issue, leads to the inevitable conclusion that the materials on record do not support determinatively the allegation of deficiency in course of the process undertaken, as alleged. We are thus of the considered opinion that in view of the persistent defaults and shortcomings in the decision making process of the respondents, the petitioner college/institution ought not to be penalised. Having regard to the progression of events, the assertions made by the petitioners in the representations countering the deficiencies alleged, the observations/views expressed by the Oversight Committee in its communication dated 14.05.2017 and the DGHS in the hearing held on 17.01.2017 negate the findings with regard to the deficiencies as recorded by the assessors of the MCI in the inspections held.
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M/S Som Datt Builders Ltd Vs. Union Of India | be covered by the expression ‘mineral? as noted in Black?s Law Dictionary (Eighth Edition). 21. Common parlance test that because nobody speaks of ‘ordinary earth? as a ‘mineral? has not been accepted by this Court in Banarsi Dass Chadha. As a matter of fact, this Court in this regard specifically disagreed with the view of Calcutta High Court in Jagadamba Prasad Singh (supra). 22. In the context of Section 3(e), what we have discussed above, we hold, as it must be, that ‘ordinary earth? is comprehended within the meaning of the word ‘any other mineral?. We adopt the reasoning given by three-Judge Bench in Banarsi Dass Chadha that if the expression ‘minor mineral? as defined in Section 3(e) of the Act includes ‘ordinary clay? and ‘ordinary sand?, there is no reason why ‘ordinary earth? should not be comprehended within the meaning of the word ‘any other mineral?. 23. Having held that ‘ordinary earth? is comprehended within the meaning of the word ‘any other mineral? in Section 3(e) of the Act, 1957, the question that now arises is whether the exercise of power by the Central Government under Section 3(e) of the Act, 1957 in declaring the use of ‘ordinary earth? for filling or levelling purposes in construction of embankments, roads, railways, building as ‘minor mineral? is justified. It was contended on behalf of the appellants that the Central Government cannot include any matter based on mere use nor can it make purpose-based distinction. Once the ‘ordinary earth? is found to be comprehended within the meaning of the word ‘any other mineral? for the purposes of Section 3(e) of the Act, 1957, in our view, there is no impediment for the Central Government to include or exclude the same based on a particular use or purpose. User can be a valid reason for exclusion as well as inclusion in declaring mineral, ‘minor mineral? in exercise of the powers conferred upon the Central Government under Section 3(e) of the Act and exercise of any such power based on use or purpose cannot be said to be arbitrary. We, accordingly, find no merit in the contention of the learned Senior Counsel for the appellants that the declaration of the ‘ordinary earth? for the uses and purposes mentioned in the notification dated February 3, 2000 is ultra vires the power conferred upon the Central Government. 24. The learned Senior Counsel for the appellants also argued that demand of royalty can be raised only against a lessee or mining permit-holder and the demand raised against the appellants, who are neither lessees nor mining permit holders, is violative of the Rules, 1963. 25. The High Court while dealing with the aforesaid contention held : ?Now coming to the question as to whether the amount of royalty can be recovered from the petitioners who are the contractors and suppliers of ordinary earth and other minor minerals, we are of the considered opinion that the royalty is payable on excavation of any minor minerals. The liability is primarily of the person holding the mining lease or a mining permit but if a person does not hold any mining lease or a mining permit, the liability does not cease. Any person dealing in a minor mineral is required to maintain and keep documents to show that the royalty has been paid and in order to ensure that due royalty on minor minerals has been paid within the State of U.P., the State Government by the tree Government Orders have provided for producing copies of declaration in Form MM 11 and treasury challan evidencing deposit of royalty. It cannot be said that any undue restrictions have been placed upon the right to carry on trade or business or it is without the authority of law.? 26. Rules 1963 have been framed by the Government of Uttar Pradesh in exercise of its power conferred under Section 15 of the Act, 1957. These Rules have adopted the definition of ‘minor mineral? as provided in Clause (e) of Section 3 of the Act, 1957. The Rules make provision for grant of mining lease; payment of royalty/dead rent; conditions of mining lease and permit; contraventions, offences and penalties for unauthorized mining including consequences of non-payment of royalty, rent or other dues; powers of the District Officers and the Officers of the Directorate of Geology and Mining for the purpose of assessment of royalty; collection of royalty or dead rent through contractor; appeal against order passed under these Rules by the District Officer and remedy by way of revision to the State Government. 27. Vide notification dated March 20, 2001, First Schedule appended to the Rules, 1963 was amended and rate of royalty for ‘ordinary clay? ‘ordinary earth? was fixed at Rs. 4/- per cubic metre. 28. Admittedly demand notices came to be issued to the appellants by the Office of the District Officer bringing to their notice that they have extracted ‘ordinary earth? covered by the definition of ‘minor mineral? without any permission or permit and that they have also not paid royalty. The appellants were, thus, called upon to make payment of royalty. However, neither the material placed before us nor from the judgment of the High Court, it transpires that the appellants responded to the said notices and raised the objection that demand of royalty cannot be raised against them as they were not lessees or mining permit holders. In any case, if they raised such objection, they did not await decision of the authorities in this regard. Rules 1963 provide complete machinery for assessment and recovery of royalty and consequences of non-payment of royalty. These Rules also provide remedy to an aggrieved person against order passed under the Rules by the District Officer demanding payment of royalty. The appellants, having failed to pursue remedy provided under the Rules, 1963 as regards recovery of royalty from them, we are afraid, the view taken by the High Court does not call for any interference in our jurisdiction under Article 136 of the Constitution. | 0[ds]However, neither the material placed before us nor from the judgment of the High Court, it transpires that the appellants responded to the said notices and raised the objection that demand of royalty cannot be raised against them as they were not lessees or mining permit holders. In any case, if they raised such objection, they did not await decision of the authorities in this regard. Rules 1963 provide complete machinery for assessment and recovery of royalty and consequences of non-payment of royalty. These Rules also provide remedy to an aggrieved person against order passed under the Rules by the District Officer demanding payment of royalty. The appellants, having failed to pursue remedy provided under the Rules, 1963 as regards recovery of royalty from them, we are afraid, the view taken by the High Court does not call for any interference in our jurisdiction under Article 136 of the Constitution | 0 | 5,461 | 167 | ### Instruction:
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### Input:
be covered by the expression ‘mineral? as noted in Black?s Law Dictionary (Eighth Edition). 21. Common parlance test that because nobody speaks of ‘ordinary earth? as a ‘mineral? has not been accepted by this Court in Banarsi Dass Chadha. As a matter of fact, this Court in this regard specifically disagreed with the view of Calcutta High Court in Jagadamba Prasad Singh (supra). 22. In the context of Section 3(e), what we have discussed above, we hold, as it must be, that ‘ordinary earth? is comprehended within the meaning of the word ‘any other mineral?. We adopt the reasoning given by three-Judge Bench in Banarsi Dass Chadha that if the expression ‘minor mineral? as defined in Section 3(e) of the Act includes ‘ordinary clay? and ‘ordinary sand?, there is no reason why ‘ordinary earth? should not be comprehended within the meaning of the word ‘any other mineral?. 23. Having held that ‘ordinary earth? is comprehended within the meaning of the word ‘any other mineral? in Section 3(e) of the Act, 1957, the question that now arises is whether the exercise of power by the Central Government under Section 3(e) of the Act, 1957 in declaring the use of ‘ordinary earth? for filling or levelling purposes in construction of embankments, roads, railways, building as ‘minor mineral? is justified. It was contended on behalf of the appellants that the Central Government cannot include any matter based on mere use nor can it make purpose-based distinction. Once the ‘ordinary earth? is found to be comprehended within the meaning of the word ‘any other mineral? for the purposes of Section 3(e) of the Act, 1957, in our view, there is no impediment for the Central Government to include or exclude the same based on a particular use or purpose. User can be a valid reason for exclusion as well as inclusion in declaring mineral, ‘minor mineral? in exercise of the powers conferred upon the Central Government under Section 3(e) of the Act and exercise of any such power based on use or purpose cannot be said to be arbitrary. We, accordingly, find no merit in the contention of the learned Senior Counsel for the appellants that the declaration of the ‘ordinary earth? for the uses and purposes mentioned in the notification dated February 3, 2000 is ultra vires the power conferred upon the Central Government. 24. The learned Senior Counsel for the appellants also argued that demand of royalty can be raised only against a lessee or mining permit-holder and the demand raised against the appellants, who are neither lessees nor mining permit holders, is violative of the Rules, 1963. 25. The High Court while dealing with the aforesaid contention held : ?Now coming to the question as to whether the amount of royalty can be recovered from the petitioners who are the contractors and suppliers of ordinary earth and other minor minerals, we are of the considered opinion that the royalty is payable on excavation of any minor minerals. The liability is primarily of the person holding the mining lease or a mining permit but if a person does not hold any mining lease or a mining permit, the liability does not cease. Any person dealing in a minor mineral is required to maintain and keep documents to show that the royalty has been paid and in order to ensure that due royalty on minor minerals has been paid within the State of U.P., the State Government by the tree Government Orders have provided for producing copies of declaration in Form MM 11 and treasury challan evidencing deposit of royalty. It cannot be said that any undue restrictions have been placed upon the right to carry on trade or business or it is without the authority of law.? 26. Rules 1963 have been framed by the Government of Uttar Pradesh in exercise of its power conferred under Section 15 of the Act, 1957. These Rules have adopted the definition of ‘minor mineral? as provided in Clause (e) of Section 3 of the Act, 1957. The Rules make provision for grant of mining lease; payment of royalty/dead rent; conditions of mining lease and permit; contraventions, offences and penalties for unauthorized mining including consequences of non-payment of royalty, rent or other dues; powers of the District Officers and the Officers of the Directorate of Geology and Mining for the purpose of assessment of royalty; collection of royalty or dead rent through contractor; appeal against order passed under these Rules by the District Officer and remedy by way of revision to the State Government. 27. Vide notification dated March 20, 2001, First Schedule appended to the Rules, 1963 was amended and rate of royalty for ‘ordinary clay? ‘ordinary earth? was fixed at Rs. 4/- per cubic metre. 28. Admittedly demand notices came to be issued to the appellants by the Office of the District Officer bringing to their notice that they have extracted ‘ordinary earth? covered by the definition of ‘minor mineral? without any permission or permit and that they have also not paid royalty. The appellants were, thus, called upon to make payment of royalty. However, neither the material placed before us nor from the judgment of the High Court, it transpires that the appellants responded to the said notices and raised the objection that demand of royalty cannot be raised against them as they were not lessees or mining permit holders. In any case, if they raised such objection, they did not await decision of the authorities in this regard. Rules 1963 provide complete machinery for assessment and recovery of royalty and consequences of non-payment of royalty. These Rules also provide remedy to an aggrieved person against order passed under the Rules by the District Officer demanding payment of royalty. The appellants, having failed to pursue remedy provided under the Rules, 1963 as regards recovery of royalty from them, we are afraid, the view taken by the High Court does not call for any interference in our jurisdiction under Article 136 of the Constitution.
### Response:
0
### Explanation:
However, neither the material placed before us nor from the judgment of the High Court, it transpires that the appellants responded to the said notices and raised the objection that demand of royalty cannot be raised against them as they were not lessees or mining permit holders. In any case, if they raised such objection, they did not await decision of the authorities in this regard. Rules 1963 provide complete machinery for assessment and recovery of royalty and consequences of non-payment of royalty. These Rules also provide remedy to an aggrieved person against order passed under the Rules by the District Officer demanding payment of royalty. The appellants, having failed to pursue remedy provided under the Rules, 1963 as regards recovery of royalty from them, we are afraid, the view taken by the High Court does not call for any interference in our jurisdiction under Article 136 of the Constitution
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Mallikarjuna G. Hiremath Vs. Branch Mgr.,Oriental Insurance Co.L.&Ors | than the words arising out of and in the course of the employment. It is clear that there are two conditions to be fulfilled. What arises in the course of the employment is to be distinguished from what arises out of the employment. The former words relate to time conditioned by reference to the mans service, the latter to causality. Not every accident which occurs to a man during the time when he is on his employment--that is, directly or indirectly engaged on what he is employed to do--gives a claim to compensation, unless it also arises out of the employment. Hence the section imports a distinction which it does not define. The language is simple and unqualified. 14. We are not oblivious that an accident may cause an internal injury as was held in Fenton (Pauper) v. J. Thorley & Co. Ltd. (1903 AC 443) by the Court of Appeal: I come, therefore, to the conclusion that the expression accident is used in the popular and ordinary sense of the word as denoting an unlooked-for mishap or an untoward event which is not expected or designed. Lord Lindley opined: The word accident is not a technical legal term with a clearly defined meaning. Speaking generally, but with reference to legal liabilities, an accident means any unintended and unexpected occurrence which produces hurt or loss. But it is often used to denote any unintended and unexpected loss or hurt apart from its cause; and if the cause is not known the loss or hurt itself would certainly be called an accident. The word accident is also often used to denote both the cause and the effect, no attempt being made to discriminate between them. The great majority of what are called accidents are occasioned by carelessness; but for legal purposes it is often important to distinguish careless from other unintended and unexpected events. 15. There are a large number of English and American decisions, some of which have been taken note of in ESI Corpn.s case (supra) in regard to essential ingredients for such finding and the tests attracting the provisions of Section 3 of the Act. The principles are: (1) There must be a causal connection between the injury and the accident and the accident and the work done in the course of employment. (2) The onus is upon the applicant to show that it was the work and the resulting strain which contributed to or aggravated the injury. (3) If the evidence brought on records establishes a greater probability which satisfies a reasonable man that the work contributed to the causing of the personal injury, it would be enough for the workman to succeed, but the same would depend upon the fact of each case. 16. An accident may lead to death but that an accident had taken place must be proved. Only because a death has taken place in course of employment will not amount to accident. In other words, death must arise out of accident. There is no presumption that an accident had occurred. 17. In a case of this nature to prove that accident has taken place, factors which would have to be established, inter alia, are: (1) stress and strain arising during the course of employment, (2) nature of employment, (3) injury aggravated due to stress and strain. 18. In G.M., B.E.S.T. Undertaking v. Agnes (1964 (3) SCR 930 ) referring to the decision of the Court of Appeal in Jenkins v. Elder Dempster Lines Ltd. (1953 (2) All ER 1133) this Court opined therein that a wider test, namely, that there should be a nexus between accident and employment was laid down. It also followed the decision of this Court in Saurashtra Salt Mfg. Co. v. Bai Valu Raja (AIR 1958 SC 881 ) 19. In Mackinnon Mackenzie & Co. (P) Ltd. v. Ibrahim Mohd. Issak (1969 (2) SCC 607 ), this Court held: 5. To come within the Act the injury by accident must arise both out of and in the course of employment. The words in the course of the employment mean in the course of the work which the workman is employed to do and which is incidental to it. The words arising out of employment are understood to mean that during the course of the employment, injury has resulted from some risk incidental to the duties of the service, which, unless engaged in the duty owing to the master, it is reasonable to believe the workman would not otherwise have suffered. In other words there must be a causal relationship between the accident and the employment. The expression arising out of employment is again not confined to the mere nature of the employment. The expression applies to employment as such--to its nature, its conditions, its obligations and its incidents. If by reason of any of those factors the workman is brought within the zone of special danger the injury would be one which arises out of employment. To put it differently if the accident had occurred on account of a risk which is an incident of the employment, the claim for compensation must succeed, unless of course the workman has exposed himself to an added peril by his own imprudent act. 20. The above position was again highlighted in Shakuntala Chandrakant Shreshti v. Prabhakar Maruti Garvali and Anr. (2007 (11) SCC 668 ). 21. It is the specific case of the claimants that on 30.11.2000 the deceased who was driving the vehicle on the direction of the insured had gone to Gurugunta from Siraguppa. There he had gone to a temple and was sitting on the steps of the pond in the temple and he slipped and fell into the water and died due to drowning. This according to us is not sufficient in view of the legal principles delineated above to fasten liability on either the insurer or the insured. The High Court was not justified in holding that the present appellant was liable to pay compensation. 22. | 1[ds]There are a large number of English and American decisions, some of which have been taken note of in ESI Corpn.s case (supra) in regard to essential ingredients for such finding and the tests attracting the provisions of Section 3 of the Act. The principles are:(1) There must be a causal connection between the injury and the accident and the accident and the work done in the course of employment(2) The onus is upon the applicant to show that it was the work and the resulting strain which contributed to or aggravated the injury(3) If the evidence brought on records establishes a greater probability which satisfies a reasonable man that the work contributed to the causing of the personal injury, it would be enough for the workman to succeed, but the same would depend upon the fact of each caseAn accident may lead to death but that an accident had taken place must be proved. Only because a death has taken place in course of employment will not amount to accident. In other words, death must arise out of accident. There is no presumption that an accident had occurredIn a case of this nature to prove that accident has taken place, factors which would have to be established, inter alia, are:(1) stress and strain arising during the course of employment,(3) injury aggravated due to stress and strainIt is the specific case of the claimants that on 30.11.2000 the deceased who was driving the vehicle on the direction of the insured had gone to Gurugunta from Siraguppa. There he had gone to a temple and was sitting on the steps of the pond in the temple and he slipped and fell into the water and died due to drowning. This according to us is not sufficient in view of the legal principles delineated above to fasten liability on either the insurer or the insured. The High Court was not justified in holding that the present appellant was liable to pay compensation. | 1 | 2,449 | 369 | ### Instruction:
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than the words arising out of and in the course of the employment. It is clear that there are two conditions to be fulfilled. What arises in the course of the employment is to be distinguished from what arises out of the employment. The former words relate to time conditioned by reference to the mans service, the latter to causality. Not every accident which occurs to a man during the time when he is on his employment--that is, directly or indirectly engaged on what he is employed to do--gives a claim to compensation, unless it also arises out of the employment. Hence the section imports a distinction which it does not define. The language is simple and unqualified. 14. We are not oblivious that an accident may cause an internal injury as was held in Fenton (Pauper) v. J. Thorley & Co. Ltd. (1903 AC 443) by the Court of Appeal: I come, therefore, to the conclusion that the expression accident is used in the popular and ordinary sense of the word as denoting an unlooked-for mishap or an untoward event which is not expected or designed. Lord Lindley opined: The word accident is not a technical legal term with a clearly defined meaning. Speaking generally, but with reference to legal liabilities, an accident means any unintended and unexpected occurrence which produces hurt or loss. But it is often used to denote any unintended and unexpected loss or hurt apart from its cause; and if the cause is not known the loss or hurt itself would certainly be called an accident. The word accident is also often used to denote both the cause and the effect, no attempt being made to discriminate between them. The great majority of what are called accidents are occasioned by carelessness; but for legal purposes it is often important to distinguish careless from other unintended and unexpected events. 15. There are a large number of English and American decisions, some of which have been taken note of in ESI Corpn.s case (supra) in regard to essential ingredients for such finding and the tests attracting the provisions of Section 3 of the Act. The principles are: (1) There must be a causal connection between the injury and the accident and the accident and the work done in the course of employment. (2) The onus is upon the applicant to show that it was the work and the resulting strain which contributed to or aggravated the injury. (3) If the evidence brought on records establishes a greater probability which satisfies a reasonable man that the work contributed to the causing of the personal injury, it would be enough for the workman to succeed, but the same would depend upon the fact of each case. 16. An accident may lead to death but that an accident had taken place must be proved. Only because a death has taken place in course of employment will not amount to accident. In other words, death must arise out of accident. There is no presumption that an accident had occurred. 17. In a case of this nature to prove that accident has taken place, factors which would have to be established, inter alia, are: (1) stress and strain arising during the course of employment, (2) nature of employment, (3) injury aggravated due to stress and strain. 18. In G.M., B.E.S.T. Undertaking v. Agnes (1964 (3) SCR 930 ) referring to the decision of the Court of Appeal in Jenkins v. Elder Dempster Lines Ltd. (1953 (2) All ER 1133) this Court opined therein that a wider test, namely, that there should be a nexus between accident and employment was laid down. It also followed the decision of this Court in Saurashtra Salt Mfg. Co. v. Bai Valu Raja (AIR 1958 SC 881 ) 19. In Mackinnon Mackenzie & Co. (P) Ltd. v. Ibrahim Mohd. Issak (1969 (2) SCC 607 ), this Court held: 5. To come within the Act the injury by accident must arise both out of and in the course of employment. The words in the course of the employment mean in the course of the work which the workman is employed to do and which is incidental to it. The words arising out of employment are understood to mean that during the course of the employment, injury has resulted from some risk incidental to the duties of the service, which, unless engaged in the duty owing to the master, it is reasonable to believe the workman would not otherwise have suffered. In other words there must be a causal relationship between the accident and the employment. The expression arising out of employment is again not confined to the mere nature of the employment. The expression applies to employment as such--to its nature, its conditions, its obligations and its incidents. If by reason of any of those factors the workman is brought within the zone of special danger the injury would be one which arises out of employment. To put it differently if the accident had occurred on account of a risk which is an incident of the employment, the claim for compensation must succeed, unless of course the workman has exposed himself to an added peril by his own imprudent act. 20. The above position was again highlighted in Shakuntala Chandrakant Shreshti v. Prabhakar Maruti Garvali and Anr. (2007 (11) SCC 668 ). 21. It is the specific case of the claimants that on 30.11.2000 the deceased who was driving the vehicle on the direction of the insured had gone to Gurugunta from Siraguppa. There he had gone to a temple and was sitting on the steps of the pond in the temple and he slipped and fell into the water and died due to drowning. This according to us is not sufficient in view of the legal principles delineated above to fasten liability on either the insurer or the insured. The High Court was not justified in holding that the present appellant was liable to pay compensation. 22.
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There are a large number of English and American decisions, some of which have been taken note of in ESI Corpn.s case (supra) in regard to essential ingredients for such finding and the tests attracting the provisions of Section 3 of the Act. The principles are:(1) There must be a causal connection between the injury and the accident and the accident and the work done in the course of employment(2) The onus is upon the applicant to show that it was the work and the resulting strain which contributed to or aggravated the injury(3) If the evidence brought on records establishes a greater probability which satisfies a reasonable man that the work contributed to the causing of the personal injury, it would be enough for the workman to succeed, but the same would depend upon the fact of each caseAn accident may lead to death but that an accident had taken place must be proved. Only because a death has taken place in course of employment will not amount to accident. In other words, death must arise out of accident. There is no presumption that an accident had occurredIn a case of this nature to prove that accident has taken place, factors which would have to be established, inter alia, are:(1) stress and strain arising during the course of employment,(3) injury aggravated due to stress and strainIt is the specific case of the claimants that on 30.11.2000 the deceased who was driving the vehicle on the direction of the insured had gone to Gurugunta from Siraguppa. There he had gone to a temple and was sitting on the steps of the pond in the temple and he slipped and fell into the water and died due to drowning. This according to us is not sufficient in view of the legal principles delineated above to fasten liability on either the insurer or the insured. The High Court was not justified in holding that the present appellant was liable to pay compensation.
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State of Assam Vs. The Amalgamated Tea Estates Company Limited & Others | "welfare arrangements" had previously been made by the owner. In the view of the High Court the demands for licence fee and tax were made by the Town Committee with the "ulterior motive to get money from the tea estate without reference to any service of providing facilities and amenities and that the inclusion of the tea garden within the Town Committee area must be held to be mala fide and contrary to Section 334 of the Act". The High Court accordingly declared invalid the notification dated December 4, 1959 constituting the Naharkatia Town Committee insofar as it related to the area of the Naharakatia Tea Estate. The State of Assam has appealed to this Court with special leave.4. Chapter XII of the Assam Municipal Act, 1956, deals with "Small Towns". Section 334 deals with constitution of notified area, which insofar as it is relevant provides :"(1) The State Government may, by notification signify its intention to declare that with respect to some or all of the matters upon which a municipal fund may be expended under Section 60, improved arrangements are required within a specified area, which, nevertheless, it is not expedient to constitute as a municipality.(2) x x x(3) x x x(4) When six weeks from the date of publication have expired, and the State Government has considered and passed orders on such objections as may have been submitted to it, the State Government may, by notification, declare the specified area aforesaid or any portion thereof to be a notified area to be termed as Small Town."Section 335 provides for establishment of a Town Committee for each notified area consisting of such number of members as may be fixed by the State Government. Section 336 authorises the State Government to impose in a notified area any tax which could have been imposed therein if such areas were a municipality and to apply or to adapt to the notified area provisions for the assessment and recovery of any tax imposed under the Assam Municipal Act or rules for the time being in force with respect to assessment and recovery of any tax imposed under the Act, and to extend to any notified area the provisions of any section of the Assam Municipal Act subject to such restrictions and modifications if any, as the State Government may think fit.5. In paragraph 14 of the petition it is averred by the Amalgamated Tea Company Ltd., that "the inclusion of the plantation area of the petitioner within the jurisdiction of the Naharkatia Town Committee is not at all bone fide, inasmuch as it was made not with a view to provide improved arrangements or amenities to the inhabitants of the said plantation, but solely with the motive of augmenting the income of the said Town Committee without the obligation or necessity of any expenditure of municipal funds for providing anything in return as contemplated by law." The State of Assam it was claimed by the Company, had in issuing the notification, which included the plantation area of the Naharkatia Tea Estate, no acted bona fide. But no particulars were given of that plea. The plea raised on behalf of the Company was denied by the State of Assam. The Company tendered no evidence in support of the plea that the notification dated December 4, 1959, was issued for a collateral purpose.6. By Section 334 (1) the State Government is authorised to issue for a specified area a notification signifying its intention to provide improved arrangements. In issuing a notification under Section 334 (1) the State Government has to consider whether the area specified requires to be provided with improved arrangements in respect of matters upon which a municipal fund may be expended and if the State Government has come to the conclusion that improved arrangements are so needed the validity of the notification could only be challenged on proof of absence of authority, or on clear proof that the notification was issued for a collateral purpose. From the mere circumstance that in respect of some pockets in the specified area there may already exist arrangements made at private expense municipal facilities and amenities which after the constitution of the notified area, obligation to provide which may lie upon the Town Committee, it does not follow that in signifying its intention to declare the specified area, the State Government acted for a collateral purpose. The High Court was of the view that the Amalgamated Tea Company Ltd. had made arrangements for lighting, maintenance of roads, conservancy, water-supply, hospital amenities and other welfare arrangements, and since improved arrangements were not necessary the notification of the State Government must be regarded as "mala fide". The notification of the State Government signifying its intention to declare a specified area as one in which improved arrangements may by made is undoubtedly not conclusive: in appropriate cases the validity of the notification may be challenged. But in the present case no ground has been made out on which such a challenge may be sustained.7. The Company raised no objection to the preliminary notification dated May 22, 1958, issued under sub-section (1) of Section 334 of the Assam Municipal Act, 1956. The writ petition was filed years after the constitution of the notified Town Committee and only after the demands for tax were made. Prima facie, such, a petition was, as characterised by counsel for the State of Assam, a "speculative petition". In our judgment, the High Court was in error in allowing the petition and declaring the notification under Section 334 (1) of the Act as illegal.8. We are here dealing with the validity of the notification issued by the State Government under sub-sections (1) and (4) of Section 334. We are not called upon to pronounce upon the validity of the demands for licence free and other taxes levied by the Notified Town Committee. The Company may, if so advised, challenge the validity of the demands for the licence fee and the municipal taxes in appropriate proceedings. | 1[ds]5. In paragraph 14 of the petition it is averred by the Amalgamated Tea Company Ltd., that "the inclusion of the plantation area of the petitioner within the jurisdiction of the Naharkatia Town Committee is not at all bone fide, inasmuch as it was made not with a view to provide improved arrangements or amenities to the inhabitants of the said plantation, but solely with the motive of augmenting the income of the said Town Committee without the obligation or necessity of any expenditure of municipal funds for providing anything in return as contemplated by law." The State of Assam it was claimed by the Company, had in issuing the notification, which included the plantation area of the Naharkatia Tea Estate, no acted bona fide. But no particulars were given of that plea. The plea raised on behalf of the Company was denied by the State of Assam. The Company tendered no evidence in support of the plea that the notification dated December 4, 1959, was issued for a collateralthe mere circumstance that in respect of some pockets in the specified area there may already exist arrangements made at private expense municipal facilities and amenities which after the constitution of the notified area, obligation to provide which may lie upon the Town Committee, it does not follow that in signifying its intention to declare the specified area, the State Government acted for a collateral purpose. The High Court was of the view that the Amalgamated Tea Company Ltd. had made arrangements for lighting, maintenance of roads, conservancy,hospital amenities and other welfare arrangements, and since improved arrangements were not necessary the notification of the State Government must be regarded as "mala fide". The notification of the State Government signifying its intention to declare a specified area as one in which improved arrangements may by made is undoubtedly not conclusive: in appropriate cases the validity of the notification may be challenged. But in the present case no ground has been made out on which such a challenge may be sustained.7. The Company raised no objection to the preliminary notification dated May 22, 1958, issued under(1) of Section 334 of the Assam Municipal Act, 1956. The writ petition was filed years after the constitution of the notified Town Committee and only after the demands for tax were made. Prima facie, such, a petition was, as characterised by counsel for the State of Assam, a "speculative petition". In our judgment, the High Court was in error in allowing the petition and declaring the notification under Section 334 (1) of the Act as illegal.8. We are here dealing with the validity of the notification issued by the State Government under(1) and (4) of Section 334. We are not called upon to pronounce upon the validity of the demands for licence free and other taxes levied by the Notified Town Committee. The Company may, if so advised, challenge the validity of the demands for the licence fee and the municipal taxes in appropriate proceedings. | 1 | 1,540 | 561 | ### Instruction:
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"welfare arrangements" had previously been made by the owner. In the view of the High Court the demands for licence fee and tax were made by the Town Committee with the "ulterior motive to get money from the tea estate without reference to any service of providing facilities and amenities and that the inclusion of the tea garden within the Town Committee area must be held to be mala fide and contrary to Section 334 of the Act". The High Court accordingly declared invalid the notification dated December 4, 1959 constituting the Naharkatia Town Committee insofar as it related to the area of the Naharakatia Tea Estate. The State of Assam has appealed to this Court with special leave.4. Chapter XII of the Assam Municipal Act, 1956, deals with "Small Towns". Section 334 deals with constitution of notified area, which insofar as it is relevant provides :"(1) The State Government may, by notification signify its intention to declare that with respect to some or all of the matters upon which a municipal fund may be expended under Section 60, improved arrangements are required within a specified area, which, nevertheless, it is not expedient to constitute as a municipality.(2) x x x(3) x x x(4) When six weeks from the date of publication have expired, and the State Government has considered and passed orders on such objections as may have been submitted to it, the State Government may, by notification, declare the specified area aforesaid or any portion thereof to be a notified area to be termed as Small Town."Section 335 provides for establishment of a Town Committee for each notified area consisting of such number of members as may be fixed by the State Government. Section 336 authorises the State Government to impose in a notified area any tax which could have been imposed therein if such areas were a municipality and to apply or to adapt to the notified area provisions for the assessment and recovery of any tax imposed under the Assam Municipal Act or rules for the time being in force with respect to assessment and recovery of any tax imposed under the Act, and to extend to any notified area the provisions of any section of the Assam Municipal Act subject to such restrictions and modifications if any, as the State Government may think fit.5. In paragraph 14 of the petition it is averred by the Amalgamated Tea Company Ltd., that "the inclusion of the plantation area of the petitioner within the jurisdiction of the Naharkatia Town Committee is not at all bone fide, inasmuch as it was made not with a view to provide improved arrangements or amenities to the inhabitants of the said plantation, but solely with the motive of augmenting the income of the said Town Committee without the obligation or necessity of any expenditure of municipal funds for providing anything in return as contemplated by law." The State of Assam it was claimed by the Company, had in issuing the notification, which included the plantation area of the Naharkatia Tea Estate, no acted bona fide. But no particulars were given of that plea. The plea raised on behalf of the Company was denied by the State of Assam. The Company tendered no evidence in support of the plea that the notification dated December 4, 1959, was issued for a collateral purpose.6. By Section 334 (1) the State Government is authorised to issue for a specified area a notification signifying its intention to provide improved arrangements. In issuing a notification under Section 334 (1) the State Government has to consider whether the area specified requires to be provided with improved arrangements in respect of matters upon which a municipal fund may be expended and if the State Government has come to the conclusion that improved arrangements are so needed the validity of the notification could only be challenged on proof of absence of authority, or on clear proof that the notification was issued for a collateral purpose. From the mere circumstance that in respect of some pockets in the specified area there may already exist arrangements made at private expense municipal facilities and amenities which after the constitution of the notified area, obligation to provide which may lie upon the Town Committee, it does not follow that in signifying its intention to declare the specified area, the State Government acted for a collateral purpose. The High Court was of the view that the Amalgamated Tea Company Ltd. had made arrangements for lighting, maintenance of roads, conservancy, water-supply, hospital amenities and other welfare arrangements, and since improved arrangements were not necessary the notification of the State Government must be regarded as "mala fide". The notification of the State Government signifying its intention to declare a specified area as one in which improved arrangements may by made is undoubtedly not conclusive: in appropriate cases the validity of the notification may be challenged. But in the present case no ground has been made out on which such a challenge may be sustained.7. The Company raised no objection to the preliminary notification dated May 22, 1958, issued under sub-section (1) of Section 334 of the Assam Municipal Act, 1956. The writ petition was filed years after the constitution of the notified Town Committee and only after the demands for tax were made. Prima facie, such, a petition was, as characterised by counsel for the State of Assam, a "speculative petition". In our judgment, the High Court was in error in allowing the petition and declaring the notification under Section 334 (1) of the Act as illegal.8. We are here dealing with the validity of the notification issued by the State Government under sub-sections (1) and (4) of Section 334. We are not called upon to pronounce upon the validity of the demands for licence free and other taxes levied by the Notified Town Committee. The Company may, if so advised, challenge the validity of the demands for the licence fee and the municipal taxes in appropriate proceedings.
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5. In paragraph 14 of the petition it is averred by the Amalgamated Tea Company Ltd., that "the inclusion of the plantation area of the petitioner within the jurisdiction of the Naharkatia Town Committee is not at all bone fide, inasmuch as it was made not with a view to provide improved arrangements or amenities to the inhabitants of the said plantation, but solely with the motive of augmenting the income of the said Town Committee without the obligation or necessity of any expenditure of municipal funds for providing anything in return as contemplated by law." The State of Assam it was claimed by the Company, had in issuing the notification, which included the plantation area of the Naharkatia Tea Estate, no acted bona fide. But no particulars were given of that plea. The plea raised on behalf of the Company was denied by the State of Assam. The Company tendered no evidence in support of the plea that the notification dated December 4, 1959, was issued for a collateralthe mere circumstance that in respect of some pockets in the specified area there may already exist arrangements made at private expense municipal facilities and amenities which after the constitution of the notified area, obligation to provide which may lie upon the Town Committee, it does not follow that in signifying its intention to declare the specified area, the State Government acted for a collateral purpose. The High Court was of the view that the Amalgamated Tea Company Ltd. had made arrangements for lighting, maintenance of roads, conservancy,hospital amenities and other welfare arrangements, and since improved arrangements were not necessary the notification of the State Government must be regarded as "mala fide". The notification of the State Government signifying its intention to declare a specified area as one in which improved arrangements may by made is undoubtedly not conclusive: in appropriate cases the validity of the notification may be challenged. But in the present case no ground has been made out on which such a challenge may be sustained.7. The Company raised no objection to the preliminary notification dated May 22, 1958, issued under(1) of Section 334 of the Assam Municipal Act, 1956. The writ petition was filed years after the constitution of the notified Town Committee and only after the demands for tax were made. Prima facie, such, a petition was, as characterised by counsel for the State of Assam, a "speculative petition". In our judgment, the High Court was in error in allowing the petition and declaring the notification under Section 334 (1) of the Act as illegal.8. We are here dealing with the validity of the notification issued by the State Government under(1) and (4) of Section 334. We are not called upon to pronounce upon the validity of the demands for licence free and other taxes levied by the Notified Town Committee. The Company may, if so advised, challenge the validity of the demands for the licence fee and the municipal taxes in appropriate proceedings.
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Rameshwar Prasad Etc., Etc Vs. State of Uttar Pradesh and Others | It says that the State Government may issue such directions of a general character as it may consider necessary in the public interest What is the meaning of the term public interest ? In the context of the Act, it takes within its fold several factors such as, the maximum number of permits that may be issued on a route or in any area having regard to the needs and convenience of the travelling public, the non-availability of sufficient number of stage carriage services in other routes or areas which may be in need of running of additional services, the problems of law and order, availability of fuel, problems arising out of atmospheric pollution caused by a large number of motor vehicles operating in any route or area, the condition of roads P and bridges on the routes, uneconomic running of stage carriage services leading to elimination of small operators and employment of more capital than necessary in any sector leading to starvation of capital investment in other sectors etc. Public interest under the Act does not mean the interest of the operators or of the passengers only. We nave to bear in mind that like every other economic activity the running of stage carriage service is an activity which involves use of scarce or limited productive resources. Motor Transport involves a huge capital investment on motor vehicles, training of competent drivers and mechanics establishment of workshops, construction of safe roads and bridges, deployment of sufficient number of policemen to preserve law and order and several other matters. To say that larger the number of stage carriages in any route or area more convenient it would be to the members of the public is an over simplification of a problem with myriad facts affecting the general public. If we run through the various provisions of the Act it becomes clear how much attention is given by it to various matters affecting public interest. There are provisions relating to licensing of drivers on the basis of their competence, licensing of conductors, specifications to which the motor vehicles should conform, coordination of road and rail transport, prevention of deterioration of the road system, prevention of uneconomic competition among motor vehicles, fixation of reasonable fare, compliance by motor vehicles with the prescribed time table, construction of bus stands with necessary amenities, maintenance of standards of comfort and cleanliness in the vehicles, development of inter-State tourist traffic and several other matters with the object of making available adequate and efficient transport facilities to all parts of the country. Any direction given by the State Government under section 43-A of the Act should therefore, be in conformity with all matters regarding which the statute has made provision. In this situation to say that any number of permits can be issued to any eligible operator without any upper limit is to overstep the limits of delegation of statutory power and to make a mockery of an important economic activity like the motor transport.It is surprising that the High Court has reached the conclusion that the preferences and reservations to be observed while granting permits as stated in the proviso to sub-section (1) to section 47 and in sub sections (1A) to (1H) of section 47 have not been contravened as there is no restriction on the number of permits to be issued. The observation of the High Court that preferences have to be shown and reservations have to be made only when there is scarcity of permits and since there are no restrictions on the number of permits to be issued there is no necessity to make any such provision really shocks us. The High Court erred in not noticing that it was dealing with a vital economic activity which could be carried on at a huge cost both to the operator and to the Government and that by issuing the notification containing a direction to the Transport Authorities to issue limitless number of permits, the State Government had attempted to circumvent sub-sections (1) and (1A) to (1H) of section 47 of the Act. Preferences and reservations have value only when there is a limit on the number of permits to be issued and in the context of the Act there should necessarily he a limit on the issue of permits to operate motor vehicles in respect of any route or area. By the method adopted by it the State Government has virtually allowed the rich and well-to-do businessman who can bear the loss for some time to introduce any number of vehicles on a route or in any area until all the small operators who also may take the permits to leave the field owing to the inevitable loss that ensues by the operation of an unlimited number of vehicles. The learned Attorney General while conceding that the amendment made in 1978 to section 47 of the Act should prevail contended that they had not been violated by the impugned notifications. We do not agree with the above submission. We are clearly of t he view that the State Government has transgressed the provisions contained in sub-section (1) and sub-sections (1A) to (1H) of section 47. It has failed to comply with the duty imposed on it by those provisions.We are of the view that the two notifications are clearly outside the scope of the Act. The first notification which directs that all eligible applicants shall be granted permits and that there shall be no upper limit to the number of permits to be issued for stage carriages and the second notification which says that the Transport Authorities shall have regard only to matters referred to in clauses (a), (b), (d) and (f) of sub-section (1) of section 47 of the Act and thereby precludes the Transport Authorities to take into consideration matters contained in the proviso to section 47(1) and in sub-section (1A) to (1H) of section 47 of the Act are ultra vires the Act and they are liable to he struck down.10 | 1[ds]The validity of section 43-A of the Act introduced by the U. P. Legislature and of the Notification dated March P 3 0, 1972 issued by the Government of Uttar. Pradesh pursuant to that section was questioned in some writ petitions filed by some motor operators in the High Court of Allahabad. Those petitions were dismissed. On appeal this Court upheld the validity of section 43-A of the Act as well as the Notification by its judgment in Hans Raj Kehar &Ors. v. The State of U.P. &Ors.(1) which was delivered on December 4, 1974. Within about three and half years from the date of the above said notification the Government of Uttar Pradesh realised that it was necessary to review the whole question of issuing permits to all eligible applicants. Accordingly the State Government issued a Notification on September 24, 1975 which ran asin exercise of the power conferred by Section 43-A ofthe Motor Vehicles Act, 1939 the State Government was by notification No. 1188-T/XXX-4, dated March 30, 1972, pleased to direct that stage carriage permit s (except in respect of routes or areas aforesaid) contract carriage permits and public carrier permits shall be granted according to the provisions of the said Act to all eligible applicants:And whereas, on further consideration the State Government is of opinion that the policy of granting such permits to all eligible applicants requires review with a view to:(a) Preventing unproductive expenditure and under utilization of capital and fuel.(b) Preventing elimination of small operators due to unfair competition resulting from the issue of more permits than required for a route.(c) Facilitating long term planning of passenger road transportHigh Court further proceeded to observe that though the tow impugned notifications did not follow the procedure prescribed by sub-section (2) of section 43-A as it is now in force in the State of Uttar Pradesh, they could be sustained under sub-sec. (1) of section 43-A which authorised the State Government to issue such directions of a general character as it might consider necessary or expedient in the public interest in respect of any matter relating to road transport to the State Transport Authority or to the Regional Transport Authority and which required such authority to give effect to any such directions. The High Court also relied upon the decision of this Court in Hans Raj Kehars case (supra) to hold that larger number of buses operating on different routes would be for the convenience and benefit of the travelling public.We may here state that any observations made in Hans Raj Rehars case (supra) would be inapplicable so far as these cases presently before us are concerned. In that case the Court was concerned with sub-section (2) of section 43-A of the Act as it stood then which was a provision enacted by the Legislature. That sub- section provided that without prejudice to the generality of the power contained in section 43-A(1) of the Act where the State Government was of opinion that it was in public interest to grant stage carriage permits (except) in respect of routes or areas for which schemes have been published under section 68 (C) or contract carriage permits or public carrier permits to all eligible applicants it may issue appropriate directions as stated therein. That sub-section contained a clear legislative policy which considered that there could be no public prejudice if all eligible applicants were granted permits. Without saying anything more on the point, it may be stated that whatever this Court may have observed while considering that provision would not apply now as there is a clear departure made by the Legislature from that policy when it enacted the new sub-section (2) of section 43-A. In the face of this amendment by which the former sub-section (2) of section 43-A which specifically authorised he State Government when it was satisfied that it was necessary to do so in the public interest to issue directions to the Transport Authorities to grant permits to all eligible applicants was deliberately taken away by the State Legislature, the High Court was wrong in holding that such power was still available under sub-section (1) of section 43-A of the Act which was widely worded. The High Court shut its eyes to the realities of the situation when it observed that in this case the contents of the Statement of objects and Reasons were irrelevant as the provisions of section 43-A (1) were very clear. Even without the aid of the Statement of objects and Reasons it has to be held that by the substitution of the former sub-section (2) by the new sub-section (2) in section 43-A the Legislature clearly expressed itself against the policy of granting permits to all eligible applicants without any consideration to the needs of any particular locality or route or to the qualification of applicants. It is a well settled rule of construction of statutes that whenever a court is called upon to interpret an amended provision it has to bear in mind the history of that provision, the mischief which the Legislature attempted to remedy, the remedy provided by the amendment and the reason for providing such remedy. Therefore, after the amendment at any rate it has to be held that sub-section (1) of section 43-A of the Act did not comprehend within its scope the power to issue direction, for issuing permits to all eligible applicants without any sort of restriction relevant to the scheme of the Act. What does section 43-A(1) after all say ? It says that the State Government may issue such directions of a general character as it may consider necessary in the public interest What is the meaning of the term public interest ? In the context of the Act, it takes within its fold several factors such as, the maximum number of permits that may be issued on a route or in any area having regard to the needs and convenience of the travelling public, the non-availability of sufficient number of stage carriage services in other routes or areas which may be in need of running of additional services, the problems of law and order, availability of fuel, problems arising out of atmospheric pollution caused by a large number of motor vehicles operating in any route or area, the condition of roads P and bridges on the routes, uneconomic running of stage carriage services leading to elimination of small operators and employment of more capital than necessary in any sector leading to starvation of capital investment in other sectors etc. Public interest under the Act does not mean the interest of the operators or of the passengers only. We nave to bear in mind that like every other economic activity the running of stage carriage service is an activity which involves use of scarce or limited productive resources. Motor Transport involves a huge capital investment on motor vehicles, training of competent drivers and mechanics establishment of workshops, construction of safe roads and bridges, deployment of sufficient number of policemen to preserve law and order and several other matters. To say that larger the number of stage carriages in any route or area more convenient it would be to the members of the public is an over simplification of a problem with myriad facts affecting the general public. If we run through the various provisions of the Act it becomes clear how much attention is given by it to various matters affecting public interest. There are provisions relating to licensing of drivers on the basis of their competence, licensing of conductors, specifications to which the motor vehicles should conform, coordination of road and rail transport, prevention of deterioration of the road system, prevention of uneconomic competition among motor vehicles, fixation of reasonable fare, compliance by motor vehicles with the prescribed time table, construction of bus stands with necessary amenities, maintenance of standards of comfort and cleanliness in the vehicles, development of inter-State tourist traffic and several other matters with the object of making available adequate and efficient transport facilities to all parts of the country. Any direction given by the State Government under section 43-A of the Act should therefore, be in conformity with all matters regarding which the statute has made provision. In this situation to say that any number of permits can be issued to any eligible operator without any upper limit is to overstep the limits of delegation of statutory power and to make a mockery of an important economic activity like the motor transport.It is surprising that the High Court has reached the conclusion that the preferences and reservations to be observed while granting permits as stated in the proviso to sub-section (1) to section 47 and in sub sections (1A) to (1H) of section 47 have not been contravened as there is no restriction on the number of permits to be issued. The observation of the High Court that preferences have to be shown and reservations have to be made only when there is scarcity of permits and since there are no restrictions on the number of permits to be issued there is no necessity to make any such provision really shocks us. The High Court erred in not noticing that it was dealing with a vital economic activity which could be carried on at a huge cost both to the operator and to the Government and that by issuing the notification containing a direction to the Transport Authorities to issue limitless number of permits, the State Government had attempted to circumvent sub-sections (1) and (1A) to (1H) of section 47 of the Act. Preferences and reservations have value only when there is a limit on the number of permits to be issued and in the context of the Act there should necessarily he a limit on the issue of permits to operate motor vehicles in respect of any route or area. By the method adopted by it the State Government has virtually allowed the rich and well-to-do businessman who can bear the loss for some time to introduce any number of vehicles on a route or in any area until all the small operators who also may take the permits to leave the field owing to the inevitable loss that ensues by the operation of an unlimited number of vehicles. The learned Attorney General while conceding that the amendment made in 1978 to section 47 of the Act should prevail contended that they had not been violated by the impugned notifications. We do not agree with the above submission. We are clearly of t he view that the State Government has transgressed the provisions contained in sub-section (1) and sub-sections (1A) to (1H) of section 47. It has failed to comply with the duty imposed on it by those provisions.We are of the view that the two notifications are clearly outside the scope of the Act. The first notification which directs that all eligible applicants shall be granted permits and that there shall be no upper limit to the number of permits to be issued for stage carriages and the second notification which says that the Transport Authorities shall have regard only to matters referred to in clauses (a), (b), (d) and (f) of sub-section (1) of section 47 of the Act and thereby precludes the Transport Authorities to take into consideration matters contained in the proviso to section 47(1) and in sub-section (1A) to (1H) of section 47 of the Act are ultra vires the Act and they are liable to he struck down. | 1 | 9,174 | 2,091 | ### Instruction:
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It says that the State Government may issue such directions of a general character as it may consider necessary in the public interest What is the meaning of the term public interest ? In the context of the Act, it takes within its fold several factors such as, the maximum number of permits that may be issued on a route or in any area having regard to the needs and convenience of the travelling public, the non-availability of sufficient number of stage carriage services in other routes or areas which may be in need of running of additional services, the problems of law and order, availability of fuel, problems arising out of atmospheric pollution caused by a large number of motor vehicles operating in any route or area, the condition of roads P and bridges on the routes, uneconomic running of stage carriage services leading to elimination of small operators and employment of more capital than necessary in any sector leading to starvation of capital investment in other sectors etc. Public interest under the Act does not mean the interest of the operators or of the passengers only. We nave to bear in mind that like every other economic activity the running of stage carriage service is an activity which involves use of scarce or limited productive resources. Motor Transport involves a huge capital investment on motor vehicles, training of competent drivers and mechanics establishment of workshops, construction of safe roads and bridges, deployment of sufficient number of policemen to preserve law and order and several other matters. To say that larger the number of stage carriages in any route or area more convenient it would be to the members of the public is an over simplification of a problem with myriad facts affecting the general public. If we run through the various provisions of the Act it becomes clear how much attention is given by it to various matters affecting public interest. There are provisions relating to licensing of drivers on the basis of their competence, licensing of conductors, specifications to which the motor vehicles should conform, coordination of road and rail transport, prevention of deterioration of the road system, prevention of uneconomic competition among motor vehicles, fixation of reasonable fare, compliance by motor vehicles with the prescribed time table, construction of bus stands with necessary amenities, maintenance of standards of comfort and cleanliness in the vehicles, development of inter-State tourist traffic and several other matters with the object of making available adequate and efficient transport facilities to all parts of the country. Any direction given by the State Government under section 43-A of the Act should therefore, be in conformity with all matters regarding which the statute has made provision. In this situation to say that any number of permits can be issued to any eligible operator without any upper limit is to overstep the limits of delegation of statutory power and to make a mockery of an important economic activity like the motor transport.It is surprising that the High Court has reached the conclusion that the preferences and reservations to be observed while granting permits as stated in the proviso to sub-section (1) to section 47 and in sub sections (1A) to (1H) of section 47 have not been contravened as there is no restriction on the number of permits to be issued. The observation of the High Court that preferences have to be shown and reservations have to be made only when there is scarcity of permits and since there are no restrictions on the number of permits to be issued there is no necessity to make any such provision really shocks us. The High Court erred in not noticing that it was dealing with a vital economic activity which could be carried on at a huge cost both to the operator and to the Government and that by issuing the notification containing a direction to the Transport Authorities to issue limitless number of permits, the State Government had attempted to circumvent sub-sections (1) and (1A) to (1H) of section 47 of the Act. Preferences and reservations have value only when there is a limit on the number of permits to be issued and in the context of the Act there should necessarily he a limit on the issue of permits to operate motor vehicles in respect of any route or area. By the method adopted by it the State Government has virtually allowed the rich and well-to-do businessman who can bear the loss for some time to introduce any number of vehicles on a route or in any area until all the small operators who also may take the permits to leave the field owing to the inevitable loss that ensues by the operation of an unlimited number of vehicles. The learned Attorney General while conceding that the amendment made in 1978 to section 47 of the Act should prevail contended that they had not been violated by the impugned notifications. We do not agree with the above submission. We are clearly of t he view that the State Government has transgressed the provisions contained in sub-section (1) and sub-sections (1A) to (1H) of section 47. It has failed to comply with the duty imposed on it by those provisions.We are of the view that the two notifications are clearly outside the scope of the Act. The first notification which directs that all eligible applicants shall be granted permits and that there shall be no upper limit to the number of permits to be issued for stage carriages and the second notification which says that the Transport Authorities shall have regard only to matters referred to in clauses (a), (b), (d) and (f) of sub-section (1) of section 47 of the Act and thereby precludes the Transport Authorities to take into consideration matters contained in the proviso to section 47(1) and in sub-section (1A) to (1H) of section 47 of the Act are ultra vires the Act and they are liable to he struck down.10
### Response:
1
### Explanation:
It says that the State Government may issue such directions of a general character as it may consider necessary in the public interest What is the meaning of the term public interest ? In the context of the Act, it takes within its fold several factors such as, the maximum number of permits that may be issued on a route or in any area having regard to the needs and convenience of the travelling public, the non-availability of sufficient number of stage carriage services in other routes or areas which may be in need of running of additional services, the problems of law and order, availability of fuel, problems arising out of atmospheric pollution caused by a large number of motor vehicles operating in any route or area, the condition of roads P and bridges on the routes, uneconomic running of stage carriage services leading to elimination of small operators and employment of more capital than necessary in any sector leading to starvation of capital investment in other sectors etc. Public interest under the Act does not mean the interest of the operators or of the passengers only. We nave to bear in mind that like every other economic activity the running of stage carriage service is an activity which involves use of scarce or limited productive resources. Motor Transport involves a huge capital investment on motor vehicles, training of competent drivers and mechanics establishment of workshops, construction of safe roads and bridges, deployment of sufficient number of policemen to preserve law and order and several other matters. To say that larger the number of stage carriages in any route or area more convenient it would be to the members of the public is an over simplification of a problem with myriad facts affecting the general public. If we run through the various provisions of the Act it becomes clear how much attention is given by it to various matters affecting public interest. There are provisions relating to licensing of drivers on the basis of their competence, licensing of conductors, specifications to which the motor vehicles should conform, coordination of road and rail transport, prevention of deterioration of the road system, prevention of uneconomic competition among motor vehicles, fixation of reasonable fare, compliance by motor vehicles with the prescribed time table, construction of bus stands with necessary amenities, maintenance of standards of comfort and cleanliness in the vehicles, development of inter-State tourist traffic and several other matters with the object of making available adequate and efficient transport facilities to all parts of the country. Any direction given by the State Government under section 43-A of the Act should therefore, be in conformity with all matters regarding which the statute has made provision. In this situation to say that any number of permits can be issued to any eligible operator without any upper limit is to overstep the limits of delegation of statutory power and to make a mockery of an important economic activity like the motor transport.It is surprising that the High Court has reached the conclusion that the preferences and reservations to be observed while granting permits as stated in the proviso to sub-section (1) to section 47 and in sub sections (1A) to (1H) of section 47 have not been contravened as there is no restriction on the number of permits to be issued. The observation of the High Court that preferences have to be shown and reservations have to be made only when there is scarcity of permits and since there are no restrictions on the number of permits to be issued there is no necessity to make any such provision really shocks us. The High Court erred in not noticing that it was dealing with a vital economic activity which could be carried on at a huge cost both to the operator and to the Government and that by issuing the notification containing a direction to the Transport Authorities to issue limitless number of permits, the State Government had attempted to circumvent sub-sections (1) and (1A) to (1H) of section 47 of the Act. Preferences and reservations have value only when there is a limit on the number of permits to be issued and in the context of the Act there should necessarily he a limit on the issue of permits to operate motor vehicles in respect of any route or area. By the method adopted by it the State Government has virtually allowed the rich and well-to-do businessman who can bear the loss for some time to introduce any number of vehicles on a route or in any area until all the small operators who also may take the permits to leave the field owing to the inevitable loss that ensues by the operation of an unlimited number of vehicles. The learned Attorney General while conceding that the amendment made in 1978 to section 47 of the Act should prevail contended that they had not been violated by the impugned notifications. We do not agree with the above submission. We are clearly of t he view that the State Government has transgressed the provisions contained in sub-section (1) and sub-sections (1A) to (1H) of section 47. It has failed to comply with the duty imposed on it by those provisions.We are of the view that the two notifications are clearly outside the scope of the Act. The first notification which directs that all eligible applicants shall be granted permits and that there shall be no upper limit to the number of permits to be issued for stage carriages and the second notification which says that the Transport Authorities shall have regard only to matters referred to in clauses (a), (b), (d) and (f) of sub-section (1) of section 47 of the Act and thereby precludes the Transport Authorities to take into consideration matters contained in the proviso to section 47(1) and in sub-section (1A) to (1H) of section 47 of the Act are ultra vires the Act and they are liable to he struck down.
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Oduru Chenchulakshmamma and Another Vs. Duvvuru Subramanya Reddy | in any court of law." Sub-section (2) of the section categorically declares that the decision of the Tribunal deciding the appeal shall be final and not liable to be questioned in any court of law, in so far as it relates to any of the matters covered by sub-section (1). It goes without saying that if no appeal is filed, a similar finality shall attach to the decision of the Settlement Officer. One of such matters is covered by clause (c) of sub-section (1) and embraces the determination of the question as to who the lawful ryot in respect of any holding is. Questions which a Settlement Officer may be called upon to decide under the said clause (c) would certainly include such as may have resulted from a dispute between two or mo re persons as to who of them is the lawful ryot; and once a dispute of that type has been adjudicated upon by the Settlement Officer, his decision becomes final unless an appeal is filed before the Tribunal, in which event it is the decision of the Tribunal to which finality attaches. In either case the decision is not liable to be called into question in any Court of law. We need not go into further details on the question of interpretation of section 56 of the Madras Act inasmuch as our view is fully supported by another decision of this Court in Muddada Chayanna v. Karnam Narayana and Another etc.. In that case Chinnappa Reddy, J., who delivered the judgment of the Court was concerned with the interpretation to be placed on section 56 of the Andhra Act which repeats word for word the contents of section 56 of the Madras Act. In holding that the authorities mentioned in sub-section (2) of section 56 of the Andhra Act had exclusive jurisdiction to decide a dispu te between rival claimants for a ryotwari patta, this Court approved the decision in T. Munuswami Naidu (died) and Others v. R. Venkata Reddi and Others, in which the same interpretation had been given to section 56 of the Andhra Act as a result of an elaborate discussion. This Court further held that Cherukuru Muthayya v. Gadde Gopala-Krishnayya which was also decided by a Full Bench but had been overruled by a larger Full Bench in M unuswamis case (supra) had been wrongly decided. 3. Faced with the above situation, learned counsel for the plaintiffs sought support for a contrary view from the two Madras cases on which reliance had been placed by the High Court in the impugned judgment. We may state at once that those cases are wholly irrelevant for deciding this case and that the High Court erred in taking them into consideration. In this connection all that need be stated is that section 56 of the Madras Act was repealed by Madras Act XXXIV of 1958 and both the Madras cases above mentioned were decided after section 56 had ceased to be part of the Madras Act. That those cases may well have been differently decided if section 56 had continued to be part of the Madras Act was recognized by Ramachandra Iyer, J ., who decided Krishnaswami Thevars case (supra) with the following observations:- "The Abolition Act as originally enacted contained section 56 which conferred in terms a power to decide any dispute as to who the lawful ryot of a holding is. Sub-section (2) provided for an appeal from such a decision. If that provision were still to exist, it can be said that as the question whether the person was the lawful ryot or not was one to be decided by the Settlement Officer, the issue of ryotwari patta by him presumably after such decision could not be challenged in a civil court; to that extent there would be an ouster of the jurisdiction of the civil court. But section 56(1) has been repealed by Act XXXIV of 1958. There is now no machinery to decide the case of a disputed claim to patta. Thus, if a ryot is entitled to the ryoti land before the notification, he would by virtue of that rig ht be entitled to the grant of ryotwari patta. There is nothing in the procedure to be adopted for the grant of patta under section 11, to justify an adjudication of title. Nor is there anything in the nature of the patta itself to show that there must have been an adjudication of title in favour of the pattadar." Krishnaswami Thevars case was followed in Sanjeevi Naickers case which is again a Single Bench decision in which Ramamurti, J., also made a reference to the repeal of section 56 of the Madras Act by a later Madras enactment. 4. In the above view of the matter no assistance can be drawn by learned counsel for the plaintiff who has to meet the challenge of the provisions of section 56 because that section was a part of the Madras Act on the 1st of October, 1953, and continues to be so in so far as its application to the district of Chittoor in Andhra Pradesh is concerned, the repeal of that section by the Madras Legislature being wholly ineffective in so far as territories forming part of the State of Andhra are concerned. The only other case to which reference was made by learned counsel for the plaintiff was Pinninty Peda Govindayya v. Pinninty Sub barao. That was a case in which sections 3, 4, 7, 12 and 14 of the Andhra Inams (Abolition and Conversion into Ryotwari) Act, 1956 and rule 15 of the rules framed thereunder came in for interpretation. The relevancy of the case is not apparent inasmuch as it makes no reference to a provision similar to the one enacted by section 56 of the Madras Act as forming part of the statute or rules then under consideration. We do not see, therefore, that the plaintiffs case is in any manner advanced by the decision cited. | 1[ds]As already pointed out, Chittoor district (in which lie the lands in dispute) continued to be governed by the provisions of the Madras Act as they stood on the 1st of October, 1953, even after its transfer to the State of Andhra, by re ason of the mandate of section 53 above extracted. After that date the Madras Act could be amended or repealed by the Andhra Pradesh legislature but till that was done, the district of Chittoor would continue to be governed by the Madras Ac t in its unamended form and as it stood on that date. We make it clear, however, that the correction of the error on which the assumption was based would not really make any difference to the decision of the case inasmuch as the relevant provisions of the Madras Act, as they stood on the 1st of October, 1953, are practically the same as the corresponding provisions of the Andhra Act. Apart from sections 3 and 11 to 15, it is section 56 of the Madras Act which clinches the matterSub-section (2) of the section categorically declares that the decision of the Tribunal deciding the appeal shall be final and not liable to be questioned in any court of law, in so far as it relates to any of the matters covered by sub-section (1). It goes without saying that if no appeal is filed, a similar finality shall attach to the decision of the Settlement Officer. One of such matters is covered by clause (c) of sub-section (1) and embraces the determination of the question as to who the lawful ryot in respect of any holding is. Questions which a Settlement Officer may be called upon to decide under the said clause (c) would certainly include such as may have resulted from a dispute between two or mo re persons as to who of them is the lawful ryot; and once a dispute of that type has been adjudicated upon by the Settlement Officer, his decision becomes final unless an appeal is filed before the Tribunal, in which event it is the decision of the Tribunal to which finality attaches. In either case the decision is not liable to be called into question in any Court of law. We need not go into further details on the question of interpretation of section 56 of the Madras Act inasmuch as our view is fully supported by another decision of this Court in Muddada Chayanna v. Karnam Narayana and Another etc4. In the above view of the matter no assistance can be drawn by learned counsel for the plaintiff who has to meet the challenge of the provisions of section 56 because that section was a part of the Madras Act on the 1st of October, 1953, and continues to be so in so far as its application to the district of Chittoor in Andhra Pradesh is concerned, the repeal of that section by the Madras Legislature being wholly ineffective in so far as territories forming part of the State of Andhra are concernedThe relevancy of the case is not apparent inasmuch as it makes no reference to a provision similar to the one enacted by section 56 of the Madras Act as forming part of the statute or rules then under consideration. We do not see, therefore, that the plaintiffs case is in any manner advanced by the decision cited. | 1 | 3,492 | 615 | ### Instruction:
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in any court of law." Sub-section (2) of the section categorically declares that the decision of the Tribunal deciding the appeal shall be final and not liable to be questioned in any court of law, in so far as it relates to any of the matters covered by sub-section (1). It goes without saying that if no appeal is filed, a similar finality shall attach to the decision of the Settlement Officer. One of such matters is covered by clause (c) of sub-section (1) and embraces the determination of the question as to who the lawful ryot in respect of any holding is. Questions which a Settlement Officer may be called upon to decide under the said clause (c) would certainly include such as may have resulted from a dispute between two or mo re persons as to who of them is the lawful ryot; and once a dispute of that type has been adjudicated upon by the Settlement Officer, his decision becomes final unless an appeal is filed before the Tribunal, in which event it is the decision of the Tribunal to which finality attaches. In either case the decision is not liable to be called into question in any Court of law. We need not go into further details on the question of interpretation of section 56 of the Madras Act inasmuch as our view is fully supported by another decision of this Court in Muddada Chayanna v. Karnam Narayana and Another etc.. In that case Chinnappa Reddy, J., who delivered the judgment of the Court was concerned with the interpretation to be placed on section 56 of the Andhra Act which repeats word for word the contents of section 56 of the Madras Act. In holding that the authorities mentioned in sub-section (2) of section 56 of the Andhra Act had exclusive jurisdiction to decide a dispu te between rival claimants for a ryotwari patta, this Court approved the decision in T. Munuswami Naidu (died) and Others v. R. Venkata Reddi and Others, in which the same interpretation had been given to section 56 of the Andhra Act as a result of an elaborate discussion. This Court further held that Cherukuru Muthayya v. Gadde Gopala-Krishnayya which was also decided by a Full Bench but had been overruled by a larger Full Bench in M unuswamis case (supra) had been wrongly decided. 3. Faced with the above situation, learned counsel for the plaintiffs sought support for a contrary view from the two Madras cases on which reliance had been placed by the High Court in the impugned judgment. We may state at once that those cases are wholly irrelevant for deciding this case and that the High Court erred in taking them into consideration. In this connection all that need be stated is that section 56 of the Madras Act was repealed by Madras Act XXXIV of 1958 and both the Madras cases above mentioned were decided after section 56 had ceased to be part of the Madras Act. That those cases may well have been differently decided if section 56 had continued to be part of the Madras Act was recognized by Ramachandra Iyer, J ., who decided Krishnaswami Thevars case (supra) with the following observations:- "The Abolition Act as originally enacted contained section 56 which conferred in terms a power to decide any dispute as to who the lawful ryot of a holding is. Sub-section (2) provided for an appeal from such a decision. If that provision were still to exist, it can be said that as the question whether the person was the lawful ryot or not was one to be decided by the Settlement Officer, the issue of ryotwari patta by him presumably after such decision could not be challenged in a civil court; to that extent there would be an ouster of the jurisdiction of the civil court. But section 56(1) has been repealed by Act XXXIV of 1958. There is now no machinery to decide the case of a disputed claim to patta. Thus, if a ryot is entitled to the ryoti land before the notification, he would by virtue of that rig ht be entitled to the grant of ryotwari patta. There is nothing in the procedure to be adopted for the grant of patta under section 11, to justify an adjudication of title. Nor is there anything in the nature of the patta itself to show that there must have been an adjudication of title in favour of the pattadar." Krishnaswami Thevars case was followed in Sanjeevi Naickers case which is again a Single Bench decision in which Ramamurti, J., also made a reference to the repeal of section 56 of the Madras Act by a later Madras enactment. 4. In the above view of the matter no assistance can be drawn by learned counsel for the plaintiff who has to meet the challenge of the provisions of section 56 because that section was a part of the Madras Act on the 1st of October, 1953, and continues to be so in so far as its application to the district of Chittoor in Andhra Pradesh is concerned, the repeal of that section by the Madras Legislature being wholly ineffective in so far as territories forming part of the State of Andhra are concerned. The only other case to which reference was made by learned counsel for the plaintiff was Pinninty Peda Govindayya v. Pinninty Sub barao. That was a case in which sections 3, 4, 7, 12 and 14 of the Andhra Inams (Abolition and Conversion into Ryotwari) Act, 1956 and rule 15 of the rules framed thereunder came in for interpretation. The relevancy of the case is not apparent inasmuch as it makes no reference to a provision similar to the one enacted by section 56 of the Madras Act as forming part of the statute or rules then under consideration. We do not see, therefore, that the plaintiffs case is in any manner advanced by the decision cited.
### Response:
1
### Explanation:
As already pointed out, Chittoor district (in which lie the lands in dispute) continued to be governed by the provisions of the Madras Act as they stood on the 1st of October, 1953, even after its transfer to the State of Andhra, by re ason of the mandate of section 53 above extracted. After that date the Madras Act could be amended or repealed by the Andhra Pradesh legislature but till that was done, the district of Chittoor would continue to be governed by the Madras Ac t in its unamended form and as it stood on that date. We make it clear, however, that the correction of the error on which the assumption was based would not really make any difference to the decision of the case inasmuch as the relevant provisions of the Madras Act, as they stood on the 1st of October, 1953, are practically the same as the corresponding provisions of the Andhra Act. Apart from sections 3 and 11 to 15, it is section 56 of the Madras Act which clinches the matterSub-section (2) of the section categorically declares that the decision of the Tribunal deciding the appeal shall be final and not liable to be questioned in any court of law, in so far as it relates to any of the matters covered by sub-section (1). It goes without saying that if no appeal is filed, a similar finality shall attach to the decision of the Settlement Officer. One of such matters is covered by clause (c) of sub-section (1) and embraces the determination of the question as to who the lawful ryot in respect of any holding is. Questions which a Settlement Officer may be called upon to decide under the said clause (c) would certainly include such as may have resulted from a dispute between two or mo re persons as to who of them is the lawful ryot; and once a dispute of that type has been adjudicated upon by the Settlement Officer, his decision becomes final unless an appeal is filed before the Tribunal, in which event it is the decision of the Tribunal to which finality attaches. In either case the decision is not liable to be called into question in any Court of law. We need not go into further details on the question of interpretation of section 56 of the Madras Act inasmuch as our view is fully supported by another decision of this Court in Muddada Chayanna v. Karnam Narayana and Another etc4. In the above view of the matter no assistance can be drawn by learned counsel for the plaintiff who has to meet the challenge of the provisions of section 56 because that section was a part of the Madras Act on the 1st of October, 1953, and continues to be so in so far as its application to the district of Chittoor in Andhra Pradesh is concerned, the repeal of that section by the Madras Legislature being wholly ineffective in so far as territories forming part of the State of Andhra are concernedThe relevancy of the case is not apparent inasmuch as it makes no reference to a provision similar to the one enacted by section 56 of the Madras Act as forming part of the statute or rules then under consideration. We do not see, therefore, that the plaintiffs case is in any manner advanced by the decision cited.
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Commissioner of Income Tax, West Bengal Iii Vs. Kamal Singh Rampuria | Tribunal rejected the argument of the assessee and held that the assessee had not discharged his duty of returning his income at the proper time, and so, the provisions of section 34(1)(a) of the Act applied. At the instance of the assessee the Appellate Tribunal referred the following question of law to the High Court under section 66(1) of the Act:"Whether, on tile facts and in the circumstances of the case, the assessment made under section 34(1)(a) of the Income-tax Act was justified in law?"2. By its judgment dated 12th September, 1963, the High Court answered the question in the negative and in favour of the assessee.3. On behalf of the appellant it was pointed out that the basis of the reasoning of the High Court was that there no evidence to support the finding of the Tribunal that the Income-tax Officer had reason to believe that there was any omission on the part of tile assessee to disclose fully and truly all material facts necessary for the assessment year 1945-46. It was argued that in doing so, the High Court answered a question entirely different from the one referred to it and therefore exceeded the jurisdiction conferred on it by section 66(1) of the Act. In other words, the argument was that, in the absence of a question whether the finding of the Tribunal was based on no evidence or that it was perverse, the High Court exceeded its jurisdiction in examining for itself the materials in support of the Tribunals finding and acting as a court of appeal. In our opinion, there is justification for the argument put forward on behalf of the appellant. The relevant portion of the order of the Appellate Tribunal reads as follows:"For the assessment year 1945-56 with which we are now concerned, the old procedure of returning the income from the Bikaner Trading Company only was followed and the assessment was completed on April 30, 1946, the interest income being included in the hands of the father on February 28, 1950. No doubt, at the inception, the Income-tax Officer had put the assessees guardian on the wrong end by taxing incorrectly interest income in his hands. So, to an extent, the assessee was justified in not returning this income, but in so far as the father had not chosen to take the assessment made on him but was contesting it by taking proceedings under section 66(1), he hoped that the assessment made on him would be cancelled. At any rate, when the reference application was made to the High Court then at least a duty lay upon him as guardian of the minor to return the income from Hazarimal Hiralal in the return of the assessee. Not having done so, he must be said to have deliberately kept back the source of income from the department"The relevant passage of the judgment of the High Court states:"...... it appears to us that the Income-tax Officer could have no reason, on the materials before him, to believe that there had been any omission to disclose material facts as stated before. On the background of the facts stated above, we are of opinion that the finding made by the Tribunal in this regard was not justifiable. It is undoubtedly true that the finding of fact made by the Tribunal cannot be interfered with by this court, but we consider that a finding on a question of fact regarding the aforesaid matter is open to attack under section 66 of the Act as erroneous in law, as we find that there is no evidence to support it, and it is perverse as it has been reached without due consideration of the several matters discussed above for such a determinationWe are therefore of opinion that there was no non-disclosure of material facts truly and fully as contended on behalf of the department, and therefore the question must be answered in the negative."4. It is well established that the High Court is not a court of appeal in a reference under section 66 of the Act and it is not open to the High Court in such a reference to embark upon a reappraisal of the evidence and to arrive at findings of fact contrary to those of the Appellate Tribunal. It is the duty of the High Court to confine itself to the facts as found by the Appellate Tribunal and answer the question of law in the setting and context of those facts. It is true that the finding of fact will be defective in law if there is no evidence to support it or if the finding is unreasonable or perverse. But in the hearing of a reference under section 66 of the Act it is not open to the assessee to challenge such a finding of fact unless be has applied for a reference of the specific question under section 66(1). In India Cements Ltd. v. Commissioner of Income-tax, it was pointed out by this court that in a reference the High Court must accept the findings of facts reached by the Appellate Tribunal and it is for the party who applied for a reference to challenge those findings of fact, first, by an application under section 66(1). If the party concerned has failed to file an application under section 66(1) expressly raising the question about the validity of the findings of fact, he is not entitled to urge before the High Court that the finding was vitiated for any reason. The same view has been expressed by this court in a later case in Commissioner of Income-tax v. Sri Meenakshi Mills Ltd. We are therefore of the opinion that the High Court was in error in reappraising the evidence before the Appellate Tribunal and in interfering with its finding that the Income-tax Officer had no reason to believe that there was an omission on the part of the assessee to disclose fully and truly all tile material facts necessary for the assessmentFor these reasons, | 1[ds]In our opinion, there is justification for the argument put forward on behalf of the appellant. The relevant portion of the order of the Appellate Tribunal reads asthe assessment year 1945-56 with which we are now concerned, the old procedure of returning the income from the Bikaner Trading Company only was followed and the assessment was completed on April 30, 1946, the interest income being included in the hands of the father on February 28, 1950. No doubt, at the inception, the Income-tax Officer had put the assessees guardian on the wrong end by taxing incorrectly interest income in his hands. So, to an extent, the assessee was justified in not returning this income, but in so far as the father had not chosen to take the assessment made on him but was contesting it by taking proceedings under section 66(1), he hoped that the assessment made on him would be cancelled. At any rate, when the reference application was made to the High Court then at least a duty lay upon him as guardian of the minor to return the income from Hazarimal Hiralal in the return of the assessee. Not having done so, he must be said to have deliberately kept back the source of income from the department"The relevant passage of the judgment of the High Courtit appears to us that the Income-tax Officer could have no reason, on the materials before him, to believe that there had been any omission to disclose material facts as statedis well established that the High Court is not a court of appeal in a reference under section 66 of the Act and it is not open to the High Court in such a reference to embark upon a reappraisal of the evidence and to arrive at findings of fact contrary to those of the Appellate Tribunal. It is the duty of the High Court to confine itself to the facts as found by the Appellate Tribunal and answer the question of law in the setting and context of those facts. It is true that the finding of fact will be defective in law if there is no evidence to support it or if the finding is unreasonable or perverse. But in the hearing of a reference under section 66 of the Act it is not open to the assessee to challenge such a finding of fact unless be has applied for a reference of the specific question under section 66(1). In India Cements Ltd. v. Commissioner of Income-tax, it was pointed out by this court that in a reference the High Court must accept the findings of facts reached by the Appellate Tribunal and it is for the party who applied for a reference to challenge those findings of fact, first, by an application under section 66(1). If the party concerned has failed to file an application under section 66(1) expressly raising the question about the validity of the findings of fact, he is not entitled to urge before the High Court that the finding was vitiated for any reason. The same view has been expressed by this court in a later case in Commissioner of Income-tax v. Sri Meenakshi Mills Ltd. We are therefore of the opinion that the High Court was in error in reappraising the evidence before the Appellate Tribunal and in interfering with its finding that the Income-tax Officer had no reason to believe that there was an omission on the part of the assessee to disclose fully and truly all tile material facts necessary for thethe background of the facts stated above, we are of opinion that the finding made by the Tribunal in this regard was not justifiable. It is undoubtedly true that the finding of fact made by the Tribunal cannot be interfered with by this court, but we consider that a finding on a question of fact regarding the aforesaid matter is open to attack under section 66 of the Act as erroneous in law, as we find that there is no evidence to support it, and it is perverse as it has been reached without due consideration of the several matters discussed above for such a determinationWe are therefore of opinion that there was no non-disclosure of material facts truly and fully as contended on behalf of the department, and therefore the question must be answered in the negative." | 1 | 1,701 | 785 | ### 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:
Tribunal rejected the argument of the assessee and held that the assessee had not discharged his duty of returning his income at the proper time, and so, the provisions of section 34(1)(a) of the Act applied. At the instance of the assessee the Appellate Tribunal referred the following question of law to the High Court under section 66(1) of the Act:"Whether, on tile facts and in the circumstances of the case, the assessment made under section 34(1)(a) of the Income-tax Act was justified in law?"2. By its judgment dated 12th September, 1963, the High Court answered the question in the negative and in favour of the assessee.3. On behalf of the appellant it was pointed out that the basis of the reasoning of the High Court was that there no evidence to support the finding of the Tribunal that the Income-tax Officer had reason to believe that there was any omission on the part of tile assessee to disclose fully and truly all material facts necessary for the assessment year 1945-46. It was argued that in doing so, the High Court answered a question entirely different from the one referred to it and therefore exceeded the jurisdiction conferred on it by section 66(1) of the Act. In other words, the argument was that, in the absence of a question whether the finding of the Tribunal was based on no evidence or that it was perverse, the High Court exceeded its jurisdiction in examining for itself the materials in support of the Tribunals finding and acting as a court of appeal. In our opinion, there is justification for the argument put forward on behalf of the appellant. The relevant portion of the order of the Appellate Tribunal reads as follows:"For the assessment year 1945-56 with which we are now concerned, the old procedure of returning the income from the Bikaner Trading Company only was followed and the assessment was completed on April 30, 1946, the interest income being included in the hands of the father on February 28, 1950. No doubt, at the inception, the Income-tax Officer had put the assessees guardian on the wrong end by taxing incorrectly interest income in his hands. So, to an extent, the assessee was justified in not returning this income, but in so far as the father had not chosen to take the assessment made on him but was contesting it by taking proceedings under section 66(1), he hoped that the assessment made on him would be cancelled. At any rate, when the reference application was made to the High Court then at least a duty lay upon him as guardian of the minor to return the income from Hazarimal Hiralal in the return of the assessee. Not having done so, he must be said to have deliberately kept back the source of income from the department"The relevant passage of the judgment of the High Court states:"...... it appears to us that the Income-tax Officer could have no reason, on the materials before him, to believe that there had been any omission to disclose material facts as stated before. On the background of the facts stated above, we are of opinion that the finding made by the Tribunal in this regard was not justifiable. It is undoubtedly true that the finding of fact made by the Tribunal cannot be interfered with by this court, but we consider that a finding on a question of fact regarding the aforesaid matter is open to attack under section 66 of the Act as erroneous in law, as we find that there is no evidence to support it, and it is perverse as it has been reached without due consideration of the several matters discussed above for such a determinationWe are therefore of opinion that there was no non-disclosure of material facts truly and fully as contended on behalf of the department, and therefore the question must be answered in the negative."4. It is well established that the High Court is not a court of appeal in a reference under section 66 of the Act and it is not open to the High Court in such a reference to embark upon a reappraisal of the evidence and to arrive at findings of fact contrary to those of the Appellate Tribunal. It is the duty of the High Court to confine itself to the facts as found by the Appellate Tribunal and answer the question of law in the setting and context of those facts. It is true that the finding of fact will be defective in law if there is no evidence to support it or if the finding is unreasonable or perverse. But in the hearing of a reference under section 66 of the Act it is not open to the assessee to challenge such a finding of fact unless be has applied for a reference of the specific question under section 66(1). In India Cements Ltd. v. Commissioner of Income-tax, it was pointed out by this court that in a reference the High Court must accept the findings of facts reached by the Appellate Tribunal and it is for the party who applied for a reference to challenge those findings of fact, first, by an application under section 66(1). If the party concerned has failed to file an application under section 66(1) expressly raising the question about the validity of the findings of fact, he is not entitled to urge before the High Court that the finding was vitiated for any reason. The same view has been expressed by this court in a later case in Commissioner of Income-tax v. Sri Meenakshi Mills Ltd. We are therefore of the opinion that the High Court was in error in reappraising the evidence before the Appellate Tribunal and in interfering with its finding that the Income-tax Officer had no reason to believe that there was an omission on the part of the assessee to disclose fully and truly all tile material facts necessary for the assessmentFor these reasons,
### Response:
1
### Explanation:
In our opinion, there is justification for the argument put forward on behalf of the appellant. The relevant portion of the order of the Appellate Tribunal reads asthe assessment year 1945-56 with which we are now concerned, the old procedure of returning the income from the Bikaner Trading Company only was followed and the assessment was completed on April 30, 1946, the interest income being included in the hands of the father on February 28, 1950. No doubt, at the inception, the Income-tax Officer had put the assessees guardian on the wrong end by taxing incorrectly interest income in his hands. So, to an extent, the assessee was justified in not returning this income, but in so far as the father had not chosen to take the assessment made on him but was contesting it by taking proceedings under section 66(1), he hoped that the assessment made on him would be cancelled. At any rate, when the reference application was made to the High Court then at least a duty lay upon him as guardian of the minor to return the income from Hazarimal Hiralal in the return of the assessee. Not having done so, he must be said to have deliberately kept back the source of income from the department"The relevant passage of the judgment of the High Courtit appears to us that the Income-tax Officer could have no reason, on the materials before him, to believe that there had been any omission to disclose material facts as statedis well established that the High Court is not a court of appeal in a reference under section 66 of the Act and it is not open to the High Court in such a reference to embark upon a reappraisal of the evidence and to arrive at findings of fact contrary to those of the Appellate Tribunal. It is the duty of the High Court to confine itself to the facts as found by the Appellate Tribunal and answer the question of law in the setting and context of those facts. It is true that the finding of fact will be defective in law if there is no evidence to support it or if the finding is unreasonable or perverse. But in the hearing of a reference under section 66 of the Act it is not open to the assessee to challenge such a finding of fact unless be has applied for a reference of the specific question under section 66(1). In India Cements Ltd. v. Commissioner of Income-tax, it was pointed out by this court that in a reference the High Court must accept the findings of facts reached by the Appellate Tribunal and it is for the party who applied for a reference to challenge those findings of fact, first, by an application under section 66(1). If the party concerned has failed to file an application under section 66(1) expressly raising the question about the validity of the findings of fact, he is not entitled to urge before the High Court that the finding was vitiated for any reason. The same view has been expressed by this court in a later case in Commissioner of Income-tax v. Sri Meenakshi Mills Ltd. We are therefore of the opinion that the High Court was in error in reappraising the evidence before the Appellate Tribunal and in interfering with its finding that the Income-tax Officer had no reason to believe that there was an omission on the part of the assessee to disclose fully and truly all tile material facts necessary for thethe background of the facts stated above, we are of opinion that the finding made by the Tribunal in this regard was not justifiable. It is undoubtedly true that the finding of fact made by the Tribunal cannot be interfered with by this court, but we consider that a finding on a question of fact regarding the aforesaid matter is open to attack under section 66 of the Act as erroneous in law, as we find that there is no evidence to support it, and it is perverse as it has been reached without due consideration of the several matters discussed above for such a determinationWe are therefore of opinion that there was no non-disclosure of material facts truly and fully as contended on behalf of the department, and therefore the question must be answered in the negative."
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Laurel Energetics Pvt. Ltd Vs. Securities Exchange Board Of India | three years prior to the proposed acquisition and are disclosed as such pursuant to filings under the listing agreement, the corporate veil is not lifted. The difference between sub regulations (ii), (iv) and (v) on the one hand, and sub regulation (iii) on the other, again shows us that it is impermissible for the court to lift the corporate veil, either partially or otherwise, in a manner that would distort the plain language of the regulation. Where the corporate veil is to be lifted, the regulation itself specifically so states. For this reason also, it is a little difficult to accept Mr. Vishwanathans argument that a reading of the other sub regulations contained within regulation 10 (1) (a) would further his argument in this case.20. We now come to the two judgments of this Court which were cited before us in the context of Rent Acts. Chronologically, the first of these judgments is "Madras Bangalore Transport Co. (West) v. Inder Singh And Others" reported in 1986(2) R.C.R.(Rent) 377 : (1986) 3 SCC 62. In this case, the paragraph relied upon by Mr. Vishwanathan is paragraph 8, which is as under:"As mentioned by us earlier, the Madras-Bangalore Transport Company (West) continued to be in occupation of the premises even after the Caravan Goods Carrier Private Limited came in. They never effaced themselves. The firm allowed Caravan Goods Carrier Private Limited Company, to function from the same premises but Caravan Goods Carrier Private Limited though a separate legal entity, was in fact a creature of the partners of Madras-Banglore Transport Company (West) and was the very image of the firm. The limited company and the partnership firm were two only in name but one for practical purposes. There was substantial identity between the limited company and the partnership firm. We do not think that there was any sub-letting, assignment or parting with possession of the premises by Madras-Banglore Transport Company (West) to Caravan Goods Carrier Private Limited so as to attract Section 14(1) (b) of the Delhi Rent Control Act. In the result the appeal is allowed with costs."21. It can be seen that a partnership firm became a limited company but, on facts it was found that since there was substantial identity between the limited company and the partnership firm, there was no subletting, assignment or parting with possession of the premises so as to contradict Section 14(1)(b) of the Delhi Rent Control Act.22. This case is wholly distinguishable from the present case as in the facts of the present case, the target company is clearly defined and "means" only Rattan Limited. To go behind Rattan Limited would not only be contrary to the clear language of Regulation 10(1)(a) but would also introduce a concept viz lifting the corporate veil by the Court contrary to the Regulation itself, which, as has been pointed out above, also contains sub regulation (iii) which, in the circumstances specified, lifts the corporate veil.23. The second judgment cited before us "Sait Nagjee Purushotam & Co. Ltd. v. Vimalabai Prabhulal and Others" reported in 2005(2) R.C.R.(Rent) 436 : (2005) 8 SCC 252 also does not take us further for the same reasons.24. In fact, even if we were to accept Mr. Vishwanathans argument that the object of the regulation being that promoters should not keep changing, and if on facts it is found that the same set of promoters continue, we should exempt such cases, this would not be possible for another good reason.25. In the case of "M/s. Utkal Contractors and Joinery (P) Ltd. And others v. State of Orissa" reported in 1987 (Supp) SCC 751, a similar argument was turned down in the following terms :"11.Secondly, the validity of the statutory notification cannot be judged merely on the basis of Statement of Objects and Reasons accompanying the Bill. Nor it could be tested by the government policy taken from time to time. The executive policy of the government, or the Statement of Objects and Reasons of the Act or Ordinance cannot control the actual words used in the legislation. In Central Bank of India v. Workmen, S.K. Das, J. said :"...The Statement of Objects and Reasons is not admissible, however, for construing the section; far less can it control the actual words used."12. In State of West Bengal v. Union of India, Sinha, C.J. observed :"...It is however, well settled that the Statement of Objects and Reasons accompanying a Bill, when introduced in Parliament, cannot be used to determine the true meaning and effect of substantive provisions of the statute. They cannot be used except for the limited purpose of understanding the background and the antecedent state of affairs leading up to the legislation. But we cannot use this statement as an aid to the construction of the enactment or to show that the legislature did not intend to acquire the proprietary rights vested in the State or in any way to affect the State Governments rights as owner of minerals. A statute, as passed by Parliament, is the expression of the collective intention of the legislature as a whole, and any statement made by an individual, albeit a Minister, of the intention and objects of the Act cannot be used to cut down the generality of the words used in the statute."26. In the factual scenario before us, having regard to the aforesaid judgment, it is not possible to construe the regulation in the light of its object, when the words used are clear. This statement of the law is of course with the well known caveat that the object of a provision can certainly be used as an extrinsic aid to the interpretation of statutes and subordinate legislation where there is ambiguity in the words used.27. As has already been stated by us, we find the literal language of the regulation clear and beyond any doubt. The language of sub regulation (ii) becomes even clearer when it is contrasted with the language of sub regulation (iii), as has been held by us above. | 0[ds]11. In so far as the facts of the present case are concerned, the definition that we are concerned with is that of a company, and not any other corporate entity. For the purpose of the present case, the Target Company, therefore, means a company whose shares are listed on a Stock Exchange. This would mean, on the facts of the present case, the Rattan Company, whose shares are listed on the two Stock Exchanges as mentioned above. Coming back to Regulation 10, it is thus clear that persons named as promoters in the shareholding pattern filed by the Rattan Company in terms of the listing agreement between the two Stock Exchanges is what is to be looked at. And for this purpose persons must be promoters of the Rattan Company for not less than three years prior to the proposed acquisition in order that the exemption under paragraph 10 would apply. On the facts of this case, therefore, the information memorandum having been filed on 19th July, 2012 pursuant to which listing took place one day later, is the relevant date from which this period is computed. This being the case, three years had not elapsed on 9/10th July, 2014, which was the date on which the earlier purchase of shares had taken place.Although, it is true that this Committees recommendations do disclose that the object of the regulation is to curb the abuse of introduction of new entities as qualifying parties, this again is tempered with a later sentence which states that if schemes do not really involve or deal with a target company per se, then only would the treatment of such open offer obligations be different.When we come to sub regulations (iv) and (v), it is clear that these two sub regulations follow the pattern contained in sub regulation (ii) in as much as when it comes to persons acting in concert, the period should be not less than three years prior to the proposed acquisition, and disclosed as such pursuant to filings under the listing agreement. Also, when it comes to shareholders of a target company who have been persons acting in concert for a period of not less than three years prior to the proposed acquisition and are disclosed as such pursuant to filings under the listing agreement, the corporate veil is not lifted. The difference between sub regulations (ii), (iv) and (v) on the one hand, and sub regulation (iii) on the other, again shows us that it is impermissible for the court to lift the corporate veil, either partially or otherwise, in a manner that would distort the plain language of the regulation. Where the corporate veil is to be lifted, the regulation itself specifically so states. For this reason also, it is a little difficult to accept Mr. Vishwanathans argument that a reading of the other sub regulations contained within regulation 10 (1) (a) would further his argument in this case.It can be seen that a partnership firm became a limited company but, on facts it was found that since there was substantial identity between the limited company and the partnership firm, there was no subletting, assignment or parting with possession of the premises so as to contradict Section 14(1)(b) of the Delhi Rent Control Act.22. This case is wholly distinguishable from the present case as in the facts of the present case, the target company is clearly defined and "means" only Rattan Limited. To go behind Rattan Limited would not only be contrary to the clear language of Regulation 10(1)(a) but would also introduce a concept viz lifting the corporate veil by the Court contrary to the Regulation itself, which, as has been pointed out above, also contains sub regulation (iii) which, in the circumstances specified, lifts the corporate veil.In fact, even if we were to accept Mr. Vishwanathans argument that the object of the regulation being that promoters should not keep changing, and if on facts it is found that the same set of promoters continue, we should exempt such cases, this would not be possible for another good reason.In the factual scenario before us, having regard to the aforesaid judgment, it is not possible to construe the regulation in the light of its object, when the words used are clear. This statement of the law is of course with the well known caveat that the object of a provision can certainly be used as an extrinsic aid to the interpretation of statutes and subordinate legislation where there is ambiguity in the words used.27. As has already been stated by us, we find the literal language of the regulation clear and beyond any doubt. The language of sub regulation (ii) becomes even clearer when it is contrasted with the language of sub regulation (iii), as has been held by us above. | 0 | 4,240 | 910 | ### 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:
three years prior to the proposed acquisition and are disclosed as such pursuant to filings under the listing agreement, the corporate veil is not lifted. The difference between sub regulations (ii), (iv) and (v) on the one hand, and sub regulation (iii) on the other, again shows us that it is impermissible for the court to lift the corporate veil, either partially or otherwise, in a manner that would distort the plain language of the regulation. Where the corporate veil is to be lifted, the regulation itself specifically so states. For this reason also, it is a little difficult to accept Mr. Vishwanathans argument that a reading of the other sub regulations contained within regulation 10 (1) (a) would further his argument in this case.20. We now come to the two judgments of this Court which were cited before us in the context of Rent Acts. Chronologically, the first of these judgments is "Madras Bangalore Transport Co. (West) v. Inder Singh And Others" reported in 1986(2) R.C.R.(Rent) 377 : (1986) 3 SCC 62. In this case, the paragraph relied upon by Mr. Vishwanathan is paragraph 8, which is as under:"As mentioned by us earlier, the Madras-Bangalore Transport Company (West) continued to be in occupation of the premises even after the Caravan Goods Carrier Private Limited came in. They never effaced themselves. The firm allowed Caravan Goods Carrier Private Limited Company, to function from the same premises but Caravan Goods Carrier Private Limited though a separate legal entity, was in fact a creature of the partners of Madras-Banglore Transport Company (West) and was the very image of the firm. The limited company and the partnership firm were two only in name but one for practical purposes. There was substantial identity between the limited company and the partnership firm. We do not think that there was any sub-letting, assignment or parting with possession of the premises by Madras-Banglore Transport Company (West) to Caravan Goods Carrier Private Limited so as to attract Section 14(1) (b) of the Delhi Rent Control Act. In the result the appeal is allowed with costs."21. It can be seen that a partnership firm became a limited company but, on facts it was found that since there was substantial identity between the limited company and the partnership firm, there was no subletting, assignment or parting with possession of the premises so as to contradict Section 14(1)(b) of the Delhi Rent Control Act.22. This case is wholly distinguishable from the present case as in the facts of the present case, the target company is clearly defined and "means" only Rattan Limited. To go behind Rattan Limited would not only be contrary to the clear language of Regulation 10(1)(a) but would also introduce a concept viz lifting the corporate veil by the Court contrary to the Regulation itself, which, as has been pointed out above, also contains sub regulation (iii) which, in the circumstances specified, lifts the corporate veil.23. The second judgment cited before us "Sait Nagjee Purushotam & Co. Ltd. v. Vimalabai Prabhulal and Others" reported in 2005(2) R.C.R.(Rent) 436 : (2005) 8 SCC 252 also does not take us further for the same reasons.24. In fact, even if we were to accept Mr. Vishwanathans argument that the object of the regulation being that promoters should not keep changing, and if on facts it is found that the same set of promoters continue, we should exempt such cases, this would not be possible for another good reason.25. In the case of "M/s. Utkal Contractors and Joinery (P) Ltd. And others v. State of Orissa" reported in 1987 (Supp) SCC 751, a similar argument was turned down in the following terms :"11.Secondly, the validity of the statutory notification cannot be judged merely on the basis of Statement of Objects and Reasons accompanying the Bill. Nor it could be tested by the government policy taken from time to time. The executive policy of the government, or the Statement of Objects and Reasons of the Act or Ordinance cannot control the actual words used in the legislation. In Central Bank of India v. Workmen, S.K. Das, J. said :"...The Statement of Objects and Reasons is not admissible, however, for construing the section; far less can it control the actual words used."12. In State of West Bengal v. Union of India, Sinha, C.J. observed :"...It is however, well settled that the Statement of Objects and Reasons accompanying a Bill, when introduced in Parliament, cannot be used to determine the true meaning and effect of substantive provisions of the statute. They cannot be used except for the limited purpose of understanding the background and the antecedent state of affairs leading up to the legislation. But we cannot use this statement as an aid to the construction of the enactment or to show that the legislature did not intend to acquire the proprietary rights vested in the State or in any way to affect the State Governments rights as owner of minerals. A statute, as passed by Parliament, is the expression of the collective intention of the legislature as a whole, and any statement made by an individual, albeit a Minister, of the intention and objects of the Act cannot be used to cut down the generality of the words used in the statute."26. In the factual scenario before us, having regard to the aforesaid judgment, it is not possible to construe the regulation in the light of its object, when the words used are clear. This statement of the law is of course with the well known caveat that the object of a provision can certainly be used as an extrinsic aid to the interpretation of statutes and subordinate legislation where there is ambiguity in the words used.27. As has already been stated by us, we find the literal language of the regulation clear and beyond any doubt. The language of sub regulation (ii) becomes even clearer when it is contrasted with the language of sub regulation (iii), as has been held by us above.
### Response:
0
### Explanation:
11. In so far as the facts of the present case are concerned, the definition that we are concerned with is that of a company, and not any other corporate entity. For the purpose of the present case, the Target Company, therefore, means a company whose shares are listed on a Stock Exchange. This would mean, on the facts of the present case, the Rattan Company, whose shares are listed on the two Stock Exchanges as mentioned above. Coming back to Regulation 10, it is thus clear that persons named as promoters in the shareholding pattern filed by the Rattan Company in terms of the listing agreement between the two Stock Exchanges is what is to be looked at. And for this purpose persons must be promoters of the Rattan Company for not less than three years prior to the proposed acquisition in order that the exemption under paragraph 10 would apply. On the facts of this case, therefore, the information memorandum having been filed on 19th July, 2012 pursuant to which listing took place one day later, is the relevant date from which this period is computed. This being the case, three years had not elapsed on 9/10th July, 2014, which was the date on which the earlier purchase of shares had taken place.Although, it is true that this Committees recommendations do disclose that the object of the regulation is to curb the abuse of introduction of new entities as qualifying parties, this again is tempered with a later sentence which states that if schemes do not really involve or deal with a target company per se, then only would the treatment of such open offer obligations be different.When we come to sub regulations (iv) and (v), it is clear that these two sub regulations follow the pattern contained in sub regulation (ii) in as much as when it comes to persons acting in concert, the period should be not less than three years prior to the proposed acquisition, and disclosed as such pursuant to filings under the listing agreement. Also, when it comes to shareholders of a target company who have been persons acting in concert for a period of not less than three years prior to the proposed acquisition and are disclosed as such pursuant to filings under the listing agreement, the corporate veil is not lifted. The difference between sub regulations (ii), (iv) and (v) on the one hand, and sub regulation (iii) on the other, again shows us that it is impermissible for the court to lift the corporate veil, either partially or otherwise, in a manner that would distort the plain language of the regulation. Where the corporate veil is to be lifted, the regulation itself specifically so states. For this reason also, it is a little difficult to accept Mr. Vishwanathans argument that a reading of the other sub regulations contained within regulation 10 (1) (a) would further his argument in this case.It can be seen that a partnership firm became a limited company but, on facts it was found that since there was substantial identity between the limited company and the partnership firm, there was no subletting, assignment or parting with possession of the premises so as to contradict Section 14(1)(b) of the Delhi Rent Control Act.22. This case is wholly distinguishable from the present case as in the facts of the present case, the target company is clearly defined and "means" only Rattan Limited. To go behind Rattan Limited would not only be contrary to the clear language of Regulation 10(1)(a) but would also introduce a concept viz lifting the corporate veil by the Court contrary to the Regulation itself, which, as has been pointed out above, also contains sub regulation (iii) which, in the circumstances specified, lifts the corporate veil.In fact, even if we were to accept Mr. Vishwanathans argument that the object of the regulation being that promoters should not keep changing, and if on facts it is found that the same set of promoters continue, we should exempt such cases, this would not be possible for another good reason.In the factual scenario before us, having regard to the aforesaid judgment, it is not possible to construe the regulation in the light of its object, when the words used are clear. This statement of the law is of course with the well known caveat that the object of a provision can certainly be used as an extrinsic aid to the interpretation of statutes and subordinate legislation where there is ambiguity in the words used.27. As has already been stated by us, we find the literal language of the regulation clear and beyond any doubt. The language of sub regulation (ii) becomes even clearer when it is contrasted with the language of sub regulation (iii), as has been held by us above.
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A. S. Karthikeyan Etc Vs. State Of Kerala & Anr | owners could not recover tax from passengers carried by them between 1 April, 1950 and the date of the retrospective validation of the Act in 1961. Therefore, the tax was unreasonable. It may be stated here that future recoveries were not challenged in that case. As a matter of fact, the right to make future recoveries was conceded. In the present case, the prospective future recoveries are also not challenged. The challenge is confined to retrospective validation only.This Court said in that case:"If the scheme of Section 3 for, the levy and recovery of the tax is valid under entry 56 of List II so far as future recoveries are concerned, it is not easy to see how it can be said that the character of the tax is radically changed in the present circumstances, because it would be very difficult, if not impossible, for the owner to recover the tax from the passengers whom he has carried in the past. The tax recovered retrospectively like the one which will be recovered prospectively still continues to be a tax on passengers and it adopts the same machinery for the recovery of the tax both as to the past as well as to the future".35. The decision in Rai Ramkrishna case, (1964) 1 SCR 897 =(AIR 1963 SC 1667 ) (supra) does not support the contention of the operators. The decision on the other hand shows that tax recovered retrospectively as well as recovered prospectively is the same tax. The character of the tax is not altered. The position is identical in the present case.36. The contention of the operators is fallacious for these reasons.No tax is imposed or collected under Act 34 of 1971. The tax is imposed by Act 25 of 1963. The character as well as incidence of the tax is determined by Act 25 of 1963. The machinery for collection of the tax which was implicit in Act 25 of 1963 was made explicit by Act 18 of 1971. The State Government under Chapter IV of the Motor Vehicles Act, 1939 having regard to various factors mentioned in Section 43(1) of the 1939 Act issues directions to the State Transport Authority relating to the fixing of fares and freights including the maximum and minimum in respect thereof for stage carriages, contract carriages and public carriers. The provisions of Act 34 of 1971 are that while fixing the fares, the Government may take into account the tax, if any, imposed on the passengers and that such fares may be inclusive of the tax payable by the passengers or consignors of goods to the operators under any law dealing with the matter.Under Section 44 of the 1939 Act the State Transport Authority shall give effect to the directions issued by the State Government under Section 43 of the Act. Fare could be fixed either exclusive or inclusive of tax. The State Government fixed the fare on 1 July, 1963 after taking into account the element of tax on passengers and goods imposed by Act 25 of 1963. The operators in collecting fare from passengers in fact collected the tax due from passengers under act 25 of 1963 along with the fare. Section 43 (1A) of the Motor Vehicles Act, 1939 was, therefore, introduced with retrospective effect to clarify the factual basis. There was neither imposition of any new tax by Act 34 of 1971 nor was there any alteration of the character of the tax which had already been imposed. In the present case, the principal Act 25 of 1963 levied the tax. Acts 18 and 34 of 1971 were for the purpose of dispelling the doubts expressed in Thomman case, ILR (1968) 2 Ker 153 = (AIR 1969 Ker 130 ) (supra).37. In the recent decision in B. Srikantiah v. The Regional Transport Authority, Anantapur (1971) Supp SCR 816 = (AIR 1971 SC 1705 ) this Court considered the validity of a notification under Section 43 of the Motor Vehicles Act, 1939. The Madras Vehicles (Taxation of Passengers and Goods) Act, 1952 became applicable to Andhra Pradesh. In 1959 the Andhra Pradesh legislature enacted the Motor Vehicles (Taxation of Passengers and Goods) Andhra Pradesh (Amendment) Act. By that amendment, the rates were increased. The State Authority was directed by the Government to fix maximum fares inclusive of the leviable tax under the Act for the stage carriages. The Andhra Pradesh Amendment Act was challenged. The Andhra Pradesh High Court struck down the Act as unconstitutional. The Legislature thereafter passed a validating Act in 1961. The operators again questioned the Amendment Act on the ground that they had not collected the fare on the enhanced rate fixed by the Transport Authority. The contention in that case was that the enhanced surcharge which became operative on coming into force of 1961 Act could not be sustained without amending the conditions of the permit dealing with the fares leviable by the operators. This Court held that the notification under the Motor Vehicles Act in that case issued under Section 43 of the Act fixing the maximum fare inclusive of the tax had the effect of incorporating the maximum fare as notified including the tax leviable as a condition of the permit. Therefore, it is competent to the Legislature to amend the Motor Vehicles Act by enacting that directions regarding fares can be inclusive of tax.38. The arguments advanced on behalf of the operators fall in view of the cardinal fact that tax was an element included in the fare structure. The retrospective validation cannot be said to be unjust because the operators collected the entire amount. The tax has always been paid by passengers and owners of goods. The tax is not on the income of the operators. There was and is no lack of machinery for collection of these taxes. The operators collected tax as well as fare. The directions regarding fare were validated by Act 34 of 1971 by reason of the litigation between the operation and the State.39. | 0[ds]The heart of the matter is whether tax was included in the fare and, therefore, paid by passengers particularly in the disputed period between July, 1966 and October, 1971. If no tax has in fact been paid by passengers or owners of goods the retrospective validation by Acts 18 and 34 of 1971 of levy and collection of tax and retrospective inclusion of tax within fare could be contended to be unreasonable, unworkable and unconscionable according to the operators.The representation of the operators was in answer to draft directions contained in notification dated 4 March, 1963 containing proposals to revise the fare rates. The draft notification proposed maximum fare at the rate of 3.75 nP per head per kilometre for fast passenger services in the case of Ghat roads and 3 nP per head per kilometre as a maximum fare for ordinary services in the case of other roads. The operators set out the wide disparity between increase in operational cost on the one hand and the inadequacy of the proposed fare rates, on the other. The operators estimated their daily expenses under several heads. One of the heads estimated by the operators was "increase in tax at the revised rate as envisaged by State budget". That is referable to tax on passengers and goods. The operators stated that the maximum fare should be raised to 3.5 nP per kilometre. This was after taking into account the tax element.The representation of the operators shows that the tax on passengers and goods was one of the elements in the fare structure. This becomes apparent in the hearing notes of the Carriage Fare Revision File prepared by the Secretariat. It was calculated that the proposal to increase from the then existing fate of 2.5 nP per kilometre to 3 nP per kilometre would bring an additional income of Rs.40 per day for an ordinary bus of 40 seats operating 200 kilometres per day. The occupation ratio worked out between 60 to 80 per cent. Leaving out margin for occupation ratio the average additional income worked at Rs.30 per vehicle of 40 seats. The existing motor vehicles tax per seat per quarter at the time of the fixation of fare was Rs.37.50 per seat per quarter. The then proposed enhanced tax on vehicles was at Rs.60 per seat per quarter. The existing motor vehicles tax worked at 41.6 nP per day. The enhanced tax worked out at 66.6 nP per day. The increase in motor vehicles tax would impose an additional tax burden of 25 nP per seat per day. The increase in motor vehicles tax would be at Rs.10 per bus of 40 seats a day. The additional cost of operation on account of increase in cost of fuel, spare parts came to 12 nP per mile or 8 nP per kilometre. The operational cost of a bus of 40 seats came to Rs.16 per day. The total additional cost per day of 40 seats on account of vehicles tax and cost of fuel and spare parts came to Rs.26. The additional income as already indicated came to Rs.30 per day. Therefore, the operator was not hit by the proposal for taxation which was taken into consideration. The operators and the Chairman of the State Transport Board demanded further increase in the rate of fare. The entire evidence at the time of the fixation of fare is ample proof of the fact that the incidence of the increase in motor vehicles tax, the increase in tax liability on account of tax on passengers and goods, and additional cost of operation on account of increase in cost of fuel and spare parts were all taken into consideration in fixing the fare with effect from 1 July, 1963.The contention of the operators is fallacious for these reasons.No tax is imposed or collected under Act 34 of 1971. The tax is imposed by Act 25 of 1963. The character as well as incidence of the tax is determined by Act 25 of 1963. The machinery for collection of the tax which was implicit in Act 25 of 1963 was made explicit by Act 18 of 1971. The State Government under Chapter IV of the Motor Vehicles Act, 1939 having regard to various factors mentioned in Section 43(1) of the 1939 Act issues directions to the State Transport Authority relating to the fixing of fares and freights including the maximum and minimum in respect thereof for stage carriages, contract carriages and publicprovisions of Act 34 of 1971 are that while fixing the fares, the Government may take into account the tax, if any, imposed on the passengers and that such fares may be inclusive of the tax payable by the passengers or consignors of goods to the operators under any law dealing with the matter.Under Section 44 of the 1939 Act the State Transport Authority shall give effect to the directions issued by the State Government under Section 43 of the Act. Fare could be fixed either exclusive or inclusive of tax. The State Government fixed the fare on 1 July, 1963 after taking into account the element of tax on passengers and goods imposed by Act 25 of 1963. The operators in collecting fare from passengers in fact collected the tax due from passengers under act 25 of 1963 along with the fare. Section 43 (1A) of the Motor Vehicles Act, 1939 was, therefore, introduced with retrospective effect to clarify the factual basis. There was neither imposition of any new tax by Act 34 of 1971 nor was there any alteration of the character of the tax which had already been imposed. In the present case, the principal Act 25 of 1963 levied the tax. Acts 18 and 34 of 1971 were for the purpose of dispelling the doubts expressed in Thomman case, ILR (1968) 2 Ker 153 = (AIR 1969 Ker 130 ) (supra).Therefore, it is competent to the Legislature to amend the Motor Vehicles Act by enacting that directions regarding fares can be inclusive ofarguments advanced on behalf of the operators fall in view of the cardinal fact that tax was an element included in the fare structure. The retrospective validation cannot be said to be unjust because the operators collected the entire amount. The tax has always been paid by passengers and owners of goods. The tax is not on the income of the operators. There was and is no lack of machinery for collection of these taxes. The operators collected tax as well as fare. The directions regarding fare were validated by Act 34 of 1971 by reason of the litigation between the operation and the State. | 0 | 6,873 | 1,191 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
owners could not recover tax from passengers carried by them between 1 April, 1950 and the date of the retrospective validation of the Act in 1961. Therefore, the tax was unreasonable. It may be stated here that future recoveries were not challenged in that case. As a matter of fact, the right to make future recoveries was conceded. In the present case, the prospective future recoveries are also not challenged. The challenge is confined to retrospective validation only.This Court said in that case:"If the scheme of Section 3 for, the levy and recovery of the tax is valid under entry 56 of List II so far as future recoveries are concerned, it is not easy to see how it can be said that the character of the tax is radically changed in the present circumstances, because it would be very difficult, if not impossible, for the owner to recover the tax from the passengers whom he has carried in the past. The tax recovered retrospectively like the one which will be recovered prospectively still continues to be a tax on passengers and it adopts the same machinery for the recovery of the tax both as to the past as well as to the future".35. The decision in Rai Ramkrishna case, (1964) 1 SCR 897 =(AIR 1963 SC 1667 ) (supra) does not support the contention of the operators. The decision on the other hand shows that tax recovered retrospectively as well as recovered prospectively is the same tax. The character of the tax is not altered. The position is identical in the present case.36. The contention of the operators is fallacious for these reasons.No tax is imposed or collected under Act 34 of 1971. The tax is imposed by Act 25 of 1963. The character as well as incidence of the tax is determined by Act 25 of 1963. The machinery for collection of the tax which was implicit in Act 25 of 1963 was made explicit by Act 18 of 1971. The State Government under Chapter IV of the Motor Vehicles Act, 1939 having regard to various factors mentioned in Section 43(1) of the 1939 Act issues directions to the State Transport Authority relating to the fixing of fares and freights including the maximum and minimum in respect thereof for stage carriages, contract carriages and public carriers. The provisions of Act 34 of 1971 are that while fixing the fares, the Government may take into account the tax, if any, imposed on the passengers and that such fares may be inclusive of the tax payable by the passengers or consignors of goods to the operators under any law dealing with the matter.Under Section 44 of the 1939 Act the State Transport Authority shall give effect to the directions issued by the State Government under Section 43 of the Act. Fare could be fixed either exclusive or inclusive of tax. The State Government fixed the fare on 1 July, 1963 after taking into account the element of tax on passengers and goods imposed by Act 25 of 1963. The operators in collecting fare from passengers in fact collected the tax due from passengers under act 25 of 1963 along with the fare. Section 43 (1A) of the Motor Vehicles Act, 1939 was, therefore, introduced with retrospective effect to clarify the factual basis. There was neither imposition of any new tax by Act 34 of 1971 nor was there any alteration of the character of the tax which had already been imposed. In the present case, the principal Act 25 of 1963 levied the tax. Acts 18 and 34 of 1971 were for the purpose of dispelling the doubts expressed in Thomman case, ILR (1968) 2 Ker 153 = (AIR 1969 Ker 130 ) (supra).37. In the recent decision in B. Srikantiah v. The Regional Transport Authority, Anantapur (1971) Supp SCR 816 = (AIR 1971 SC 1705 ) this Court considered the validity of a notification under Section 43 of the Motor Vehicles Act, 1939. The Madras Vehicles (Taxation of Passengers and Goods) Act, 1952 became applicable to Andhra Pradesh. In 1959 the Andhra Pradesh legislature enacted the Motor Vehicles (Taxation of Passengers and Goods) Andhra Pradesh (Amendment) Act. By that amendment, the rates were increased. The State Authority was directed by the Government to fix maximum fares inclusive of the leviable tax under the Act for the stage carriages. The Andhra Pradesh Amendment Act was challenged. The Andhra Pradesh High Court struck down the Act as unconstitutional. The Legislature thereafter passed a validating Act in 1961. The operators again questioned the Amendment Act on the ground that they had not collected the fare on the enhanced rate fixed by the Transport Authority. The contention in that case was that the enhanced surcharge which became operative on coming into force of 1961 Act could not be sustained without amending the conditions of the permit dealing with the fares leviable by the operators. This Court held that the notification under the Motor Vehicles Act in that case issued under Section 43 of the Act fixing the maximum fare inclusive of the tax had the effect of incorporating the maximum fare as notified including the tax leviable as a condition of the permit. Therefore, it is competent to the Legislature to amend the Motor Vehicles Act by enacting that directions regarding fares can be inclusive of tax.38. The arguments advanced on behalf of the operators fall in view of the cardinal fact that tax was an element included in the fare structure. The retrospective validation cannot be said to be unjust because the operators collected the entire amount. The tax has always been paid by passengers and owners of goods. The tax is not on the income of the operators. There was and is no lack of machinery for collection of these taxes. The operators collected tax as well as fare. The directions regarding fare were validated by Act 34 of 1971 by reason of the litigation between the operation and the State.39.
### Response:
0
### Explanation:
maximum fare at the rate of 3.75 nP per head per kilometre for fast passenger services in the case of Ghat roads and 3 nP per head per kilometre as a maximum fare for ordinary services in the case of other roads. The operators set out the wide disparity between increase in operational cost on the one hand and the inadequacy of the proposed fare rates, on the other. The operators estimated their daily expenses under several heads. One of the heads estimated by the operators was "increase in tax at the revised rate as envisaged by State budget". That is referable to tax on passengers and goods. The operators stated that the maximum fare should be raised to 3.5 nP per kilometre. This was after taking into account the tax element.The representation of the operators shows that the tax on passengers and goods was one of the elements in the fare structure. This becomes apparent in the hearing notes of the Carriage Fare Revision File prepared by the Secretariat. It was calculated that the proposal to increase from the then existing fate of 2.5 nP per kilometre to 3 nP per kilometre would bring an additional income of Rs.40 per day for an ordinary bus of 40 seats operating 200 kilometres per day. The occupation ratio worked out between 60 to 80 per cent. Leaving out margin for occupation ratio the average additional income worked at Rs.30 per vehicle of 40 seats. The existing motor vehicles tax per seat per quarter at the time of the fixation of fare was Rs.37.50 per seat per quarter. The then proposed enhanced tax on vehicles was at Rs.60 per seat per quarter. The existing motor vehicles tax worked at 41.6 nP per day. The enhanced tax worked out at 66.6 nP per day. The increase in motor vehicles tax would impose an additional tax burden of 25 nP per seat per day. The increase in motor vehicles tax would be at Rs.10 per bus of 40 seats a day. The additional cost of operation on account of increase in cost of fuel, spare parts came to 12 nP per mile or 8 nP per kilometre. The operational cost of a bus of 40 seats came to Rs.16 per day. The total additional cost per day of 40 seats on account of vehicles tax and cost of fuel and spare parts came to Rs.26. The additional income as already indicated came to Rs.30 per day. Therefore, the operator was not hit by the proposal for taxation which was taken into consideration. The operators and the Chairman of the State Transport Board demanded further increase in the rate of fare. The entire evidence at the time of the fixation of fare is ample proof of the fact that the incidence of the increase in motor vehicles tax, the increase in tax liability on account of tax on passengers and goods, and additional cost of operation on account of increase in cost of fuel and spare parts were all taken into consideration in fixing the fare with effect from 1 July, 1963.The contention of the operators is fallacious for these reasons.No tax is imposed or collected under Act 34 of 1971. The tax is imposed by Act 25 of 1963. The character as well as incidence of the tax is determined by Act 25 of 1963. The machinery for collection of the tax which was implicit in Act 25 of 1963 was made explicit by Act 18 of 1971. The State Government under Chapter IV of the Motor Vehicles Act, 1939 having regard to various factors mentioned in Section 43(1) of the 1939 Act issues directions to the State Transport Authority relating to the fixing of fares and freights including the maximum and minimum in respect thereof for stage carriages, contract carriages and publicprovisions of Act 34 of 1971 are that while fixing the fares, the Government may take into account the tax, if any, imposed on the passengers and that such fares may be inclusive of the tax payable by the passengers or consignors of goods to the operators under any law dealing with the matter.Under Section 44 of the 1939 Act the State Transport Authority shall give effect to the directions issued by the State Government under Section 43 of the Act. Fare could be fixed either exclusive or inclusive of tax. The State Government fixed the fare on 1 July, 1963 after taking into account the element of tax on passengers and goods imposed by Act 25 of 1963. The operators in collecting fare from passengers in fact collected the tax due from passengers under act 25 of 1963 along with the fare. Section 43 (1A) of the Motor Vehicles Act, 1939 was, therefore, introduced with retrospective effect to clarify the factual basis. There was neither imposition of any new tax by Act 34 of 1971 nor was there any alteration of the character of the tax which had already been imposed. In the present case, the principal Act 25 of 1963 levied the tax. Acts 18 and 34 of 1971 were for the purpose of dispelling the doubts expressed in Thomman case, ILR (1968) 2 Ker 153 = (AIR 1969 Ker 130 ) (supra).Therefore, it is competent to the Legislature to amend the Motor Vehicles Act by enacting that directions regarding fares can be inclusive ofarguments advanced on behalf of the operators fall in view of the cardinal fact that tax was an element included in the fare structure. The retrospective validation cannot be said to be unjust because the operators collected the entire amount. The tax has always been paid by passengers and owners of goods. The tax is not on the income of the operators. There was and is no lack of machinery for collection of these taxes. The operators collected tax as well as fare. The directions regarding fare were validated by Act 34 of 1971 by reason of the litigation between the operation and the State.
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Malwa Bus Service Private Limited Vs. Mohinder Kaur | 1. This is an appeal against the judgment and order of the Punjab and Haryana High Court passed in Civil Revision No. 1965 of 1984 2. Eighty marlas, which is half an acre, of vacant land was rented out by Mohinder Kaur-respondent to the Malwa Bus Service Private Ltd., a transport company, the appellant herein. On July 27, 1979 an eviction petition was moved by the landlord-respondent against the tenant-appellant and one Amar Singh, who is not a party herein, but was a party in the courts below, on the allegations that a portion of the rented land had been sublet by the tenant in favour of Amar Singh, described as the sub-tenant. The other ground of eviction was bona fide requirement for personal use and occupation. The Rent Controller as well as the Appellate Authority held both grounds to be unsubstantiated which led the landlord to move the High Court in revision. The High Court allowed the eviction petition on the ground of sub-letting and this is how the case is before us 3. The High Court allowed the eviction petition on such ground after granting permission to the landlord to introduce additional evidence. It is on the basis of additional evidence alone that the eviction order was passed. The additional evidence is a certified copy of the statement of Amar Singh sub-tenant dated April 15, 1977 more than two years prior to the institution of the eviction petition) in a different suit in which the tenant-appellant herein was not a party. Being not a party. Being not a party, the appellant obviously had no opportunity to have that statement tested in cross-examination. In that statement the sub-tenant appears to have admitted that he had got the site in his possession from the Malwa Bus Service Pvt. Ltd., the appellant herein, Beyond that there is nothing more. Relief to the landlord on such statement of the sub-tenant (who is not a party to the instant proceedings) was granted against both the tenant as also the sub-tenant. Now here lies the error. The High Court was perfectly justified in using that statement against sub-tenant. But it is difficult to conceive that the said statement could be used against the tenant too. It is true that the sub-tenant, as also the tenant, had denied the existence of the sub-tenancy and the sub-tenant stands falsified on account of his earlier statement if his earlier statement if his earlier statement is trustworthy. Be that as it may, the High Court in the facts and circumstances obviously was in error in ordering eviction of the appellant herein on the basis of the said statement of Amar Singh sub-tenant. We have thus no option but to allow the appeal and set aside the order of eviction. Accordingly we do so 4. After having set aside the order it remains to be seen whether the High Court could still go into the question of sub-letting because the other ground of personal necessity, the High Court thought was not necessary to be considered for the view it was taking. On the evicting ground of personal necessity, the matter has to be remanded back to the High Court. When we are remitting the matter back to the High Court, we do not see any reason why the ground of sub-letting be buried for there may yet be material on the record which may justify the finding of sub-letting, which material the High Court has not adverted to. The High Court shall now be free to consider the matter afresh on the plea of sub-letting also. So there is a total remand for a fresh hearing of the matter on all aspects, subject to the observations aforemade | 1[ds]Relief to the landlord on such statement of the(who is not a party to the instant proceedings) was granted against both the tenant as also theNow here lies the error. The High Court was perfectly justified in using that statement againstBut it is difficult to conceive that the said statement could be used against the tenant too. It is true that theas also the tenant, had denied the existence of theant stands falsified on account of his earlier statement if his earlier statement if his earlier statement is trustworthy. Be that as it may, the High Court in the facts and circumstances obviously was in error in ordering eviction of the appellant herein on the basis of the said statement of Amar SinghWe have thus no option but to allow the appeal and set aside the order of eviction. Accordingly we do so | 1 | 669 | 156 | ### 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. This is an appeal against the judgment and order of the Punjab and Haryana High Court passed in Civil Revision No. 1965 of 1984 2. Eighty marlas, which is half an acre, of vacant land was rented out by Mohinder Kaur-respondent to the Malwa Bus Service Private Ltd., a transport company, the appellant herein. On July 27, 1979 an eviction petition was moved by the landlord-respondent against the tenant-appellant and one Amar Singh, who is not a party herein, but was a party in the courts below, on the allegations that a portion of the rented land had been sublet by the tenant in favour of Amar Singh, described as the sub-tenant. The other ground of eviction was bona fide requirement for personal use and occupation. The Rent Controller as well as the Appellate Authority held both grounds to be unsubstantiated which led the landlord to move the High Court in revision. The High Court allowed the eviction petition on the ground of sub-letting and this is how the case is before us 3. The High Court allowed the eviction petition on such ground after granting permission to the landlord to introduce additional evidence. It is on the basis of additional evidence alone that the eviction order was passed. The additional evidence is a certified copy of the statement of Amar Singh sub-tenant dated April 15, 1977 more than two years prior to the institution of the eviction petition) in a different suit in which the tenant-appellant herein was not a party. Being not a party. Being not a party, the appellant obviously had no opportunity to have that statement tested in cross-examination. In that statement the sub-tenant appears to have admitted that he had got the site in his possession from the Malwa Bus Service Pvt. Ltd., the appellant herein, Beyond that there is nothing more. Relief to the landlord on such statement of the sub-tenant (who is not a party to the instant proceedings) was granted against both the tenant as also the sub-tenant. Now here lies the error. The High Court was perfectly justified in using that statement against sub-tenant. But it is difficult to conceive that the said statement could be used against the tenant too. It is true that the sub-tenant, as also the tenant, had denied the existence of the sub-tenancy and the sub-tenant stands falsified on account of his earlier statement if his earlier statement if his earlier statement is trustworthy. Be that as it may, the High Court in the facts and circumstances obviously was in error in ordering eviction of the appellant herein on the basis of the said statement of Amar Singh sub-tenant. We have thus no option but to allow the appeal and set aside the order of eviction. Accordingly we do so 4. After having set aside the order it remains to be seen whether the High Court could still go into the question of sub-letting because the other ground of personal necessity, the High Court thought was not necessary to be considered for the view it was taking. On the evicting ground of personal necessity, the matter has to be remanded back to the High Court. When we are remitting the matter back to the High Court, we do not see any reason why the ground of sub-letting be buried for there may yet be material on the record which may justify the finding of sub-letting, which material the High Court has not adverted to. The High Court shall now be free to consider the matter afresh on the plea of sub-letting also. So there is a total remand for a fresh hearing of the matter on all aspects, subject to the observations aforemade
### Response:
1
### Explanation:
Relief to the landlord on such statement of the(who is not a party to the instant proceedings) was granted against both the tenant as also theNow here lies the error. The High Court was perfectly justified in using that statement againstBut it is difficult to conceive that the said statement could be used against the tenant too. It is true that theas also the tenant, had denied the existence of theant stands falsified on account of his earlier statement if his earlier statement if his earlier statement is trustworthy. Be that as it may, the High Court in the facts and circumstances obviously was in error in ordering eviction of the appellant herein on the basis of the said statement of Amar SinghWe have thus no option but to allow the appeal and set aside the order of eviction. Accordingly we do so
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Modi Tele Fibres Limited Vs. U.P.State Electricity Board | above appeal. 5) We heard Mr. Rajiv Dutta, learned counsel for the appellant and Mr. Pradeep Misra, learned counsel for the respondents. 6) The grievance of the appellant is that even after the closure of their mill and in spite of requests by way of letters and reminders for stopping the electrical supply to the residential colony and for providing a separate metre connection to the residential quarters of their employees, the respondent-UPSEB was unjustifiably claiming power consumption charges from the appellant herein. Alternatively, it was submitted that it had made payment upto March, 1995. However, if the bills for the period upto the date of closure (i.e. upto 10.09.1995) are to be taken into account, then for the period from 01.04.1995 to 10.09.1995, the total amount of bills comes to Rs.1,14,10,734.00 Out of the above, a sum of Rs.49,84,894/- is on account of supply of electricity to the residential quarters which the appellant is not liable to pay as it had sent a notice in June, 1994. In this regard, the admitted liability of the appellant is up to 10.09.1995 which comes to Rs.64,25,840.00. The appellant had a security deposit of Rs.67,46,700/- with the UPSEB and after adjusting the same, it is entitled to receive a sum of Rs.3,20,860/- from the UPSEB. 7) It is not in dispute that the appellant was provided electric connection No. 1008 for supply of electrical energy and an agreement had been executed on 30.09.1994 for supply of 4000 KVA electric load. In the counter affidavit filed on behalf of respondent-UPSEB, it has been specifically stated that the UPSEB, the predecessor in the interest of UP Power Corporation, has no distributing means or any kind of control for contribution and supply of electrical energy to the residential colonies of the workers of the appellant. In fact in the counter affidavit the Board has stated that they were not aware about arrangements made by the appellant for supply of power to their workers and the terms and conditions for such supply as to whether it was free supply or whether the cost of electricity consumed was being deducted from their wages. According to them, the appellant was their consumer and bulk supply of 4000 KVA was being given to it and no bifurcation in the connection as industrial or residential. 8) Learned counsel appearing for the appellant, by drawing our attention to various clauses in the agreement and requests made by them in the form of letters seeking for dis-connection of power supply to the residence of their employees and providing separate meter for their colonies, contended that the respondents were not justified in demanding the amount as if arrears of power consumed by them. We verified the requests made by the appellant. As rightly pointed out by the respondents and in fact it was not disputed that electrical connection was provided to the appellant-factory in service connection No 1008 for supply of electrical energy and an agreement had been executed for the same on 30.09.1994 and supply to residential colony was made by appellant under service connection No. 1008 of appellant. Therefore, appellant cannot escape liability for electricity consumed in the residential colony. It should also be noted that the requests for permanent disconnection made by appellant on 30.06.1995, 13.07.1995 and 07.08.1995 could not be acted upon as under the terms of the supply agreement dated 30.09.1994, there could be no request for termination before the end of two years. Significantly there was no letter for permanent disconnection after the two year period, that is after 30.09.1996. Insofar as letter dated 16.06.1994 requesting for electricity supply to residential quarters, it has to be ignored in view of the subsequent agreement dated 30.09.1994 without separating supply to residential colony. 9) As rightly stated in para 15 of the additional affidavit filed on behalf of the UP Power Corporation, in case the appellant did not want to supply the electricity to the residential colonies of their workers they could have switched off the supply form their distributing mains which were in their custody and possession. Admittedly, the appellant having such a course available, did not do so because of their anticipation that law and order problem would arise. Having failed to disconnect the electricity supply themselves, the appellant can not blame the respondents for not disconnecting the supply. It is true that pursuant to the requests made by the appellant, the respondents/Board could have provided separate connection for the residential connections in their colonies for the benefit of appellants employees. However, as pointed out in the additional affidavit necessary charges, namely, costs and expenses for separate domestic connections were not paid. On the other hand, the appellant was drawing power to their residential colonies in order to provide uninterrupted supply to their employees. In those circumstances and in the light of the specific information furnished in the additional affidavit particularly in paras 4,8,12 and 15, we are unable to accept the stand taken by the appellant. 10) With the materials place before us, we are satisfied that the appellant being consumer and consumed electricity through their service connection No. 1008 it has to pay the amount for the same. We are also of the view that the appellant could have taken effective steps for providing separate power connection to the residential colony of their employees by approaching the respondents depositing necessary charges, cost and by complying with the provisions of the Indian Electricity Act, the Electricity Supply Act, rules and regulations made therein, which they failed to do. All the relevant aspects have duly been considered and rightly rejected by the High Court. In regard to the alternative contentions relating to excessive billing and non-adjustment of security deposit, these factual aspects were not urged before the High Court and cannot be urged for the first time before us. If there is any error in calculation of the amount shown as due, it is open to the appellant to take up that issue separately with the respondents. | 0[ds]10) With the materials place before us, we are satisfied that the appellant being consumer and consumed electricity through their service connection No. 1008 it has to pay the amount for the same. We are also of the view that the appellant could have taken effective steps for providing separate power connection to the residential colony of their employees by approaching the respondents depositing necessary charges, cost and by complying with the provisions of the Indian Electricity Act, the Electricity Supply Act, rules and regulations made therein, which they failed to do. All the relevant aspects have duly been considered and rightly rejected by the High Court. In regard to the alternative contentions relating to excessive billing and non-adjustment of security deposit, these factual aspects were not urged before the High Court and cannot be urged for the first time before us. If there is any error in calculation of the amount shown as due, it is open to the appellant to take up that issue separately with the respondents | 0 | 2,267 | 188 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
above appeal. 5) We heard Mr. Rajiv Dutta, learned counsel for the appellant and Mr. Pradeep Misra, learned counsel for the respondents. 6) The grievance of the appellant is that even after the closure of their mill and in spite of requests by way of letters and reminders for stopping the electrical supply to the residential colony and for providing a separate metre connection to the residential quarters of their employees, the respondent-UPSEB was unjustifiably claiming power consumption charges from the appellant herein. Alternatively, it was submitted that it had made payment upto March, 1995. However, if the bills for the period upto the date of closure (i.e. upto 10.09.1995) are to be taken into account, then for the period from 01.04.1995 to 10.09.1995, the total amount of bills comes to Rs.1,14,10,734.00 Out of the above, a sum of Rs.49,84,894/- is on account of supply of electricity to the residential quarters which the appellant is not liable to pay as it had sent a notice in June, 1994. In this regard, the admitted liability of the appellant is up to 10.09.1995 which comes to Rs.64,25,840.00. The appellant had a security deposit of Rs.67,46,700/- with the UPSEB and after adjusting the same, it is entitled to receive a sum of Rs.3,20,860/- from the UPSEB. 7) It is not in dispute that the appellant was provided electric connection No. 1008 for supply of electrical energy and an agreement had been executed on 30.09.1994 for supply of 4000 KVA electric load. In the counter affidavit filed on behalf of respondent-UPSEB, it has been specifically stated that the UPSEB, the predecessor in the interest of UP Power Corporation, has no distributing means or any kind of control for contribution and supply of electrical energy to the residential colonies of the workers of the appellant. In fact in the counter affidavit the Board has stated that they were not aware about arrangements made by the appellant for supply of power to their workers and the terms and conditions for such supply as to whether it was free supply or whether the cost of electricity consumed was being deducted from their wages. According to them, the appellant was their consumer and bulk supply of 4000 KVA was being given to it and no bifurcation in the connection as industrial or residential. 8) Learned counsel appearing for the appellant, by drawing our attention to various clauses in the agreement and requests made by them in the form of letters seeking for dis-connection of power supply to the residence of their employees and providing separate meter for their colonies, contended that the respondents were not justified in demanding the amount as if arrears of power consumed by them. We verified the requests made by the appellant. As rightly pointed out by the respondents and in fact it was not disputed that electrical connection was provided to the appellant-factory in service connection No 1008 for supply of electrical energy and an agreement had been executed for the same on 30.09.1994 and supply to residential colony was made by appellant under service connection No. 1008 of appellant. Therefore, appellant cannot escape liability for electricity consumed in the residential colony. It should also be noted that the requests for permanent disconnection made by appellant on 30.06.1995, 13.07.1995 and 07.08.1995 could not be acted upon as under the terms of the supply agreement dated 30.09.1994, there could be no request for termination before the end of two years. Significantly there was no letter for permanent disconnection after the two year period, that is after 30.09.1996. Insofar as letter dated 16.06.1994 requesting for electricity supply to residential quarters, it has to be ignored in view of the subsequent agreement dated 30.09.1994 without separating supply to residential colony. 9) As rightly stated in para 15 of the additional affidavit filed on behalf of the UP Power Corporation, in case the appellant did not want to supply the electricity to the residential colonies of their workers they could have switched off the supply form their distributing mains which were in their custody and possession. Admittedly, the appellant having such a course available, did not do so because of their anticipation that law and order problem would arise. Having failed to disconnect the electricity supply themselves, the appellant can not blame the respondents for not disconnecting the supply. It is true that pursuant to the requests made by the appellant, the respondents/Board could have provided separate connection for the residential connections in their colonies for the benefit of appellants employees. However, as pointed out in the additional affidavit necessary charges, namely, costs and expenses for separate domestic connections were not paid. On the other hand, the appellant was drawing power to their residential colonies in order to provide uninterrupted supply to their employees. In those circumstances and in the light of the specific information furnished in the additional affidavit particularly in paras 4,8,12 and 15, we are unable to accept the stand taken by the appellant. 10) With the materials place before us, we are satisfied that the appellant being consumer and consumed electricity through their service connection No. 1008 it has to pay the amount for the same. We are also of the view that the appellant could have taken effective steps for providing separate power connection to the residential colony of their employees by approaching the respondents depositing necessary charges, cost and by complying with the provisions of the Indian Electricity Act, the Electricity Supply Act, rules and regulations made therein, which they failed to do. All the relevant aspects have duly been considered and rightly rejected by the High Court. In regard to the alternative contentions relating to excessive billing and non-adjustment of security deposit, these factual aspects were not urged before the High Court and cannot be urged for the first time before us. If there is any error in calculation of the amount shown as due, it is open to the appellant to take up that issue separately with the respondents.
### Response:
0
### Explanation:
10) With the materials place before us, we are satisfied that the appellant being consumer and consumed electricity through their service connection No. 1008 it has to pay the amount for the same. We are also of the view that the appellant could have taken effective steps for providing separate power connection to the residential colony of their employees by approaching the respondents depositing necessary charges, cost and by complying with the provisions of the Indian Electricity Act, the Electricity Supply Act, rules and regulations made therein, which they failed to do. All the relevant aspects have duly been considered and rightly rejected by the High Court. In regard to the alternative contentions relating to excessive billing and non-adjustment of security deposit, these factual aspects were not urged before the High Court and cannot be urged for the first time before us. If there is any error in calculation of the amount shown as due, it is open to the appellant to take up that issue separately with the respondents
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COMMISSIONER OF INCOME TAX Vs. TEXTOOL COMPANY LTD | the Commissioner of income tax, Coimbatore, w.e.f. 25th February, 1983. While completing assessment, the Assessing Officer allowed a deduction of Rs. 36,22,224/- u/s 40A(7) of the Act. However, deduction for the balance amount was disallowed on the ground that payment towards the gratuity fund was made by the Assessee directly to the LIC and not to an approved gratuity fund and, therefore, it was not allowable u/s 36(1)(v) of the Act. 2. Being aggrieved, the Assessee preferred appeal to the Commissioner of income tax (Appeals). The Commissioner observed that the initial payment of Rs. 50,00,0007- and the annual premium of Rs. 5,57,943/- was made by the Assessee directly to the LIC instead of as a contribution towards the approved gratuity fund; the LIC had accepted the said payment on behalf of the Group Life Assurance Scheme for the exclusive benefit of the employees of the Assessee under the policy issued by it. Upon perusal of the original Master policy issued by the LIC, the Commissioner recorded his satisfaction that the initial contribution as well as annual premium had been credited by the LIC to the Group Life Assurance Scheme on behalf of the Textool Company Ltd. Employees Group Gratuity Fund only, meaning thereby that the insurance policy had been taken in the name of the approved gratuity fund only; this fund was shown as the payee in the policy; vide its letter dated 20th November, 1985, addressed to the L A.C., the Assessee had confirmed that in the subsequent assessment years, they had contributed funds to the Employees Group Gratuity Fund and the trustees in turn had made payment to the LIC in respect of the Textool Company Ltd.; Employees Group Gratuity Assurance Scheme under the said policy and it was only the initial payment and first annual premium had been made directly to the LIC against the said policy. The Commissioner was thus, convinced that by making payment of the amounts in question directly to the LIC, the Assessee had not violated any of the conditions stipulated in Section 36(1)(v) of the Act. Accordingly, the Commissioner came to the conclusion that since, on the facts of the case, the 3. objective of the fund was achieved, a narrow interpretation of the provision would be straining the language of Section 36(1)(v) of the Act so as to deny the deduction claimed by the Assessee. Consequently, the Commissioner allowed the said amount of Rs. 58,84,754/- as deduction for the relevant assessment year. 4. Being dissatisfied with the view taken by the Commissioner, the Revenue took the matter in further appeal to the Tribunal. Relying on its earlier decision in the case of Janambikai Mills Ltd., the Tribunal dismissed the appeal. 5. As stated above, by the impugned order, the afore extracted question, referred at the instance of the revenue, has been answered by the High Court in favour of the Assessee. While answering the question, the High Court has observed as follows: In our opinion, the Commissioner of income tax (Appeals) as well as the Tribunal have correctly held that merely because the payments were made directly to the LIC, the company could not be denied the benefit u/s 36(1)(v) and the amount had to be credited in favour of the Assessee. Both the Commissioner (appeals) as well as the Tribunal have correctly read the law and have correctly relied upon the aforementioned Supreme Court judgment. In our opinion, since the finding of fact is that all the payments made were only towards the Group Gratuity Fund, there would be no question of finding otherwise. 6. Learned Counsel appearing on behalf of the Revenue has submitted before us that the provisions of Section 36(1)(v) of the Act have to be construed strictly and for claiming deduction, conditions laid down in Section 36(1)(v) of the Act must be fulfilled. It is urged that since during the relevant previous year the contribution by the Assessee towards the gratuity fund was not in an approved gratuity fund the High Court was not justified in affirming the view taken by the Commissioner as also by the Tribunal while answering the reference in favour of the Assessee. However, on a query by us as to whether the contribution made by the Assessee in the approved gratuity fund credited by the LIC for the employees of the Assessee and ultimately the entire amount deposited with the LIC came back to the fund created by the Assessee for the benefit of its employees and approved by the Commissioner w.e.f. 25th February, 1983, or not, learned Counsel is not in a position to make a categorical statement in that behalf. 7. Having considered the matter in the light of the background facts, we are of the opinion that there is no merit in the appeal. True that a fiscal statute is to be construed strictly and nothing should be added or subtracted to the language employed in the Section, yet a strict construction of a provision does not rule out the application of the principles of reasonable construction to give effect to the purpose and intention of any particular provision of the Act. (See: Shree Sajjan Mills Ltd. Vs. Commissioner of Income Tax, M.P., Bhopal and Another, . From a bare reading of Section 36(1)(v) of the Act, it is manifest that the real intention behind the provision is that the employer should not have any control over the funds of the irrevocable trust created exclusively for the benefit of the employees. In the instant case, it is evident from the findings recorded by the Commissioner and affirmed by the Tribunal that the Assessee had absolutely no control over the fund created by the LIC for the benefit of the employees of the Assessee and further all the contribution made by the Assessee in the said fund ultimately came back to the Textool Employees Gratuity Fund, approved by the Commissioner with effect from the following previous year. Thus, the conditions stipulated in Section 36(1)(v) of the Act were satisfied. | 0[ds]However, on a query by us as to whether the contribution made by the Assessee in the approved gratuity fund credited by the LIC for the employees of the Assessee and ultimately the entire amount deposited with the LIC came back to the fund created by the Assessee for the benefit of its employees and approved by the Commissioner w.e.f. 25th February, 1983, or not, learned Counsel is not in a position to make a categorical statement in that behalf.7. Having considered the matter in the light of the background facts, we are of the opinion that there is no merit in the appeal. True that a fiscal statute is to be construed strictly and nothing should be added or subtracted to the language employed in the Section, yet a strict construction of a provision does not rule out the application of the principles of reasonable construction to give effect to the purpose and intention of any particular provision of the Act. (See: Shree Sajjan Mills Ltd. Vs. Commissioner of Income Tax, M.P., Bhopal and Another, . From a bare reading of Section 36(1)(v) of the Act, it is manifest that the real intention behind the provision is that the employer should not have any control over the funds of the irrevocable trust created exclusively for the benefit of the employees. In the instant case, it is evident from the findings recorded by the Commissioner and affirmed by the Tribunal that the Assessee had absolutely no control over the fund created by the LIC for the benefit of the employees of the Assessee and further all the contribution made by the Assessee in the said fund ultimately came back to the Textool Employees Gratuity Fund, approved by the Commissioner with effect from the following previous year. Thus, the conditions stipulated in Section 36(1)(v) of the Act were satisfied. | 0 | 1,469 | 347 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
the Commissioner of income tax, Coimbatore, w.e.f. 25th February, 1983. While completing assessment, the Assessing Officer allowed a deduction of Rs. 36,22,224/- u/s 40A(7) of the Act. However, deduction for the balance amount was disallowed on the ground that payment towards the gratuity fund was made by the Assessee directly to the LIC and not to an approved gratuity fund and, therefore, it was not allowable u/s 36(1)(v) of the Act. 2. Being aggrieved, the Assessee preferred appeal to the Commissioner of income tax (Appeals). The Commissioner observed that the initial payment of Rs. 50,00,0007- and the annual premium of Rs. 5,57,943/- was made by the Assessee directly to the LIC instead of as a contribution towards the approved gratuity fund; the LIC had accepted the said payment on behalf of the Group Life Assurance Scheme for the exclusive benefit of the employees of the Assessee under the policy issued by it. Upon perusal of the original Master policy issued by the LIC, the Commissioner recorded his satisfaction that the initial contribution as well as annual premium had been credited by the LIC to the Group Life Assurance Scheme on behalf of the Textool Company Ltd. Employees Group Gratuity Fund only, meaning thereby that the insurance policy had been taken in the name of the approved gratuity fund only; this fund was shown as the payee in the policy; vide its letter dated 20th November, 1985, addressed to the L A.C., the Assessee had confirmed that in the subsequent assessment years, they had contributed funds to the Employees Group Gratuity Fund and the trustees in turn had made payment to the LIC in respect of the Textool Company Ltd.; Employees Group Gratuity Assurance Scheme under the said policy and it was only the initial payment and first annual premium had been made directly to the LIC against the said policy. The Commissioner was thus, convinced that by making payment of the amounts in question directly to the LIC, the Assessee had not violated any of the conditions stipulated in Section 36(1)(v) of the Act. Accordingly, the Commissioner came to the conclusion that since, on the facts of the case, the 3. objective of the fund was achieved, a narrow interpretation of the provision would be straining the language of Section 36(1)(v) of the Act so as to deny the deduction claimed by the Assessee. Consequently, the Commissioner allowed the said amount of Rs. 58,84,754/- as deduction for the relevant assessment year. 4. Being dissatisfied with the view taken by the Commissioner, the Revenue took the matter in further appeal to the Tribunal. Relying on its earlier decision in the case of Janambikai Mills Ltd., the Tribunal dismissed the appeal. 5. As stated above, by the impugned order, the afore extracted question, referred at the instance of the revenue, has been answered by the High Court in favour of the Assessee. While answering the question, the High Court has observed as follows: In our opinion, the Commissioner of income tax (Appeals) as well as the Tribunal have correctly held that merely because the payments were made directly to the LIC, the company could not be denied the benefit u/s 36(1)(v) and the amount had to be credited in favour of the Assessee. Both the Commissioner (appeals) as well as the Tribunal have correctly read the law and have correctly relied upon the aforementioned Supreme Court judgment. In our opinion, since the finding of fact is that all the payments made were only towards the Group Gratuity Fund, there would be no question of finding otherwise. 6. Learned Counsel appearing on behalf of the Revenue has submitted before us that the provisions of Section 36(1)(v) of the Act have to be construed strictly and for claiming deduction, conditions laid down in Section 36(1)(v) of the Act must be fulfilled. It is urged that since during the relevant previous year the contribution by the Assessee towards the gratuity fund was not in an approved gratuity fund the High Court was not justified in affirming the view taken by the Commissioner as also by the Tribunal while answering the reference in favour of the Assessee. However, on a query by us as to whether the contribution made by the Assessee in the approved gratuity fund credited by the LIC for the employees of the Assessee and ultimately the entire amount deposited with the LIC came back to the fund created by the Assessee for the benefit of its employees and approved by the Commissioner w.e.f. 25th February, 1983, or not, learned Counsel is not in a position to make a categorical statement in that behalf. 7. Having considered the matter in the light of the background facts, we are of the opinion that there is no merit in the appeal. True that a fiscal statute is to be construed strictly and nothing should be added or subtracted to the language employed in the Section, yet a strict construction of a provision does not rule out the application of the principles of reasonable construction to give effect to the purpose and intention of any particular provision of the Act. (See: Shree Sajjan Mills Ltd. Vs. Commissioner of Income Tax, M.P., Bhopal and Another, . From a bare reading of Section 36(1)(v) of the Act, it is manifest that the real intention behind the provision is that the employer should not have any control over the funds of the irrevocable trust created exclusively for the benefit of the employees. In the instant case, it is evident from the findings recorded by the Commissioner and affirmed by the Tribunal that the Assessee had absolutely no control over the fund created by the LIC for the benefit of the employees of the Assessee and further all the contribution made by the Assessee in the said fund ultimately came back to the Textool Employees Gratuity Fund, approved by the Commissioner with effect from the following previous year. Thus, the conditions stipulated in Section 36(1)(v) of the Act were satisfied.
### Response:
0
### Explanation:
However, on a query by us as to whether the contribution made by the Assessee in the approved gratuity fund credited by the LIC for the employees of the Assessee and ultimately the entire amount deposited with the LIC came back to the fund created by the Assessee for the benefit of its employees and approved by the Commissioner w.e.f. 25th February, 1983, or not, learned Counsel is not in a position to make a categorical statement in that behalf.7. Having considered the matter in the light of the background facts, we are of the opinion that there is no merit in the appeal. True that a fiscal statute is to be construed strictly and nothing should be added or subtracted to the language employed in the Section, yet a strict construction of a provision does not rule out the application of the principles of reasonable construction to give effect to the purpose and intention of any particular provision of the Act. (See: Shree Sajjan Mills Ltd. Vs. Commissioner of Income Tax, M.P., Bhopal and Another, . From a bare reading of Section 36(1)(v) of the Act, it is manifest that the real intention behind the provision is that the employer should not have any control over the funds of the irrevocable trust created exclusively for the benefit of the employees. In the instant case, it is evident from the findings recorded by the Commissioner and affirmed by the Tribunal that the Assessee had absolutely no control over the fund created by the LIC for the benefit of the employees of the Assessee and further all the contribution made by the Assessee in the said fund ultimately came back to the Textool Employees Gratuity Fund, approved by the Commissioner with effect from the following previous year. Thus, the conditions stipulated in Section 36(1)(v) of the Act were satisfied.
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Krishna Mohan Medical College And Hospital Vs. Union Of India | the deficiency relating to faculty and residents, was each in excess of 30%, in terms of the Regulations, the petitioners are not entitled to establish and/or continue its college/institution thereunder and thus the impugned order is unassailable in law and on facts.18. The contrasting assertions have received our due consideration. The impugned order dated 10.08.2017, it cannot be gainsaid, has to be assuredly tested on the touchstone of the operative directions contained in this Courts order dated 01.08.2017 remanding the issue involved to the Central Government for a fresh consideration on merits after affording opportunity of hearing to the petitioner college/institution. As would be patent from the order presently under scrutiny, the Hearing Committee and for that matter, the Central Government had focused only on two aspects namely, non-cooperation of the petitioner college/institution in the proposed inspection on 09.12.2016 and the subsisting deficiencies relating to faculty and residents, which allegedly is each in excess of 30%. There is no indication whatsoever as to whether the Hearing Committee/the Central Government had, as directed by this Court, re-appraised/reexamined the recommendations views of the MCI, Hearing Committee, DGHS and the Oversight Committee, as available on records. The materials intended by this Court to be taken note of by the Hearing Committee/Central Government did include, amongst others the recommendations of the Oversight Committee contained in its communication dated 14.05.2017, the observations of the DGHS recorded in the proceedings of 17.01.2017 as well as the representation dated 19.11.2016 submitted by the petitioner college/institution qua the deficiencies allegedly noticed by the assessors of the MCI during the inspection on 18-19.11.2016. This assumes importance in view of the fact that the deficiencies relating to faculty and residents, which according to the assessors of the MCI each is in excess of 30%, as noted in that inspection had been controverted and duly explained by the petitioner college/institution with supporting materials. The order dated 10.08.2017 does not contain a semblance of such consideration. To state the least, in view of the eventful backdrop, in which the matter was remanded to the Central Government for a fresh look on merits, in our opinion, it was incumbent on it or its Hearing Committee to scrupulously analyze all the materials on record and arrive at a dispassionate decision on the issue. This visibly has not been done. The factum of non-cooperation of the petitioners in the second inspection on 09.12.2016 was available before this Court at the time of passing of the order dated 01.08.2017 and thus could not have been extended a decisive weightage to conclude against them.19. As the impugned order dated 10.08.2017 would reveal, it is apparent that for all practical purposes, the Hearing Committee/Central Government did not undertake a dispassionate, objective, cautious and rational analysis of the materials on record and in our view, returned wholly casual findings against the petitioner college/institution. This order thus has to be held, not to be in accord with the spirit and purport of the order dated 01.08.2017 passed by this Court. Suffice it to state, the order does not inspire the confidence of this Court to be sustained in the attendant facts and circumstances.20. In the predominant factual setting, noted hereinabove, the approach of the respondents is markedly incompatible with the essence and import of the proviso to Section 10A(4) mandating against disapproval by the Central Government of any scheme for establishment of a college except after giving the person or the college concerned a reasonable opportunity of being heard. Reasonable opportunity of hearing which is synonymous to fair hearing, it is not longer res integra, is an important ingredient of audi alteram partem rule and embraces almost every facet of fair procedure. The rule of fair hearing requires that the affected party should be given an opportunity to meet the case against him effectively and the right to fair hearing takes within its fold a just decision supplemented by reasons and rationale. Reasonable opportunity of hearing or right to fair hearing casts a steadfast and sacrosanct obligation on the adjudicator to ensure fairness in procedure and action, so much so that any remiss or dereliction in connection therewith would be at the pain of invalidation of the decision eventually taken. Every executive authority empowered to take an administrative action having the potential of visiting any person with civil consequences must take care to ensure that justice is not only done but also manifestly appears to have been done.21. No endeavour whatsoever, in our comprehension, has been made by the respondents and that too in the face of an unequivocal direction by this Court, to fairly and consummately examine the materials on record in details before recording a final decision on the issue of confirmation or otherwise of the LOP granted to the petitioner college/institution as on 12.09.2016. True it is that the Regulations do provide for certain norms of infrastructure to be complied with by the applicant college/institution for being qualified for the LOP depending on the stages involved. This however does not obviate the inalienable necessity of affording a reasonable opportunity of hearing to the person or the college/institution concerned vis-a-vis the scheme for establishment of a college before disapproving the same. The manner in which the respondents, in the individual facts of the instant case, have approached the issue, leads to the inevitable conclusion that the materials on record do not support determinatively the allegation of deficiency in course of the process undertaken, as alleged. We are thus of the considered opinion that in view of the persistent defaults and shortcomings in the decision making process of the respondents, the petitioner college/institution ought not to be penalised. Having regard to the progression of events, the assertions made by the petitioners in the representations countering the deficiencies alleged, the observations/views expressed by the Oversight Committee in its communication dated 14.05.2017 and the DGHS in the hearing held on 17.01.2017 negate the findings with regard to the deficiencies as recorded by the assessors of the MCI in the inspections held. | 1[ds]18. The contrasting assertions have received our due consideration. The impugned order dated 10.08.2017, it cannot be gainsaid, has to be assuredly tested on the touchstone of the operative directions contained in this Courts order dated 01.08.2017 remanding the issue involved to the Central Government for a fresh consideration on merits after affording opportunity of hearing to the petitioner college/institution. As would be patent from the order presently under scrutiny, the Hearing Committee and for that matter, the Central Government had focused only on two aspects namely,of the petitioner college/institution in the proposed inspection on 09.12.2016 and the subsisting deficiencies relating to faculty and residents, which allegedly is each in excess of 30%. There is no indication whatsoever as to whether the Hearing Committee/the Central Government had, as directed by this Court,This assumes importance in view of the fact that the deficiencies relating to faculty and residents, which according to the assessors of the MCI each is in excess of 30%, as noted in that inspection had been controverted and duly explained by the petitioner college/institution with supporting materials. The order dated 10.08.2017 does not contain a semblance of such consideration. To state the least, in view of the eventful backdrop, in which the matter was remanded to the Central Government for a fresh look on merits, in our opinion, it was incumbent on it or its Hearing Committee to scrupulously analyze all the materials on record and arrive at a dispassionate decision on the issue. This visibly has not been done. The factum ofof the petitioners in the second inspection on 09.12.2016 was available before this Court at the time of passing of the order dated 01.08.2017 and thus could not have been extended a decisive weightage to conclude against them.19. As the impugned order dated 10.08.2017 would reveal, it is apparent that for all practical purposes, the Hearing Committee/Central Government did not undertake a dispassionate, objective, cautious and rational analysis of the materials on record and in our view, returned wholly casual findings against the petitioner college/institution. This order thus has to be held, not to be in accord with the spirit and purport of the order dated 01.08.2017 passed by this Court. Suffice it to state, the order does not inspire the confidence of this Court to be sustained in the attendant facts and circumstances.20. In the predominant factual setting, noted hereinabove, the approach of the respondents is markedly incompatible with the essence and import of the proviso to Section 10A(4) mandating against disapproval by the Central Government of any scheme for establishment of a college except after giving the person or the college concerned a reasonable opportunity of being heard. Reasonable opportunity of hearing which is synonymous to fair hearing, it is not longer res integra, is an important ingredient of audi alteram partem rule and embraces almost every facet of fair procedure. The rule of fair hearing requires that the affected party should be given an opportunity to meet the case against him effectively and the right to fair hearing takes within its fold a just decision supplemented by reasons and rationale. Reasonable opportunity of hearing or right to fair hearing casts a steadfast and sacrosanct obligation on the adjudicator to ensure fairness in procedure and action, so much so that any remiss or dereliction in connection therewith would be at the pain of invalidation of the decision eventually taken. Every executive authority empowered to take an administrative action having the potential of visiting any person with civil consequences must take care to ensure that justice is not only done but also manifestly appears to have been done.21. No endeavour whatsoever, in our comprehension, has been made by the respondents and that too in the face of an unequivocal direction by this Court, to fairly and consummately examine the materials on record in details before recording a final decision on the issue of confirmation or otherwise of the LOP granted to the petitioner college/institution as on 12.09.2016. True it is that the Regulations do provide for certain norms of infrastructure to be complied with by the applicant college/institution for being qualified for the LOP depending on the stages involved. This however does not obviate the inalienable necessity of affording a reasonable opportunity of hearing to the person or the college/institution concernedthe scheme for establishment of a college before disapproving the same. The manner in which the respondents, in the individual facts of the instant case, have approached the issue, leads to the inevitable conclusion that the materials on record do not support determinatively the allegation of deficiency in course of the process undertaken, as alleged. We are thus of the considered opinion that in view of the persistent defaults and shortcomings in the decision making process of the respondents, the petitioner college/institution ought not to be penalised. Having regard to the progression of events, the assertions made by the petitioners in the representations countering the deficiencies alleged, the observations/views expressed by the Oversight Committee in its communication dated 14.05.2017 and the DGHS in the hearing held on 17.01.2017 negate the findings with regard to the deficiencies as recorded by the assessors of the MCI in the inspections held. | 1 | 5,182 | 934 | ### 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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the deficiency relating to faculty and residents, was each in excess of 30%, in terms of the Regulations, the petitioners are not entitled to establish and/or continue its college/institution thereunder and thus the impugned order is unassailable in law and on facts.18. The contrasting assertions have received our due consideration. The impugned order dated 10.08.2017, it cannot be gainsaid, has to be assuredly tested on the touchstone of the operative directions contained in this Courts order dated 01.08.2017 remanding the issue involved to the Central Government for a fresh consideration on merits after affording opportunity of hearing to the petitioner college/institution. As would be patent from the order presently under scrutiny, the Hearing Committee and for that matter, the Central Government had focused only on two aspects namely, non-cooperation of the petitioner college/institution in the proposed inspection on 09.12.2016 and the subsisting deficiencies relating to faculty and residents, which allegedly is each in excess of 30%. There is no indication whatsoever as to whether the Hearing Committee/the Central Government had, as directed by this Court, re-appraised/reexamined the recommendations views of the MCI, Hearing Committee, DGHS and the Oversight Committee, as available on records. The materials intended by this Court to be taken note of by the Hearing Committee/Central Government did include, amongst others the recommendations of the Oversight Committee contained in its communication dated 14.05.2017, the observations of the DGHS recorded in the proceedings of 17.01.2017 as well as the representation dated 19.11.2016 submitted by the petitioner college/institution qua the deficiencies allegedly noticed by the assessors of the MCI during the inspection on 18-19.11.2016. This assumes importance in view of the fact that the deficiencies relating to faculty and residents, which according to the assessors of the MCI each is in excess of 30%, as noted in that inspection had been controverted and duly explained by the petitioner college/institution with supporting materials. The order dated 10.08.2017 does not contain a semblance of such consideration. To state the least, in view of the eventful backdrop, in which the matter was remanded to the Central Government for a fresh look on merits, in our opinion, it was incumbent on it or its Hearing Committee to scrupulously analyze all the materials on record and arrive at a dispassionate decision on the issue. This visibly has not been done. The factum of non-cooperation of the petitioners in the second inspection on 09.12.2016 was available before this Court at the time of passing of the order dated 01.08.2017 and thus could not have been extended a decisive weightage to conclude against them.19. As the impugned order dated 10.08.2017 would reveal, it is apparent that for all practical purposes, the Hearing Committee/Central Government did not undertake a dispassionate, objective, cautious and rational analysis of the materials on record and in our view, returned wholly casual findings against the petitioner college/institution. This order thus has to be held, not to be in accord with the spirit and purport of the order dated 01.08.2017 passed by this Court. Suffice it to state, the order does not inspire the confidence of this Court to be sustained in the attendant facts and circumstances.20. In the predominant factual setting, noted hereinabove, the approach of the respondents is markedly incompatible with the essence and import of the proviso to Section 10A(4) mandating against disapproval by the Central Government of any scheme for establishment of a college except after giving the person or the college concerned a reasonable opportunity of being heard. Reasonable opportunity of hearing which is synonymous to fair hearing, it is not longer res integra, is an important ingredient of audi alteram partem rule and embraces almost every facet of fair procedure. The rule of fair hearing requires that the affected party should be given an opportunity to meet the case against him effectively and the right to fair hearing takes within its fold a just decision supplemented by reasons and rationale. Reasonable opportunity of hearing or right to fair hearing casts a steadfast and sacrosanct obligation on the adjudicator to ensure fairness in procedure and action, so much so that any remiss or dereliction in connection therewith would be at the pain of invalidation of the decision eventually taken. Every executive authority empowered to take an administrative action having the potential of visiting any person with civil consequences must take care to ensure that justice is not only done but also manifestly appears to have been done.21. No endeavour whatsoever, in our comprehension, has been made by the respondents and that too in the face of an unequivocal direction by this Court, to fairly and consummately examine the materials on record in details before recording a final decision on the issue of confirmation or otherwise of the LOP granted to the petitioner college/institution as on 12.09.2016. True it is that the Regulations do provide for certain norms of infrastructure to be complied with by the applicant college/institution for being qualified for the LOP depending on the stages involved. This however does not obviate the inalienable necessity of affording a reasonable opportunity of hearing to the person or the college/institution concerned vis-a-vis the scheme for establishment of a college before disapproving the same. The manner in which the respondents, in the individual facts of the instant case, have approached the issue, leads to the inevitable conclusion that the materials on record do not support determinatively the allegation of deficiency in course of the process undertaken, as alleged. We are thus of the considered opinion that in view of the persistent defaults and shortcomings in the decision making process of the respondents, the petitioner college/institution ought not to be penalised. Having regard to the progression of events, the assertions made by the petitioners in the representations countering the deficiencies alleged, the observations/views expressed by the Oversight Committee in its communication dated 14.05.2017 and the DGHS in the hearing held on 17.01.2017 negate the findings with regard to the deficiencies as recorded by the assessors of the MCI in the inspections held.
### Response:
1
### Explanation:
18. The contrasting assertions have received our due consideration. The impugned order dated 10.08.2017, it cannot be gainsaid, has to be assuredly tested on the touchstone of the operative directions contained in this Courts order dated 01.08.2017 remanding the issue involved to the Central Government for a fresh consideration on merits after affording opportunity of hearing to the petitioner college/institution. As would be patent from the order presently under scrutiny, the Hearing Committee and for that matter, the Central Government had focused only on two aspects namely,of the petitioner college/institution in the proposed inspection on 09.12.2016 and the subsisting deficiencies relating to faculty and residents, which allegedly is each in excess of 30%. There is no indication whatsoever as to whether the Hearing Committee/the Central Government had, as directed by this Court,This assumes importance in view of the fact that the deficiencies relating to faculty and residents, which according to the assessors of the MCI each is in excess of 30%, as noted in that inspection had been controverted and duly explained by the petitioner college/institution with supporting materials. The order dated 10.08.2017 does not contain a semblance of such consideration. To state the least, in view of the eventful backdrop, in which the matter was remanded to the Central Government for a fresh look on merits, in our opinion, it was incumbent on it or its Hearing Committee to scrupulously analyze all the materials on record and arrive at a dispassionate decision on the issue. This visibly has not been done. The factum ofof the petitioners in the second inspection on 09.12.2016 was available before this Court at the time of passing of the order dated 01.08.2017 and thus could not have been extended a decisive weightage to conclude against them.19. As the impugned order dated 10.08.2017 would reveal, it is apparent that for all practical purposes, the Hearing Committee/Central Government did not undertake a dispassionate, objective, cautious and rational analysis of the materials on record and in our view, returned wholly casual findings against the petitioner college/institution. This order thus has to be held, not to be in accord with the spirit and purport of the order dated 01.08.2017 passed by this Court. Suffice it to state, the order does not inspire the confidence of this Court to be sustained in the attendant facts and circumstances.20. In the predominant factual setting, noted hereinabove, the approach of the respondents is markedly incompatible with the essence and import of the proviso to Section 10A(4) mandating against disapproval by the Central Government of any scheme for establishment of a college except after giving the person or the college concerned a reasonable opportunity of being heard. Reasonable opportunity of hearing which is synonymous to fair hearing, it is not longer res integra, is an important ingredient of audi alteram partem rule and embraces almost every facet of fair procedure. The rule of fair hearing requires that the affected party should be given an opportunity to meet the case against him effectively and the right to fair hearing takes within its fold a just decision supplemented by reasons and rationale. Reasonable opportunity of hearing or right to fair hearing casts a steadfast and sacrosanct obligation on the adjudicator to ensure fairness in procedure and action, so much so that any remiss or dereliction in connection therewith would be at the pain of invalidation of the decision eventually taken. Every executive authority empowered to take an administrative action having the potential of visiting any person with civil consequences must take care to ensure that justice is not only done but also manifestly appears to have been done.21. No endeavour whatsoever, in our comprehension, has been made by the respondents and that too in the face of an unequivocal direction by this Court, to fairly and consummately examine the materials on record in details before recording a final decision on the issue of confirmation or otherwise of the LOP granted to the petitioner college/institution as on 12.09.2016. True it is that the Regulations do provide for certain norms of infrastructure to be complied with by the applicant college/institution for being qualified for the LOP depending on the stages involved. This however does not obviate the inalienable necessity of affording a reasonable opportunity of hearing to the person or the college/institution concernedthe scheme for establishment of a college before disapproving the same. The manner in which the respondents, in the individual facts of the instant case, have approached the issue, leads to the inevitable conclusion that the materials on record do not support determinatively the allegation of deficiency in course of the process undertaken, as alleged. We are thus of the considered opinion that in view of the persistent defaults and shortcomings in the decision making process of the respondents, the petitioner college/institution ought not to be penalised. Having regard to the progression of events, the assertions made by the petitioners in the representations countering the deficiencies alleged, the observations/views expressed by the Oversight Committee in its communication dated 14.05.2017 and the DGHS in the hearing held on 17.01.2017 negate the findings with regard to the deficiencies as recorded by the assessors of the MCI in the inspections held.
|
THE SILPPI CONSTRUCTIONS CONTRACTORS Vs. UNION OF INDIA AND ANR. ETC. ETC | the grant of extension itself indicates that there were reasonable grounds for extension of the project and, therefore, this ground could not have been taken to reject the technical bid. 27. The second reason was that in another contract awarded to the sister company, the sister company had failed to perform its part of the contract leading to cancellation thereof. The stand of the petitioner was that the dispute between the parties was referred to arbitration and the arbitrator passed an award in favour of the sister company. Hence, there was a finding in favour of the petitioner. According to the respondents, the award was under challenge before the Court. 28. As far as the second objection is concerned, we agree with the petitioner that once an award has been passed in favour of the petitioner that issue could not be used against the petitioner. The Award being a binding adjudication would hold the field unless set aside. 29. However, as far as the first objection is concerned, merely because extension of time has been granted, it does not in any manner mean that the Department has come to the conclusion that the contractor is not at fault. Sometimes extension is granted because a lot of money has already been invested and cancellation of contract and appointment of new contractors would lead to unnecessary litigation and increase in costs. We may also point out that though we have held that the petitioner firm can challenge the correctness of the material used against the sister concern, we cannot lose sight of the fact that in the present case the sister company has not got its enlistment renewed. Some of the adverse remarks were conveyed to the sister company much prior to the issuance of notice inviting tenders in the present case. The sister company not only did not get its enlistment renewed but also did not care to even represent against the adverse remarks. It has been pointed out to us that as per the Manual on Contracts, 2007 if any adverse remarks are conveyed to the enlisted contractor the said contractor has a right to represent against the same. If no representation is made it is obvious that the contractor has accepted the adverse remarks. In this case the adverse remarks were accepted by the sister company. At the least, there was acquiescence if not acceptance. Therefore, this was a factor which could be taken into consideration by the respondents. 30. The eligibility criteria provided in the tender lays down that there should be no adverse remarks in the WLR of the competent engineering authority. Admittedly, there are adverse remarks in Work Load Return (WLR) of the sister company. It is obvious that the sister company having realised that it would not be awarded any contract neither got its enlistment renewed nor tried to submit the tender. The directors of the sister company tried to get over these insurmountable objections by applying for the tender in the name of the petitioner firm. Not only are the names similar but as pointed above, all the directors of the sister company are partners in the petitioner firm. Therefore, these adverse remarks passed against the sister company could not be ignored. 31. Another important aspect of the matter is that as per the eligibility criteria for MES enlisted contractors only contractors falling in SS Class were eligible to apply. Admittedly, the petitioner firm was not an enlisted contractor and was therefore required to meet the eligibility criteria for other contractors. Relevant portion of the notice inviting tender reads as follows :¬ TABLE A bare reading of the eligibility criteria would clearly show that as far as MES enlisted contractors are concerned, they should be enlisted in SS Category a(i) and secondly, they should not carry adverse remarks in WLR of competent engineer authority. As far as other contractors are concerned, they are required to meet the same criteria as SS MES contractors category a(i) and these contractors was specifically told that they could see enlistment criteria in the MES Manual Contracts. 32. The Manual also provides criteria for enlisting of contractors. We are only concerned with Class SS. The relevant portion reads as follows :¬ ……………….. ….…………….. ….……………... 1. For enlistment in class SS, the company incorporated under the Companies Act 1956 shall only be eligible. …….………… ………….……… ……….. ……….. Therefore, only companies incorporated under the Companies Act, 1956, are eligible to be enlisted as SS Class Contractors. It is urged on behalf of the petitioner that in various other places dealing with the documents required to be submitted for enlistment in MES, the terms proprietors, partners, directors have been used, meaning that even firms can be enlisted as SS Class contractors. We do not agree with this contention. The note quoted above clearly indicates that only incorporated companies can be enlisted as SS Class contractors. Furthermore, Clause 1.5 deals with the documents to be submitted by the contractor for enlistment in MES. The relevant portion reads as follows (a) ………………. ………………. …………………. (b) Affidavit for constitution of firm (only limited companies shall be enlisted in SS Class). ……………….… ……………… .. ………………. This again shows that only limited companies can be enlisted in SS Class. The Manual deals with enlistment of contractors in various classes. SS is the highest class and for that only incorporated companies can apply. Therefore, in our opinion the petitioner was not eligible to submit the tender 33. It was faintly contended that the requirement of being a company would be only for MES enlisted contractors and not for other contractors. The answer to this lies in the eligibility criteria for other contractors referred to above wherein it has been clearly mentioned that they should meet the enlistment criteria of Class SS MES Contractors. Even otherwise it would be a travesty of justice if enlisted contractors should only be limited companies and unlisted unknown contractors, could be a firm, individual etc. This is not the purpose of the criteria. | 0[ds]This Court in a catena of judgments has laid down the principles with regard to judicial review in contractual matters. It is settled law that the writ courts should not easily interfere in commercial activities just because public sector undertakings or government agencies are involved19. This Court being the guardian of fundamental rights is duty bound to interfere when there is arbitrariness, irrationality, mala fides and bias. However, this Court in all the aforesaid decisions has cautioned time and again that courts should exercise a lot of restraint while exercising their powers of judicial review in contractual or commercial matters. This Court is normally loathe to interfere in contractual matters unless a clear¬cut case of arbitrariness or mala fides or bias or irrationality is made out. One must remember that today many public sector undertakings compete with the private industry. The contracts entered into between private parties are not subject to scrutiny under writ jurisdiction. No doubt, the bodies which are State within the meaning of Article 12 of the Constitution are bound to act fairly and are amenable to the writ jurisdiction of superior courts but this discretionary power must be exercised with a great deal of restraint and caution. The Courts must realise their limitations and the havoc which needless interference in commercial matters can cause. In contracts involving technical issues the courts should be even more reluctant because most of us in judges robes do not have the necessary expertise to adjudicate upon technical issues beyond our domain. As laid down in the judgments cited above the courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. In fact, the courts must give fair play in the joints to the government and public sector undertakings in matters of contract. Courts must also not interfere where such interference will cause unnecessary loss to the public exchequer20. The essence of the law laid down in the judgments referred to above is the exercise of restraint and caution; the need for overwhelming public interest to justify judicial intervention in matters of contract involving the state instrumentalities; the courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable; the court does not sit like a court of appeal over the appropriate authority; the court must realise that the authority floating the tender is the best judge of its requirements and, therefore, the courts interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent arbitrariness, irrationality, bias, mala fides or perversity. With this approach in mind we shall deal with the present case21. It has been urged by the learned counsel for the petitioner that the Division Bench of the High Court erred in holding that the writ petition was not maintainable without making all the tenderers parties to the petition. At the outset, we may state that the Division bench of the High Court has held that in all cases challenging the decision of the tendering authority, all the eligible tenderers should be made parties. We do not think such a broad proposition could be laid down as an inflexible rule of law. Supposing the tender documents are not sold/delivered to a party wanting to submit a tender, in such a case the other tenderers would not be necessary parties. In the present case the petitioner was only challenging the rejection of its technical bid. At this stage the other tenderers were not necessary parties. The position may be otherwise if a tenderer challenges a bid awarded to another or challenges the rejection of his bid at a later stage. In our view the writ petition was maintainable even in the absence of other tenderers because till that stage there was no successful tenderer. Who are the necessary parties will depend upon the facts of each case22. It was next urged that the Division Bench erred in holding that the adverse remarks recorded against the sister company could not be gone into in the absence of any challenge by the sister company. We accept this contention. In our considered view if the tendering authority is using any adverse material of the sister company against the petitioner firm then the petitioner firm would be entitled to urge that the adverse remarks are not called for or that the adverse remarks are not justified or that the adverse remarks cannot be taken into consideration while considering the tender of the petitioner firm.24. It is not disputed before us that all the partners of the petitioner firm are the directors of the sister company and, therefore, there can be no manner of doubt that the petitioner firm and the sister company are related firms having a business relationship. Therefore, adverse remarks made against the sister concern can be used against the petitioner firm. To be fair to the learned counsel for the petitioner this point was not seriously contested before usWe must remember that we are dealing with purely administrative decisions. These are in the realm of contract. While rejecting the tender the person or authority inviting the tenders is not required to give reasons even if it be a state within the meaning of Article 12 of the Constitution. These decisions are neither judicial nor quasi¬judicial. If reasons are to be given at every stage, then the commercial activities of the State would come to a grinding halt. The State must be given sufficient leeway in this regard. The Respondent nos. 1 and 2 were entitled to give reasons in the counter to the writ petition which they have done26. Two reasons were given by the Department. One was that the sister company had been given a contract for some construction in Chennai zone and there was a huge delay in the execution of the project. According to the petitioners, extension had been granted to them from time to time by the authorities and the grant of extension itself indicates that there were reasonable grounds for extension of the project and, therefore, this ground could not have been taken to reject the technical bid27. The second reason was that in another contract awarded to the sister company, the sister company had failed to perform its part of the contract leading to cancellation thereof. The stand of the petitioner was that the dispute between the parties was referred to arbitration and the arbitrator passed an award in favour of the sister company. Hence, there was a finding in favour of the petitioner. According to the respondents, the award was under challenge before the Court28. As far as the second objection is concerned, we agree with the petitioner that once an award has been passed in favour of the petitioner that issue could not be used against the petitioner. The Award being a binding adjudication would hold the field unless set aside29. However, as far as the first objection is concerned, merely because extension of time has been granted, it does not in any manner mean that the Department has come to the conclusion that the contractor is not at fault. Sometimes extension is granted because a lot of money has already been invested and cancellation of contract and appointment of new contractors would lead to unnecessary litigation and increase in costs. We may also point out that though we have held that the petitioner firm can challenge the correctness of the material used against the sister concern, we cannot lose sight of the fact that in the present case the sister company has not got its enlistment renewed. Some of the adverse remarks were conveyed to the sister company much prior to the issuance of notice inviting tenders in the present case. The sister company not only did not get its enlistment renewed but also did not care to even represent against the adverse remarks. It has been pointed out to us that as per the Manual on Contracts, 2007 if any adverse remarks are conveyed to the enlisted contractor the said contractor has a right to represent against the same. If no representation is made it is obvious that the contractor has accepted the adverse remarks. In this case the adverse remarks were accepted by the sister company. At the least, there was acquiescence if not acceptance. Therefore, this was a factor which could be taken into consideration by the respondents30. The eligibility criteria provided in the tender lays down that there should be no adverse remarks in the WLR of the competent engineering authority. Admittedly, there are adverse remarks in Work Load Return (WLR) of the sister company. It is obvious that the sister company having realised that it would not be awarded any contract neither got its enlistment renewed nor tried to submit the tender. The directors of the sister company tried to get over these insurmountable objections by applying for the tender in the name of the petitioner firm. Not only are the names similar but as pointed above, all the directors of the sister company are partners in the petitioner firm. Therefore, these adverse remarks passed against the sister company could not be ignored31. Another important aspect of the matter is that as per the eligibility criteria for MES enlisted contractors only contractors falling in SS Class were eligible to apply. Admittedly, the petitioner firm was not an enlisted contractor and was therefore required to meet the eligibility criteria for other contractorsTherefore, only companies incorporated under the Companies Act, 1956, are eligible to be enlisted as SS Class Contractors. It is urged on behalf of the petitioner that in various other places dealing with the documents required to be submitted for enlistment in MES, the terms proprietors, partners, directors have been used, meaning that even firms can be enlisted as SS Class contractors. We do not agree with this contention. The note quoted above clearly indicates that only incorporated companies can be enlisted as SS Class contractorsFurthermore, Clause 1.5 deals with the documents to be submitted by the contractor for enlistment in MESThis again shows that only limited companies can be enlisted in SS Class. The Manual deals with enlistment of contractors in various classes. SS is the highest class and for that only incorporated companies can apply. Therefore, in our opinion the petitioner was not eligible to submit the tender33. It was faintly contended that the requirement of being a company would be only for MES enlisted contractors and not for other contractors. The answer to this lies in the eligibility criteria for other contractors referred to above wherein it has been clearly mentioned that they should meet the enlistment criteria of Class SS MES Contractors. Even otherwise it would be a travesty of justice if enlisted contractors should only be limited companies and unlisted unknown contractors, could be a firm, individual etc. This is not the purpose of the criteria. | 0 | 4,624 | 1,990 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
the grant of extension itself indicates that there were reasonable grounds for extension of the project and, therefore, this ground could not have been taken to reject the technical bid. 27. The second reason was that in another contract awarded to the sister company, the sister company had failed to perform its part of the contract leading to cancellation thereof. The stand of the petitioner was that the dispute between the parties was referred to arbitration and the arbitrator passed an award in favour of the sister company. Hence, there was a finding in favour of the petitioner. According to the respondents, the award was under challenge before the Court. 28. As far as the second objection is concerned, we agree with the petitioner that once an award has been passed in favour of the petitioner that issue could not be used against the petitioner. The Award being a binding adjudication would hold the field unless set aside. 29. However, as far as the first objection is concerned, merely because extension of time has been granted, it does not in any manner mean that the Department has come to the conclusion that the contractor is not at fault. Sometimes extension is granted because a lot of money has already been invested and cancellation of contract and appointment of new contractors would lead to unnecessary litigation and increase in costs. We may also point out that though we have held that the petitioner firm can challenge the correctness of the material used against the sister concern, we cannot lose sight of the fact that in the present case the sister company has not got its enlistment renewed. Some of the adverse remarks were conveyed to the sister company much prior to the issuance of notice inviting tenders in the present case. The sister company not only did not get its enlistment renewed but also did not care to even represent against the adverse remarks. It has been pointed out to us that as per the Manual on Contracts, 2007 if any adverse remarks are conveyed to the enlisted contractor the said contractor has a right to represent against the same. If no representation is made it is obvious that the contractor has accepted the adverse remarks. In this case the adverse remarks were accepted by the sister company. At the least, there was acquiescence if not acceptance. Therefore, this was a factor which could be taken into consideration by the respondents. 30. The eligibility criteria provided in the tender lays down that there should be no adverse remarks in the WLR of the competent engineering authority. Admittedly, there are adverse remarks in Work Load Return (WLR) of the sister company. It is obvious that the sister company having realised that it would not be awarded any contract neither got its enlistment renewed nor tried to submit the tender. The directors of the sister company tried to get over these insurmountable objections by applying for the tender in the name of the petitioner firm. Not only are the names similar but as pointed above, all the directors of the sister company are partners in the petitioner firm. Therefore, these adverse remarks passed against the sister company could not be ignored. 31. Another important aspect of the matter is that as per the eligibility criteria for MES enlisted contractors only contractors falling in SS Class were eligible to apply. Admittedly, the petitioner firm was not an enlisted contractor and was therefore required to meet the eligibility criteria for other contractors. Relevant portion of the notice inviting tender reads as follows :¬ TABLE A bare reading of the eligibility criteria would clearly show that as far as MES enlisted contractors are concerned, they should be enlisted in SS Category a(i) and secondly, they should not carry adverse remarks in WLR of competent engineer authority. As far as other contractors are concerned, they are required to meet the same criteria as SS MES contractors category a(i) and these contractors was specifically told that they could see enlistment criteria in the MES Manual Contracts. 32. The Manual also provides criteria for enlisting of contractors. We are only concerned with Class SS. The relevant portion reads as follows :¬ ……………….. ….…………….. ….……………... 1. For enlistment in class SS, the company incorporated under the Companies Act 1956 shall only be eligible. …….………… ………….……… ……….. ……….. Therefore, only companies incorporated under the Companies Act, 1956, are eligible to be enlisted as SS Class Contractors. It is urged on behalf of the petitioner that in various other places dealing with the documents required to be submitted for enlistment in MES, the terms proprietors, partners, directors have been used, meaning that even firms can be enlisted as SS Class contractors. We do not agree with this contention. The note quoted above clearly indicates that only incorporated companies can be enlisted as SS Class contractors. Furthermore, Clause 1.5 deals with the documents to be submitted by the contractor for enlistment in MES. The relevant portion reads as follows (a) ………………. ………………. …………………. (b) Affidavit for constitution of firm (only limited companies shall be enlisted in SS Class). ……………….… ……………… .. ………………. This again shows that only limited companies can be enlisted in SS Class. The Manual deals with enlistment of contractors in various classes. SS is the highest class and for that only incorporated companies can apply. Therefore, in our opinion the petitioner was not eligible to submit the tender 33. It was faintly contended that the requirement of being a company would be only for MES enlisted contractors and not for other contractors. The answer to this lies in the eligibility criteria for other contractors referred to above wherein it has been clearly mentioned that they should meet the enlistment criteria of Class SS MES Contractors. Even otherwise it would be a travesty of justice if enlisted contractors should only be limited companies and unlisted unknown contractors, could be a firm, individual etc. This is not the purpose of the criteria.
### Response:
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### Explanation:
the learned counsel for the petitioner this point was not seriously contested before usWe must remember that we are dealing with purely administrative decisions. These are in the realm of contract. While rejecting the tender the person or authority inviting the tenders is not required to give reasons even if it be a state within the meaning of Article 12 of the Constitution. These decisions are neither judicial nor quasi¬judicial. If reasons are to be given at every stage, then the commercial activities of the State would come to a grinding halt. The State must be given sufficient leeway in this regard. The Respondent nos. 1 and 2 were entitled to give reasons in the counter to the writ petition which they have done26. Two reasons were given by the Department. One was that the sister company had been given a contract for some construction in Chennai zone and there was a huge delay in the execution of the project. According to the petitioners, extension had been granted to them from time to time by the authorities and the grant of extension itself indicates that there were reasonable grounds for extension of the project and, therefore, this ground could not have been taken to reject the technical bid27. The second reason was that in another contract awarded to the sister company, the sister company had failed to perform its part of the contract leading to cancellation thereof. The stand of the petitioner was that the dispute between the parties was referred to arbitration and the arbitrator passed an award in favour of the sister company. Hence, there was a finding in favour of the petitioner. According to the respondents, the award was under challenge before the Court28. As far as the second objection is concerned, we agree with the petitioner that once an award has been passed in favour of the petitioner that issue could not be used against the petitioner. The Award being a binding adjudication would hold the field unless set aside29. However, as far as the first objection is concerned, merely because extension of time has been granted, it does not in any manner mean that the Department has come to the conclusion that the contractor is not at fault. Sometimes extension is granted because a lot of money has already been invested and cancellation of contract and appointment of new contractors would lead to unnecessary litigation and increase in costs. We may also point out that though we have held that the petitioner firm can challenge the correctness of the material used against the sister concern, we cannot lose sight of the fact that in the present case the sister company has not got its enlistment renewed. Some of the adverse remarks were conveyed to the sister company much prior to the issuance of notice inviting tenders in the present case. The sister company not only did not get its enlistment renewed but also did not care to even represent against the adverse remarks. It has been pointed out to us that as per the Manual on Contracts, 2007 if any adverse remarks are conveyed to the enlisted contractor the said contractor has a right to represent against the same. If no representation is made it is obvious that the contractor has accepted the adverse remarks. In this case the adverse remarks were accepted by the sister company. At the least, there was acquiescence if not acceptance. Therefore, this was a factor which could be taken into consideration by the respondents30. The eligibility criteria provided in the tender lays down that there should be no adverse remarks in the WLR of the competent engineering authority. Admittedly, there are adverse remarks in Work Load Return (WLR) of the sister company. It is obvious that the sister company having realised that it would not be awarded any contract neither got its enlistment renewed nor tried to submit the tender. The directors of the sister company tried to get over these insurmountable objections by applying for the tender in the name of the petitioner firm. Not only are the names similar but as pointed above, all the directors of the sister company are partners in the petitioner firm. Therefore, these adverse remarks passed against the sister company could not be ignored31. Another important aspect of the matter is that as per the eligibility criteria for MES enlisted contractors only contractors falling in SS Class were eligible to apply. Admittedly, the petitioner firm was not an enlisted contractor and was therefore required to meet the eligibility criteria for other contractorsTherefore, only companies incorporated under the Companies Act, 1956, are eligible to be enlisted as SS Class Contractors. It is urged on behalf of the petitioner that in various other places dealing with the documents required to be submitted for enlistment in MES, the terms proprietors, partners, directors have been used, meaning that even firms can be enlisted as SS Class contractors. We do not agree with this contention. The note quoted above clearly indicates that only incorporated companies can be enlisted as SS Class contractorsFurthermore, Clause 1.5 deals with the documents to be submitted by the contractor for enlistment in MESThis again shows that only limited companies can be enlisted in SS Class. The Manual deals with enlistment of contractors in various classes. SS is the highest class and for that only incorporated companies can apply. Therefore, in our opinion the petitioner was not eligible to submit the tender33. It was faintly contended that the requirement of being a company would be only for MES enlisted contractors and not for other contractors. The answer to this lies in the eligibility criteria for other contractors referred to above wherein it has been clearly mentioned that they should meet the enlistment criteria of Class SS MES Contractors. Even otherwise it would be a travesty of justice if enlisted contractors should only be limited companies and unlisted unknown contractors, could be a firm, individual etc. This is not the purpose of the criteria.
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SWARAJ INFRASTRUCTURE PVT. LTD Vs. KOTAK MAHINDRA BANK LTD | followed in the judgments of the Madras, Calcutta and Karnataka High Courts and as reiterated in the judgment of the Company Court in Canfin Homes Ltd., it is not possible to accept the submission which was urged on behalf of the appellant. The law does not impose an unreasonable condition of requiring a secured creditor to forsake his security before he asserts a right to urge that a company which is unable to pay its debts should be wound up. The respondent has stated before the learned Company Judge, when the petition for winding up came up for hearing that it was not possible for the respondent to recover her dues by the sale of the land in respect of which a security has been created in favour of the respondent. The claim of the respondent is still to be proved in the course of the winding up proceedings. A secured creditor who has a mortgage, charge or lien on the property of the company as security for her debt may either: (a) enforce the security and prove in the winding up for the balance of the debt after deducting the amount realised; or (b) surrender the security to the Liquidator and prove for the whole of the debt as an unsecured creditor; or (c) estimate the value of the property subject to her security, and prove for the balance of the debt after deducting the estimated value; or (d) rely on the security and not prove in the winding up proceedings. [Penningtons Company Law (Fourth edition, page 762)]. A secured creditor has the option of relinquishing his security and/or proving the entirety of his debt in the course of winding up. If the secured creditor does so in the course of winding up proceedings, the security will enure for the benefit of the body of creditors. On the other hand, it is open to a secured creditor to prove in the course of winding up proceedings to the extent of debt which has not been realised outside the proceedings for winding up by either accounting for the amount that has been so realised or by estimating the value of the property subject to security so as to enable him to prove in respect of the balance of the debt. On either view of the matter, that stage is still to arrive.”18. In fact, even in Jitendra Nath Singh v. Official Liquidator, (2013) 1 SCC 462 , this Court, after referring to Section 47 of the Provincial Insolvency Act, 1920 and Section 529 of the Companies Act, 1956, held as follows:“16.1. A secured creditor has only a charge over a particular property or asset of the company. The secured creditor has the option to either realise his security or relinquish his security. If the secured creditor relinquishes his security, like any other unsecured creditor, he is entitled to prove the debt due to him and receive dividends out of the assets of the company in the winding-up proceedings. If the secured creditor opts to realise his security, he is entitled to realise his security in a proceeding other than the winding-up proceeding but has to pay to the liquidator the costs of preservation of the security till he realises the security.”(emphasis supplied)xxx xxx xxx17. In support of our aforesaid conclusions, we may now cite some authorities. In Allahabad Bank v. Canara Bank [(2000) 4 SCC 406] , a two-Judge Bench of this Court speaking through M. Jagannadha Rao, J. discussed these rights of the secured creditors in paras 62, 63, 64 and 65 of the judgment as reported in SCC, which are extracted hereinbelow: (SCC pp. 435-36)“62. Secured creditors fall under two categories. Those who desire to go before the Company Court and those who like to stand outside the winding up.63. The first category of secured creditors mentioned above are those who go before the Company Court for dividend by relinquishing their security in accordance with the insolvency rules mentioned in Section 529. The insolvency rules are those contained in Sections 45 to 50 of the Provincial Insolvency Act. Section 47(2) of that Act states that a secured creditor who wishes to come before the Official Liquidator has to prove his debt and he can prove his debt only if he relinquishes his security for the benefit of the general body of creditors. In that event, he will rank with the unsecured creditors and has to take his dividend as provided in Section 529(2). Till today, Canara Bank has not made it clear whether it wants to come under this category.xxx xxx xxx”19. We now come to the argument based on Section 434(1)(b) of the Companies Act, 1956. It is obvious that Section 434(1)(b) is attracted only if execution or other process is issued in respect of an order of a Tribunal in favour of a creditor of the company is returned unsatisfied in whole or in part. This is only one of three instances in which a company shall be deemed to be unable to pay its debts. If the fact situation fits sub-clause (b) of Section 434(1), then a company may be said to be deemed to be unable to pay its debts. However, this does not mean that each one of the sub-clauses of Section 434(1) are mutually exclusive in the sense that once Section 434(1)(b) applies, Section 434(1)(a) ceases to be applicable. Also, on the facts of this case, we may state that the company petition was filed only on 03.07.2015, pursuant to a notice under Section 433 of the Companies Act, 1956 dated 15.04.2015. This petition was filed under Section 433(e) read with Section 434(1)(a) of the Companies Act, 1956. At the stage at which the petition was filed, it could not possibly have been filed under Section 434(1)(b) of the Companies Act, 1956, as execution or other process in the form of a recovery certificate had not been issued by the Recovery Officer till 12.08.2015, i.e., till after the company petition was filed. | 0[ds]13. It is true that this Court has stated that a winding up petition is a form of equitable execution of a debt, but this is qualified by stating that a winding up order is not a normal alternative to the ordinary procedure for realization of debts due to a creditor. We are of the view that both the judgments contained in Amalgamated Commercial Traders (supra) as well as in Harinagar Sugar Mills (supra), recognize the fact that a winding up proceeding is not a proceeding that can be referred to as a proceeding for realization of debts and would, therefore, not be covered by the language of Section 17 read with Section 18 of the Recovery of Debts Act. When it comes to a winding up proceeding under the Companies Act, 1956, since such a proceeding is notdue to banks, the bar contained in Section 18 read with Section 34 of the Recovery of Debts Act would not apply to winding up proceedings under the Companies Act, 1956.14. In point of fact, a Division Bench of the Bombay High Court in Viral Filaments Ltd. v. Indusind Bank Ltd., (2001) 3 Mah LJ 552 reached this very conclusion after closely examining the judgment in Allahabad Bank v. Canara Bank (supra) of this Court. We approve of the reasoning contained in the aforesaid Bombay High Courta matter of fact, sub-paragraphs (i) and (iv) of paragraph 18 would show that proceedings before the DRT, and winding up proceedings under the Companies Act, 1956, can carry on in parallel streams. That is why paragraph 18(i) states that a Debts Recovery Tribunal, acting under the Recovery of Debts Act, would be entitled to order sale, and sell the properties of the debtor, even of a company in liquidation, but only after giving notice to the Official Liquidator, or to the Liquidator appointed by the Company Court, and after hearing him.The second important point raised by learned counsel for the appellant is that a conjoint reading of the Companies Act, 1956 and the Provincial Insolvency Act, 1920, would make it clear that the secured creditor must, at the time of filing the petition for winding up, state that it has given up his security, or else, such winding up petition would not be maintainable.We now come to the argument based on Section 434(1)(b) of the Companies Act, 1956. It is obvious that Section 434(1)(b) is attracted only if execution or other process is issued in respect of an order of a Tribunal in favour of a creditor of the company is returned unsatisfied in whole or in part. This is only one of three instances in which a company shall be deemed to be unable to pay its debts. If the fact situation fits sub-clause (b) of Section 434(1), then a company may be said to be deemed to be unable to pay its debts. However, this does not mean that each one of the sub-clauses of Section 434(1) are mutually exclusive in the sense that once Section 434(1)(b) applies, Section 434(1)(a) ceases to be applicable. Also, on the facts of this case, we may state that the company petition was filed only on 03.07.2015, pursuant to a notice under Section 433 of the Companies Act, 1956 dated 15.04.2015. This petition was filed under Section 433(e) read with Section 434(1)(a) of the Companies Act, 1956. At the stage at which the petition was filed, it could not possibly have been filed under Section 434(1)(b) of the Companies Act, 1956, as execution or other process in the form of a recovery certificate had not been issued by the Recovery Officer till 12.08.2015, i.e., till after the company petition was filed. | 0 | 8,412 | 736 | ### 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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followed in the judgments of the Madras, Calcutta and Karnataka High Courts and as reiterated in the judgment of the Company Court in Canfin Homes Ltd., it is not possible to accept the submission which was urged on behalf of the appellant. The law does not impose an unreasonable condition of requiring a secured creditor to forsake his security before he asserts a right to urge that a company which is unable to pay its debts should be wound up. The respondent has stated before the learned Company Judge, when the petition for winding up came up for hearing that it was not possible for the respondent to recover her dues by the sale of the land in respect of which a security has been created in favour of the respondent. The claim of the respondent is still to be proved in the course of the winding up proceedings. A secured creditor who has a mortgage, charge or lien on the property of the company as security for her debt may either: (a) enforce the security and prove in the winding up for the balance of the debt after deducting the amount realised; or (b) surrender the security to the Liquidator and prove for the whole of the debt as an unsecured creditor; or (c) estimate the value of the property subject to her security, and prove for the balance of the debt after deducting the estimated value; or (d) rely on the security and not prove in the winding up proceedings. [Penningtons Company Law (Fourth edition, page 762)]. A secured creditor has the option of relinquishing his security and/or proving the entirety of his debt in the course of winding up. If the secured creditor does so in the course of winding up proceedings, the security will enure for the benefit of the body of creditors. On the other hand, it is open to a secured creditor to prove in the course of winding up proceedings to the extent of debt which has not been realised outside the proceedings for winding up by either accounting for the amount that has been so realised or by estimating the value of the property subject to security so as to enable him to prove in respect of the balance of the debt. On either view of the matter, that stage is still to arrive.”18. In fact, even in Jitendra Nath Singh v. Official Liquidator, (2013) 1 SCC 462 , this Court, after referring to Section 47 of the Provincial Insolvency Act, 1920 and Section 529 of the Companies Act, 1956, held as follows:“16.1. A secured creditor has only a charge over a particular property or asset of the company. The secured creditor has the option to either realise his security or relinquish his security. If the secured creditor relinquishes his security, like any other unsecured creditor, he is entitled to prove the debt due to him and receive dividends out of the assets of the company in the winding-up proceedings. If the secured creditor opts to realise his security, he is entitled to realise his security in a proceeding other than the winding-up proceeding but has to pay to the liquidator the costs of preservation of the security till he realises the security.”(emphasis supplied)xxx xxx xxx17. In support of our aforesaid conclusions, we may now cite some authorities. In Allahabad Bank v. Canara Bank [(2000) 4 SCC 406] , a two-Judge Bench of this Court speaking through M. Jagannadha Rao, J. discussed these rights of the secured creditors in paras 62, 63, 64 and 65 of the judgment as reported in SCC, which are extracted hereinbelow: (SCC pp. 435-36)“62. Secured creditors fall under two categories. Those who desire to go before the Company Court and those who like to stand outside the winding up.63. The first category of secured creditors mentioned above are those who go before the Company Court for dividend by relinquishing their security in accordance with the insolvency rules mentioned in Section 529. The insolvency rules are those contained in Sections 45 to 50 of the Provincial Insolvency Act. Section 47(2) of that Act states that a secured creditor who wishes to come before the Official Liquidator has to prove his debt and he can prove his debt only if he relinquishes his security for the benefit of the general body of creditors. In that event, he will rank with the unsecured creditors and has to take his dividend as provided in Section 529(2). Till today, Canara Bank has not made it clear whether it wants to come under this category.xxx xxx xxx”19. We now come to the argument based on Section 434(1)(b) of the Companies Act, 1956. It is obvious that Section 434(1)(b) is attracted only if execution or other process is issued in respect of an order of a Tribunal in favour of a creditor of the company is returned unsatisfied in whole or in part. This is only one of three instances in which a company shall be deemed to be unable to pay its debts. If the fact situation fits sub-clause (b) of Section 434(1), then a company may be said to be deemed to be unable to pay its debts. However, this does not mean that each one of the sub-clauses of Section 434(1) are mutually exclusive in the sense that once Section 434(1)(b) applies, Section 434(1)(a) ceases to be applicable. Also, on the facts of this case, we may state that the company petition was filed only on 03.07.2015, pursuant to a notice under Section 433 of the Companies Act, 1956 dated 15.04.2015. This petition was filed under Section 433(e) read with Section 434(1)(a) of the Companies Act, 1956. At the stage at which the petition was filed, it could not possibly have been filed under Section 434(1)(b) of the Companies Act, 1956, as execution or other process in the form of a recovery certificate had not been issued by the Recovery Officer till 12.08.2015, i.e., till after the company petition was filed.
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13. It is true that this Court has stated that a winding up petition is a form of equitable execution of a debt, but this is qualified by stating that a winding up order is not a normal alternative to the ordinary procedure for realization of debts due to a creditor. We are of the view that both the judgments contained in Amalgamated Commercial Traders (supra) as well as in Harinagar Sugar Mills (supra), recognize the fact that a winding up proceeding is not a proceeding that can be referred to as a proceeding for realization of debts and would, therefore, not be covered by the language of Section 17 read with Section 18 of the Recovery of Debts Act. When it comes to a winding up proceeding under the Companies Act, 1956, since such a proceeding is notdue to banks, the bar contained in Section 18 read with Section 34 of the Recovery of Debts Act would not apply to winding up proceedings under the Companies Act, 1956.14. In point of fact, a Division Bench of the Bombay High Court in Viral Filaments Ltd. v. Indusind Bank Ltd., (2001) 3 Mah LJ 552 reached this very conclusion after closely examining the judgment in Allahabad Bank v. Canara Bank (supra) of this Court. We approve of the reasoning contained in the aforesaid Bombay High Courta matter of fact, sub-paragraphs (i) and (iv) of paragraph 18 would show that proceedings before the DRT, and winding up proceedings under the Companies Act, 1956, can carry on in parallel streams. That is why paragraph 18(i) states that a Debts Recovery Tribunal, acting under the Recovery of Debts Act, would be entitled to order sale, and sell the properties of the debtor, even of a company in liquidation, but only after giving notice to the Official Liquidator, or to the Liquidator appointed by the Company Court, and after hearing him.The second important point raised by learned counsel for the appellant is that a conjoint reading of the Companies Act, 1956 and the Provincial Insolvency Act, 1920, would make it clear that the secured creditor must, at the time of filing the petition for winding up, state that it has given up his security, or else, such winding up petition would not be maintainable.We now come to the argument based on Section 434(1)(b) of the Companies Act, 1956. It is obvious that Section 434(1)(b) is attracted only if execution or other process is issued in respect of an order of a Tribunal in favour of a creditor of the company is returned unsatisfied in whole or in part. This is only one of three instances in which a company shall be deemed to be unable to pay its debts. If the fact situation fits sub-clause (b) of Section 434(1), then a company may be said to be deemed to be unable to pay its debts. However, this does not mean that each one of the sub-clauses of Section 434(1) are mutually exclusive in the sense that once Section 434(1)(b) applies, Section 434(1)(a) ceases to be applicable. Also, on the facts of this case, we may state that the company petition was filed only on 03.07.2015, pursuant to a notice under Section 433 of the Companies Act, 1956 dated 15.04.2015. This petition was filed under Section 433(e) read with Section 434(1)(a) of the Companies Act, 1956. At the stage at which the petition was filed, it could not possibly have been filed under Section 434(1)(b) of the Companies Act, 1956, as execution or other process in the form of a recovery certificate had not been issued by the Recovery Officer till 12.08.2015, i.e., till after the company petition was filed.
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UNION OF INDIA & ANOTHER ETC. ETC Vs. M/S V.V.F. LIMITED & ANOTHER ETC.ETC | of excise duty which are manufactured on paper. Therefore, it can be said that the object of the subsequent notifications/industrial policies was the prevention of tax evasion. It can be said that by the subsequent notifications/industrial policies, they only rationalizes the quantum of exemption and proposing rate of refund on the total duty payable on the genuine manufactured goods. At the time when the earlier notifications were issued, the Government did not visualize that such a modus operandi would be followed by the unscrupulous manufacturers who indulge in different types of tax evasion tactics. It is only by experience and on analysis of cases detected the Excise Department the Government came to know about such tax evasion tactics being followed by the unscrupulous manufacturers which prompted the Government to come out with the subsequent notifications which, as observed hereinabove, was to clarify the refund mechanism so as to provide that excise duty refund would be allowed only to the extent of duty payable on actual value addition made by the manufacturer undertaking manufacturing activities in the concerned areas. The entire genesis of the policy manifesting the intention of the Government to grant excise duty exemption/refund of excise duty paid was to provide such exemption only to actual value addition made in the respective areas. As it was found that there was misuse of excise duty exemption it was considered expedient in the public interest and with a laudable object of having genuine industrialization in backward areas or the concerned areas, the subsequent notifications/industrial policies have been issued by the Government. Therefore, the subsequent notifications/industrial policies impugned before the respective High Courts were in the public interest and even issued after thorough analysis of the cases of tax evasion and even after receipt of the reports. The earlier notifications were issued under Section 5A of the Central Excise Act and even the subsequent notifications which were issued in public interest and in the interest of Revenue were also issued under Section 5A of the Central Excise Act, which can not be said to be bad in law, arbitrary and/or hit by the doctrine of promissory estoppel. 14.2 The purpose of the original scheme was not to give benefit of refund of the excise duty paid on the goods manufactured only on paper or in fact not manufactured at all. As the purpose of the original notifications/incentive schemes was being frustrated by such unscrupulous manufacturers who had indulged in different types of tax evasion tactics, the subsequent notifications/industrial policies have been issued allowing refund of excise duty only to the extent of duty payable on the actual value addition made by the manufacturers undertaking manufacturing activities in these areas which is absolutely in consonance with the incentive scheme and the intention of the Government to provide the excise duty exemption only in respect of genuine manufacturing activities carried out in these areas. 14.3 As observed hereinabove, the subsequent notifications/industrial policies do not take away any vested right conferred under the earlier notifications/industrial policies. Under the subsequent notifications/industrial policies, the persons who establish the new undertakings shall be continue to get the refund of the excise duty. However, it is clarified by the subsequent notifications that the refund of the excise duty shall be on the actual excise duty paid on actual value addition made by the manufacturers undertaking manufacturing activities. Therefore, it cannot be said that subsequent notifications/industrial policies are hit by the doctrine of promissory estoppel. The respective High Courts have committed grave error in holding that the subsequent notifications/industrial policies impugned before the respective High Courts were hit by the doctrine of promissory estoppel. As observed and held hereinabove, the subsequent notifications/industrial policies which were impugned before the respective High Court can be said to be clarificatory in nature and the same have been issued in the larger public interest and in the interest of the Revenue, the same can be made applicable retrospectively, otherwise the object and purpose and the intention of the Government to provide excise duty exemption only in respect of genuine manufacturing activities carried out in the concerned areas shall be frustrated. As the subsequent notifications/industrial policies are to explain the earlier notifications/industrial policies, it would be without object unless construed retrospectively. The subsequent notifications impugned before the respective High Courts as such provide the manner and method of calculating the amount of refund of excise duty paid on actual manufacturing of goods. The notifications impugned before the respective High Courts can be said to be providing mode on determination of the refund of excise duty to achieve the object and purpose of providing incentive/exemption. As observed hereinabove, they do not take away any vested right conferred under the earlier notifications. The subsequent notifications therefore are clarificatory in nature, since it declares the refund of excise duty paid genuinely and paid on actual manufacturing of goods and not on the duty paid on the goods manufactured only on paper and without undertaking any manufacturing activities of such goods. 15. In view of the above and for the reasons stated above and once it is held that the subsequent notifications/industrial policies which were impugned before the respective High Courts are clarificatory in nature and are issued in public interest and in the interest of the Revenue and they seek to achieve the original object and purpose of giving incentive/exemption while inviting the persons to make investment on establishing the new undertakings and they do not take away any vested rights conferred under the earlier notifications/industrial policies and therefore cannot be said to be hit by the doctrine of promissory estoppel, the same is to be applied retrospectively and they cannot be said to be irrational and/or arbitrary. 16. Under the circumstances, the respective High Courts have committed a grave error in quashing and setting aside the subsequent notifications/industrial policies impugned before the respective High Courts on the ground that they are hit by the doctrine of promissory estoppel and that they are retrospective and not retro- active. | 1[ds]12. Now, so far as the decisions relied upon by the learned counsel appearing on behalf of the respective original writ petitioners-respondents herein are concerned, once it is held that the subsequent notifications/industrial policies impugned before the respective High Court are clarificatory in nature and it does not take away any vested rights conferred under the earlier notifications/industrial policies, none of the decisions relied upon shall be applicable to the facts of the case on hand14. Applying the law laid down by this Court in the aforesaid decisions to the subsequent notifications/industrial policies which were the subject-matter before the High Court and for the reasons stated hereinbelow, we are of the opinion that the respective notifications/industrial policies impugned before the High Courts can be said to be clarificatory in nature and it can be defined as an Act to remove doubts. It cannot be said that by the subsequent notifications/industrial policies the benefits which were accrued/granted under the earlier notifications were sought to be taken away. It also cannot be said that by the subsequent notifications/industrial policies, the rights which have been accrued under the earlier notifications had been taken away14.1 The main objective of the earlier respective notifications/industrial policies was to encourage the entrepreneurs to put new industries in the area so as to generate employment and for that an incentive was offered to get back by way of refund the excise duty paid either in cash or PLA, namely, the amount of duty paid by the manufacturer of goods other than the amount of duty paid by utilization paid by CENV AT credit. The same was subject to conditions that it will be applied to the new industrial units, i.e. the units which are set up on and after the publication of the said notification in the Official Gazette, i.e. not later than 31.07.2003. The notification was modified from time to time. However, during the operation of the earlier notifications, it was noticed that the provision of granting refund of cash paid portion of duty and eligibility of credit the entire amount of duty to the buyers of such excisable goods had prompted certain unscrupulous manufacturers to indulge in different types of tax evasion tactics. It was revealed on analysis of cases booked by the Excise Department and even the representations received from the Industry Association about misuse of exemptions granted by the Government, which was meant to be available only for genuine manufacturersTherefore, the Government came out with the impugned notifications/industrial policies that the refund of excise duty shall be provided on actual and calculated on the basis of actual value addition. On a fair reading of the earlier notifications/industrial policies, it is clear that the object of granting the refund was to refund the excise duty paid on genuine manufacturing activities. The intention would not have been that irrespective of actual manufacturing/manufacturing activities and even if the goods are not actually manufactured, but are manufactured on paper, there shall be refund of excise duty which are manufactured on paper. Therefore, it can be said that the object of the subsequent notifications/industrial policies was the prevention of tax evasion. It can be said that by the subsequent notifications/industrial policies, they only rationalizes the quantum of exemption and proposing rate of refund on the total duty payable on the genuine manufactured goods. At the time when the earlier notifications were issued, the Government did not visualize that such a modus operandi would be followed by the unscrupulous manufacturers who indulge in different types of tax evasion tactics. It is only by experience and on analysis of cases detected the Excise Department the Government came to know about such tax evasion tactics being followed by the unscrupulous manufacturers which prompted the Government to come out with the subsequent notifications which, as observed hereinabove, was to clarify the refund mechanism so as to provide that excise duty refund would be allowed only to the extent of duty payable on actual value addition made by the manufacturer undertaking manufacturing activities in the concerned areas. The entire genesis of the policy manifesting the intention of the Government to grant excise duty exemption/refund of excise duty paid was to provide such exemption only to actual value addition made in the respective areas. As it was found that there was misuse of excise duty exemption it was considered expedient in the public interest and with a laudable object of having genuine industrialization in backward areas or the concerned areas, the subsequent notifications/industrial policies have been issued by the Government. Therefore, the subsequent notifications/industrial policies impugned before the respective High Courts were in the public interest and even issued after thorough analysis of the cases of tax evasion and even after receipt of the reports. The earlier notifications were issued under Section 5A of the Central Excise Act and even the subsequent notifications which were issued in public interest and in the interest of Revenue were also issued under Section 5A of the Central Excise Act, which can not be said to be bad in law, arbitrary and/or hit by the doctrine of promissory estoppel14.2 The purpose of the original scheme was not to give benefit of refund of the excise duty paid on the goods manufactured only on paper or in fact not manufactured at all. As the purpose of the original notifications/incentive schemes was being frustrated by such unscrupulous manufacturers who had indulged in different types of tax evasion tactics, the subsequent notifications/industrial policies have been issued allowing refund of excise duty only to the extent of duty payable on the actual value addition made by the manufacturers undertaking manufacturing activities in these areas which is absolutely in consonance with the incentive scheme and the intention of the Government to provide the excise duty exemption only in respect of genuine manufacturing activities carried out in these areas14.3 As observed hereinabove, the subsequent notifications/industrial policies do not take away any vested right conferred under the earlier notifications/industrial policies. Under the subsequent notifications/industrial policies, the persons who establish the new undertakings shall be continue to get the refund of the excise duty. However, it is clarified by the subsequent notifications that the refund of the excise duty shall be on the actual excise duty paid on actual value addition made by the manufacturers undertaking manufacturing activities. Therefore, it cannot be said that subsequent notifications/industrial policies are hit by the doctrine of promissory estoppel. The respective High Courts have committed grave error in holding that the subsequent notifications/industrial policies impugned before the respective High Courts were hit by the doctrine of promissory estoppel. As observed and held hereinabove, the subsequent notifications/industrial policies which were impugned before the respective High Court can be said to be clarificatory in nature and the same have been issued in the larger public interest and in the interest of the Revenue, the same can be made applicable retrospectively, otherwise the object and purpose and the intention of the Government to provide excise duty exemption only in respect of genuine manufacturing activities carried out in the concerned areas shall be frustrated. As the subsequent notifications/industrial policies are to explain the earlier notifications/industrial policies, it would be without object unless construed retrospectively. The subsequent notifications impugned before the respective High Courts as such provide the manner and method of calculating the amount of refund of excise duty paid on actual manufacturing of goods. The notifications impugned before the respective High Courts can be said to be providing mode on determination of the refund of excise duty to achieve the object and purpose of providing incentive/exemption. As observed hereinabove, they do not take away any vested right conferred under the earlier notifications. The subsequent notifications therefore are clarificatory in nature, since it declares the refund of excise duty paid genuinely and paid on actual manufacturing of goods and not on the duty paid on the goods manufactured only on paper and without undertaking any manufacturing activities of such goods15. In view of the above and for the reasons stated above and once it is held that the subsequent notifications/industrial policies which were impugned before the respective High Courts are clarificatory in nature and are issued in public interest and in the interest of the Revenue and they seek to achieve the original object and purpose of giving incentive/exemption while inviting the persons to make investment on establishing the new undertakings and they do not take away any vested rights conferred under the earlier notifications/industrial policies and therefore cannot be said to be hit by the doctrine of promissory estoppel, the same is to be applied retrospectively and they cannot be said to be irrational and/or arbitrary16. Under the circumstances, the respective High Courts have committed a grave error in quashing and setting aside the subsequent notifications/industrial policies impugned before the respective High Courts on the ground that they are hit by the doctrine of promissory estoppel and that they are retrospective and not retro- active. | 1 | 11,757 | 1,572 | ### 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:
of excise duty which are manufactured on paper. Therefore, it can be said that the object of the subsequent notifications/industrial policies was the prevention of tax evasion. It can be said that by the subsequent notifications/industrial policies, they only rationalizes the quantum of exemption and proposing rate of refund on the total duty payable on the genuine manufactured goods. At the time when the earlier notifications were issued, the Government did not visualize that such a modus operandi would be followed by the unscrupulous manufacturers who indulge in different types of tax evasion tactics. It is only by experience and on analysis of cases detected the Excise Department the Government came to know about such tax evasion tactics being followed by the unscrupulous manufacturers which prompted the Government to come out with the subsequent notifications which, as observed hereinabove, was to clarify the refund mechanism so as to provide that excise duty refund would be allowed only to the extent of duty payable on actual value addition made by the manufacturer undertaking manufacturing activities in the concerned areas. The entire genesis of the policy manifesting the intention of the Government to grant excise duty exemption/refund of excise duty paid was to provide such exemption only to actual value addition made in the respective areas. As it was found that there was misuse of excise duty exemption it was considered expedient in the public interest and with a laudable object of having genuine industrialization in backward areas or the concerned areas, the subsequent notifications/industrial policies have been issued by the Government. Therefore, the subsequent notifications/industrial policies impugned before the respective High Courts were in the public interest and even issued after thorough analysis of the cases of tax evasion and even after receipt of the reports. The earlier notifications were issued under Section 5A of the Central Excise Act and even the subsequent notifications which were issued in public interest and in the interest of Revenue were also issued under Section 5A of the Central Excise Act, which can not be said to be bad in law, arbitrary and/or hit by the doctrine of promissory estoppel. 14.2 The purpose of the original scheme was not to give benefit of refund of the excise duty paid on the goods manufactured only on paper or in fact not manufactured at all. As the purpose of the original notifications/incentive schemes was being frustrated by such unscrupulous manufacturers who had indulged in different types of tax evasion tactics, the subsequent notifications/industrial policies have been issued allowing refund of excise duty only to the extent of duty payable on the actual value addition made by the manufacturers undertaking manufacturing activities in these areas which is absolutely in consonance with the incentive scheme and the intention of the Government to provide the excise duty exemption only in respect of genuine manufacturing activities carried out in these areas. 14.3 As observed hereinabove, the subsequent notifications/industrial policies do not take away any vested right conferred under the earlier notifications/industrial policies. Under the subsequent notifications/industrial policies, the persons who establish the new undertakings shall be continue to get the refund of the excise duty. However, it is clarified by the subsequent notifications that the refund of the excise duty shall be on the actual excise duty paid on actual value addition made by the manufacturers undertaking manufacturing activities. Therefore, it cannot be said that subsequent notifications/industrial policies are hit by the doctrine of promissory estoppel. The respective High Courts have committed grave error in holding that the subsequent notifications/industrial policies impugned before the respective High Courts were hit by the doctrine of promissory estoppel. As observed and held hereinabove, the subsequent notifications/industrial policies which were impugned before the respective High Court can be said to be clarificatory in nature and the same have been issued in the larger public interest and in the interest of the Revenue, the same can be made applicable retrospectively, otherwise the object and purpose and the intention of the Government to provide excise duty exemption only in respect of genuine manufacturing activities carried out in the concerned areas shall be frustrated. As the subsequent notifications/industrial policies are to explain the earlier notifications/industrial policies, it would be without object unless construed retrospectively. The subsequent notifications impugned before the respective High Courts as such provide the manner and method of calculating the amount of refund of excise duty paid on actual manufacturing of goods. The notifications impugned before the respective High Courts can be said to be providing mode on determination of the refund of excise duty to achieve the object and purpose of providing incentive/exemption. As observed hereinabove, they do not take away any vested right conferred under the earlier notifications. The subsequent notifications therefore are clarificatory in nature, since it declares the refund of excise duty paid genuinely and paid on actual manufacturing of goods and not on the duty paid on the goods manufactured only on paper and without undertaking any manufacturing activities of such goods. 15. In view of the above and for the reasons stated above and once it is held that the subsequent notifications/industrial policies which were impugned before the respective High Courts are clarificatory in nature and are issued in public interest and in the interest of the Revenue and they seek to achieve the original object and purpose of giving incentive/exemption while inviting the persons to make investment on establishing the new undertakings and they do not take away any vested rights conferred under the earlier notifications/industrial policies and therefore cannot be said to be hit by the doctrine of promissory estoppel, the same is to be applied retrospectively and they cannot be said to be irrational and/or arbitrary. 16. Under the circumstances, the respective High Courts have committed a grave error in quashing and setting aside the subsequent notifications/industrial policies impugned before the respective High Courts on the ground that they are hit by the doctrine of promissory estoppel and that they are retrospective and not retro- active.
### Response:
1
### Explanation:
there shall be refund of excise duty which are manufactured on paper. Therefore, it can be said that the object of the subsequent notifications/industrial policies was the prevention of tax evasion. It can be said that by the subsequent notifications/industrial policies, they only rationalizes the quantum of exemption and proposing rate of refund on the total duty payable on the genuine manufactured goods. At the time when the earlier notifications were issued, the Government did not visualize that such a modus operandi would be followed by the unscrupulous manufacturers who indulge in different types of tax evasion tactics. It is only by experience and on analysis of cases detected the Excise Department the Government came to know about such tax evasion tactics being followed by the unscrupulous manufacturers which prompted the Government to come out with the subsequent notifications which, as observed hereinabove, was to clarify the refund mechanism so as to provide that excise duty refund would be allowed only to the extent of duty payable on actual value addition made by the manufacturer undertaking manufacturing activities in the concerned areas. The entire genesis of the policy manifesting the intention of the Government to grant excise duty exemption/refund of excise duty paid was to provide such exemption only to actual value addition made in the respective areas. As it was found that there was misuse of excise duty exemption it was considered expedient in the public interest and with a laudable object of having genuine industrialization in backward areas or the concerned areas, the subsequent notifications/industrial policies have been issued by the Government. Therefore, the subsequent notifications/industrial policies impugned before the respective High Courts were in the public interest and even issued after thorough analysis of the cases of tax evasion and even after receipt of the reports. The earlier notifications were issued under Section 5A of the Central Excise Act and even the subsequent notifications which were issued in public interest and in the interest of Revenue were also issued under Section 5A of the Central Excise Act, which can not be said to be bad in law, arbitrary and/or hit by the doctrine of promissory estoppel14.2 The purpose of the original scheme was not to give benefit of refund of the excise duty paid on the goods manufactured only on paper or in fact not manufactured at all. As the purpose of the original notifications/incentive schemes was being frustrated by such unscrupulous manufacturers who had indulged in different types of tax evasion tactics, the subsequent notifications/industrial policies have been issued allowing refund of excise duty only to the extent of duty payable on the actual value addition made by the manufacturers undertaking manufacturing activities in these areas which is absolutely in consonance with the incentive scheme and the intention of the Government to provide the excise duty exemption only in respect of genuine manufacturing activities carried out in these areas14.3 As observed hereinabove, the subsequent notifications/industrial policies do not take away any vested right conferred under the earlier notifications/industrial policies. Under the subsequent notifications/industrial policies, the persons who establish the new undertakings shall be continue to get the refund of the excise duty. However, it is clarified by the subsequent notifications that the refund of the excise duty shall be on the actual excise duty paid on actual value addition made by the manufacturers undertaking manufacturing activities. Therefore, it cannot be said that subsequent notifications/industrial policies are hit by the doctrine of promissory estoppel. The respective High Courts have committed grave error in holding that the subsequent notifications/industrial policies impugned before the respective High Courts were hit by the doctrine of promissory estoppel. As observed and held hereinabove, the subsequent notifications/industrial policies which were impugned before the respective High Court can be said to be clarificatory in nature and the same have been issued in the larger public interest and in the interest of the Revenue, the same can be made applicable retrospectively, otherwise the object and purpose and the intention of the Government to provide excise duty exemption only in respect of genuine manufacturing activities carried out in the concerned areas shall be frustrated. As the subsequent notifications/industrial policies are to explain the earlier notifications/industrial policies, it would be without object unless construed retrospectively. The subsequent notifications impugned before the respective High Courts as such provide the manner and method of calculating the amount of refund of excise duty paid on actual manufacturing of goods. The notifications impugned before the respective High Courts can be said to be providing mode on determination of the refund of excise duty to achieve the object and purpose of providing incentive/exemption. As observed hereinabove, they do not take away any vested right conferred under the earlier notifications. The subsequent notifications therefore are clarificatory in nature, since it declares the refund of excise duty paid genuinely and paid on actual manufacturing of goods and not on the duty paid on the goods manufactured only on paper and without undertaking any manufacturing activities of such goods15. In view of the above and for the reasons stated above and once it is held that the subsequent notifications/industrial policies which were impugned before the respective High Courts are clarificatory in nature and are issued in public interest and in the interest of the Revenue and they seek to achieve the original object and purpose of giving incentive/exemption while inviting the persons to make investment on establishing the new undertakings and they do not take away any vested rights conferred under the earlier notifications/industrial policies and therefore cannot be said to be hit by the doctrine of promissory estoppel, the same is to be applied retrospectively and they cannot be said to be irrational and/or arbitrary16. Under the circumstances, the respective High Courts have committed a grave error in quashing and setting aside the subsequent notifications/industrial policies impugned before the respective High Courts on the ground that they are hit by the doctrine of promissory estoppel and that they are retrospective and not retro- active.
|
Bombay Municipal Corporation Vs. Dhondu Narayan Chowdhary | S. 105F of the Act before the Bombay City Civil Court. In that appeal it was held that the delegation was not proper inasmuch as the judicial functions of the Commissioner under Ss. 105B to 105E had been delegated to exercise under the Commissioners control and subject to his revision. The learned judge pointed out that judicial or quasi-judicial power could not ordinarily be delegated and, in any event, it could not be delegated so that the control over the decision was kept by the Commissioner. He, therefore, held that the officer who had passed the order was not properly invested with jurisdiction and the order was thus a nullity. 2. The Bombay Municipal Corporation Act is an Act of 1888 and it has been amended frequently. Section 68 is one of the original sections and it provides as follows:68. Municipal officers may be empowered to exercise certain of the powers, etc, of the Commissioner. (1) Any of the powers, duties or functions conferred or imposed upon or vested in the Commissioner by any of the sections, sub-sections or clauses mentioned in sub-section (2) may be exercised, performed or discharged, under the Commissioners control and subject to his revision and to such conditions and limitations if any, as he shall think fit to prescribe, by any municipal officer whom the Commissioner generally or specially either by name or by virtue of office, empowers in writing in this behalf; and in each of the said sections, sub-sections and clauses the word "Commissioner shall, to the extent to which any municipal officer is so empowered, be deemed to include such officer. 2. The sections, sub-sections and clause of this Act referred to in sub-section (1) are the following namely:- * * * * Section 105B. Section 105C Section 105D Section 105E * * * *" A reference to Ss. 105B, 105C, 105D and 105E was inserted by the Maharashtra Act XIV of 1961. These sections are in Chapter 6A which was also newly added by the same Act. It is not necessary to refer to these sections, except a portion from S. 105B which brings into prominence the action taken by the Corporation against the respondents: "105B Power to evict person from corporation premises. (1) Where the Commissioner is satisfied- (a) that the person authorised to occupy any corporation premises has, whether before or after the commencement of the Bombay Municipal Corporation (Amendment) Act, 1960,- * * * * (i) (ii) sub-let, contrary to the terms or conditions of his occupation, the whole or any part of such premises; or * * * *" * * * * the Commissioner may notwithstanding anything contained in any law for the time being in force, by notice ******* order that that person as well as any other person who may be in occupation of the whole or any part of the premises. shall vacate them within one month of the date of the service of the notice." It will be noticed that S. 68 was originally intended to cover very different matters because Chapter 6A could not have been in contemplation. When Chapter 6A was added and a reference to Ss. 105B to 105E was included in S.68, the wording of that section became applicable to the power exercisable under Ss. 105B to 105E even though that wording taken literally, is somewhat inapt to cover delegation of judicial power. 3. No question has been raised that any of the amendments is ultra vires so the words of S. 68 must be reasonably construed. It goes without saying that judicial power cannot ordinarily be delegated unless the law expressly or by clear implication permits it. In the present case the amendment of S. 68 by inclusion of delegation of the functions of the Commissioner under Ss. 105B to 105E does indicate the intention that the judicial or quasi-judicial powers contained in Chapter VIA were expressly intended to be delegated. To the delegation as such there can be no objection. What is objected to is the provision, both in the section as well as in the order of delegation, that the exercise of the function is to be under "the Commissioners control" and "subject to his revision." These words are really appropriate to a delegation of administrative functions where the control may be deeper then in judicial matters. In respect of judicial or quasi-judicial functions these words cannot of course bear the meaning which they bear in the delegation of administrative functions. When the Commissioner stated that his functions were delegated subject to his control and revision it did not mean that he reserved to himself the right to intervene to impose his own decision upon his delegate. What those words meant was that the Commissioner could control the exercise administratively as to the kinds of cases in which the delegate could take action or the period or time during which the power might be exercised and so on and so forth. In other words. the administrative side of the delegates duties was to be the subject of control and revision but not the essential power to decide whether to take action or not in a particular case. This is also the intention of S. 68 as interpreted in the context of the several delegated powers. This is apparent from the fact that the order of the delegate amounts to an order by the Commissioner and is appealable as such. If it were not so the appeal to the Bombay City Civil Court would be incompetent and the order could not be assailed. The order of the delegate was the order of the Commissioner and the control envisaged both in S. 68 and the order of delegation was not control over the decision as such but over the administrative aspects of cased and their disposal. No. allegation has been made that the Commissioner intervened in the decision of the case or improperly influenced it. In these circumstances, the order impugned in the appeal cannot be sustained. | 1[ds]It will be noticed that S. 68 was originally intended to cover very different matters because Chapter 6A could not have been in contemplation. When Chapter 6A was added and a reference to Ss. 105B to 105E was included in S.68, the wording of that section became applicable to the power exercisable under Ss. 105B to 105E even though that wording taken literally, is somewhat inapt to cover delegation of judicial power3. No question has been raised that any of the amendments is ultra vires so the words of S. 68 must be reasonably construed. It goes without saying that judicial power cannot ordinarily be delegated unless the law expressly or by clear implication permits it. In the present case the amendment of S. 68 by inclusion of delegation of the functions of the Commissioner under Ss. 105B to 105E does indicate the intention that the judicial or quasi-judicial powers contained in Chapter VIA were expressly intended to be delegated. To the delegation as such there can be no objection. What is objected to is the provision, both in the section as well as in the order of delegation, that the exercise of the function is to be under "the Commissioners control" and "subject to his revision." These words are really appropriate to a delegation of administrative functions where the control may be deeper then in judicial matters. In respect of judicial or quasi-judicial functions these words cannot of course bear the meaning which they bear in the delegation of administrative functions. When the Commissioner stated that his functions were delegated subject to his control and revision it did not mean that he reserved to himself the right to intervene to impose his own decision upon his delegate. What those words meant was that the Commissioner could control the exercise administratively as to the kinds of cases in which the delegate could take action or the period or time during which the power might be exercised and so on and so forth. In other words. the administrative side of the delegates duties was to be the subject of control and revision but not the essential power to decide whether to take action or not in a particular case. This is also the intention of S. 68 as interpreted in the context of the several delegated powers. This is apparent from the fact that the order of the delegate amounts to an order by the Commissioner and is appealable as such. If it were not so the appeal to the Bombay City Civil Court would be incompetent and the order could not be assailed. The order of the delegate was the order of the Commissioner and the control envisaged both in S. 68 and the order of delegation was not control over the decision as such but over the administrative aspects of cased and their disposal. No. allegation has been made that the Commissioner intervened in the decision of the case or improperly influenced it. In these circumstances, the order impugned in the appeal cannot be sustained. | 1 | 1,295 | 545 | ### 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:
S. 105F of the Act before the Bombay City Civil Court. In that appeal it was held that the delegation was not proper inasmuch as the judicial functions of the Commissioner under Ss. 105B to 105E had been delegated to exercise under the Commissioners control and subject to his revision. The learned judge pointed out that judicial or quasi-judicial power could not ordinarily be delegated and, in any event, it could not be delegated so that the control over the decision was kept by the Commissioner. He, therefore, held that the officer who had passed the order was not properly invested with jurisdiction and the order was thus a nullity. 2. The Bombay Municipal Corporation Act is an Act of 1888 and it has been amended frequently. Section 68 is one of the original sections and it provides as follows:68. Municipal officers may be empowered to exercise certain of the powers, etc, of the Commissioner. (1) Any of the powers, duties or functions conferred or imposed upon or vested in the Commissioner by any of the sections, sub-sections or clauses mentioned in sub-section (2) may be exercised, performed or discharged, under the Commissioners control and subject to his revision and to such conditions and limitations if any, as he shall think fit to prescribe, by any municipal officer whom the Commissioner generally or specially either by name or by virtue of office, empowers in writing in this behalf; and in each of the said sections, sub-sections and clauses the word "Commissioner shall, to the extent to which any municipal officer is so empowered, be deemed to include such officer. 2. The sections, sub-sections and clause of this Act referred to in sub-section (1) are the following namely:- * * * * Section 105B. Section 105C Section 105D Section 105E * * * *" A reference to Ss. 105B, 105C, 105D and 105E was inserted by the Maharashtra Act XIV of 1961. These sections are in Chapter 6A which was also newly added by the same Act. It is not necessary to refer to these sections, except a portion from S. 105B which brings into prominence the action taken by the Corporation against the respondents: "105B Power to evict person from corporation premises. (1) Where the Commissioner is satisfied- (a) that the person authorised to occupy any corporation premises has, whether before or after the commencement of the Bombay Municipal Corporation (Amendment) Act, 1960,- * * * * (i) (ii) sub-let, contrary to the terms or conditions of his occupation, the whole or any part of such premises; or * * * *" * * * * the Commissioner may notwithstanding anything contained in any law for the time being in force, by notice ******* order that that person as well as any other person who may be in occupation of the whole or any part of the premises. shall vacate them within one month of the date of the service of the notice." It will be noticed that S. 68 was originally intended to cover very different matters because Chapter 6A could not have been in contemplation. When Chapter 6A was added and a reference to Ss. 105B to 105E was included in S.68, the wording of that section became applicable to the power exercisable under Ss. 105B to 105E even though that wording taken literally, is somewhat inapt to cover delegation of judicial power. 3. No question has been raised that any of the amendments is ultra vires so the words of S. 68 must be reasonably construed. It goes without saying that judicial power cannot ordinarily be delegated unless the law expressly or by clear implication permits it. In the present case the amendment of S. 68 by inclusion of delegation of the functions of the Commissioner under Ss. 105B to 105E does indicate the intention that the judicial or quasi-judicial powers contained in Chapter VIA were expressly intended to be delegated. To the delegation as such there can be no objection. What is objected to is the provision, both in the section as well as in the order of delegation, that the exercise of the function is to be under "the Commissioners control" and "subject to his revision." These words are really appropriate to a delegation of administrative functions where the control may be deeper then in judicial matters. In respect of judicial or quasi-judicial functions these words cannot of course bear the meaning which they bear in the delegation of administrative functions. When the Commissioner stated that his functions were delegated subject to his control and revision it did not mean that he reserved to himself the right to intervene to impose his own decision upon his delegate. What those words meant was that the Commissioner could control the exercise administratively as to the kinds of cases in which the delegate could take action or the period or time during which the power might be exercised and so on and so forth. In other words. the administrative side of the delegates duties was to be the subject of control and revision but not the essential power to decide whether to take action or not in a particular case. This is also the intention of S. 68 as interpreted in the context of the several delegated powers. This is apparent from the fact that the order of the delegate amounts to an order by the Commissioner and is appealable as such. If it were not so the appeal to the Bombay City Civil Court would be incompetent and the order could not be assailed. The order of the delegate was the order of the Commissioner and the control envisaged both in S. 68 and the order of delegation was not control over the decision as such but over the administrative aspects of cased and their disposal. No. allegation has been made that the Commissioner intervened in the decision of the case or improperly influenced it. In these circumstances, the order impugned in the appeal cannot be sustained.
### Response:
1
### Explanation:
It will be noticed that S. 68 was originally intended to cover very different matters because Chapter 6A could not have been in contemplation. When Chapter 6A was added and a reference to Ss. 105B to 105E was included in S.68, the wording of that section became applicable to the power exercisable under Ss. 105B to 105E even though that wording taken literally, is somewhat inapt to cover delegation of judicial power3. No question has been raised that any of the amendments is ultra vires so the words of S. 68 must be reasonably construed. It goes without saying that judicial power cannot ordinarily be delegated unless the law expressly or by clear implication permits it. In the present case the amendment of S. 68 by inclusion of delegation of the functions of the Commissioner under Ss. 105B to 105E does indicate the intention that the judicial or quasi-judicial powers contained in Chapter VIA were expressly intended to be delegated. To the delegation as such there can be no objection. What is objected to is the provision, both in the section as well as in the order of delegation, that the exercise of the function is to be under "the Commissioners control" and "subject to his revision." These words are really appropriate to a delegation of administrative functions where the control may be deeper then in judicial matters. In respect of judicial or quasi-judicial functions these words cannot of course bear the meaning which they bear in the delegation of administrative functions. When the Commissioner stated that his functions were delegated subject to his control and revision it did not mean that he reserved to himself the right to intervene to impose his own decision upon his delegate. What those words meant was that the Commissioner could control the exercise administratively as to the kinds of cases in which the delegate could take action or the period or time during which the power might be exercised and so on and so forth. In other words. the administrative side of the delegates duties was to be the subject of control and revision but not the essential power to decide whether to take action or not in a particular case. This is also the intention of S. 68 as interpreted in the context of the several delegated powers. This is apparent from the fact that the order of the delegate amounts to an order by the Commissioner and is appealable as such. If it were not so the appeal to the Bombay City Civil Court would be incompetent and the order could not be assailed. The order of the delegate was the order of the Commissioner and the control envisaged both in S. 68 and the order of delegation was not control over the decision as such but over the administrative aspects of cased and their disposal. No. allegation has been made that the Commissioner intervened in the decision of the case or improperly influenced it. In these circumstances, the order impugned in the appeal cannot be sustained.
|
PERKINS EASTMAN ARCHITECTS DPC Vs. HSCC (INDIA) LIMITED | from today. 20. In the light of the aforestated principles, the report of the Law Commission and the decision in Voestapline Schienen Gmbh , the imperatives of creating healthy arbitration environment demand that the instant application deserves acceptance. 21. The further question that arises is whether the power can be exercised by this Court under Section 11 of the Act when the appointment of an arbitrator has already been made by the respondent and whether the appellant should be left to raise challenge at an appropriate stage in terms of remedies available in law. Similar controversy was gone into by a Designated Judge of this Court in Walter Bau AG (2015) 3 SCC 800 and the discussion on the point was as under:- 9. While it is correct that in Antrix (2014) 11 SCC 560 and Pricol Ltd. (2015) 4 SCC 177 , it was opined by this Court that after appointment of an arbitrator is made, the remedy of the aggrieved party is not under Section 11(6) but such remedy lies elsewhere and under different provisions of the Arbitration Act (Sections 12 and 13), the context in which the aforesaid view was expressed cannot be lost sight of. In Antrix (2014) 11 SCC 560 , appointment of the arbitrator, as per the ICC Rules, was as per the alternative procedure agreed upon, whereas in Pricol Ltd. (2015) 4 SCC 177 . , the party which had filed the application under Section 11(6) of the Arbitration Act had already submitted to the jurisdiction of the arbitrator. In the present case, the situation is otherwise. 10. Unless the appointment of the arbitrator is ex facie valid and such appointment satisfies the Court exercising jurisdiction under Section 11(6) of the Arbitration Act, acceptance of such appointment as a fait accompli to debar the jurisdiction under Section 11(6) cannot be countenanced in law. In the present case, the agreed upon procedure between the parties contemplated the appointment of the arbitrator by the second party within 30 days of receipt of a notice from the first party. While the decision in Datar Switchgears Ltd. 18 may have introduced some flexibility in the time frame agreed upon by the parties by extending it till a point of time anterior to the filing of the application under Section 11(6) of the Arbitration Act, it cannot be lost sight of that in the present case the appointment of Shri Justice A.D. Mane is clearly contrary to the provisions of the Rules governing the appointment of arbitrators by ICADR, which the parties had agreed to abide by in the matter of such appointment. The option given to the respondent Corporation to go beyond the panel submitted by ICADR and to appoint any person of its choice was clearly not in the contemplation of the parties. If that be so, obviously, the appointment of Shri Justice A.D. Mane is non est in law. Such an appointment, therefore, will not inhibit the exercise of jurisdiction by this Court under Section 11(6) of the Arbitration Act. It cannot, therefore, be held that the present proceeding is not maintainable in law. The appointment of Shri Justice A.D. Mane made beyond 30 days of the receipt of notice by the petitioner, though may appear to be in conformity with the law laid down in Datar Switchgears Ltd (2000) 8 SCC 151 . , is clearly contrary to the agreed procedure which required the appointment made by the respondent Corporation to be from the panel submitted by ICADR. The said appointment, therefore, is clearly invalid in law. 22. It may be noted here that the aforesaid view of the Designated Judge in Walter Bau AG (2015) 3 SCC 800 was pressed into service on behalf of the appellant in TRF Limited (2017) 8 SCC 377 and the opinion expressed by the Designated 1Judge was found to be in consonance with the binding authorities of this Court. It was observed:- 32 Mr Sundaram, learned Senior Counsel for the appellant has also drawn inspiration from the judgment passed by the Designated Judge of this Court in Walter Bau AG (2015) 3 SCC 800 , where the learned Judge, after referring to Antrix Corpn. Ltd 16 . , distinguished the same and also distinguished the authority in Pricol Ltd. v. Johnson Controls Enterprise Ltd. 17 and came to hold that: (Walter Bau AG case (2015) 3 SCC 800 , SCC p. 806, para 10) 10. Unless the appointment of the arbitrator is ex facie valid and such appointment satisfies the Court exercising jurisdiction under Section 11(6) of the Arbitration Act, acceptance of such appointment as a fait accompli to debar the jurisdiction under Section 11(6) cannot be countenanced in law. …33. We may immediately state that the opinion expressed in the aforesaid case is in consonance with the binding authorities we have referred to hereinbefore. 23. In TRF Limited (2017) 8 SCC 377 , the Managing Director of the respondent had nominated a former Judge of this Court as sole arbitrator in terms of aforesaid Clause 33(d), after which the appellant had preferred an application under Section 11(5) read with Section 11(6) of the Act. The plea was rejected by the High Court and the appeal therefrom on the issue whether the Managing Director could nominate an arbitrator was decided in favour of the appellant as stated hereinabove. As regards the issue about fresh appointment, this Court remanded the matter to the High Court for fresh consideration as is discernible from para 55 of the Judgment. In the light of these authorities there is no hindrance in entertaining the instant application preferred by the Applicants. 24. It is also clear from the Clause in the instant case that no special qualifications such as expertise in any technical field are required of an arbitrator. This was fairly accepted by the learned Senior Counsel for the respondent. 25. In the aforesaid circumstances, in our view a case is made out to entertain the instant application preferred by the Applicants. | 1[ds]8. It is not disputed by the respondent that it was a requisite condition to declare a lead member of the Consortium and that by aforesaid declaration the applicant No.1 was shown to be the lead member of theConsortium. The reliance is however placed by the respondent on Clause 9 of the Consortium Agreement by virtue of which both the Applicants would be jointly and severely responsible for the execution of the project. It is clear that the declaration shows that the Applicant No.1 was accepted to be the lead member of the Consortium. Even if the liability of both the Applicants was stated in Clause 9 to be joint and several, that by itself would not change the status of the Applicant No.1 to be the lead member. We shall, therefore, proceed on the premise that Applicant No.1 is the lead member of the Consortium9. In Larsen and Toubro Limited SCOMI Engineering BHD 5 more or less similar fact situation came up for consideration. The only distinction was that the lead member in the consortium was an entity registered in India10. It was thus held that Association and Body of individuals referred to in Section 2(1)(f) of the Act would be separate categories. However, the lead member of the Association in that case being an Indian entity, the Central Management and Control of the Association was held to be in a country other than India. Relying on said decision we conclude that the lead member of the Consortium company i.e. Applicant No.1 being an Architectural Firm having its registered office in New York, requirements of Section 2(1)(f) of the Act are satisfied and the arbitration in the present case would be an International Commercial ArbitrationWe thus have two categories of cases. The first, similar to the one dealt with in TRF Limited (2017) 8 SCC 377 where the Managing Director himself is named as an arbitrator with an additional power to appoint any other person as an arbitrator. In the second category, the Managing Director is not to act as an arbitrator himself but is empowered or authorised to appoint any other person of his choice or discretion as an arbitrator. If, in the first category of cases, the Managing Director was found incompetent, it was because of the interest that he would be said to be having in the outcome or result of the dispute. The element of invalidity would thus be directly relatable to and arise from the interest that he would be having in such outcome or decision. If that be the test, similar invalidity would always arise and spring even in the second category of cases. If the interest that he has in the outcome of the dispute, is taken to be the basis for the possibility of bias, it will always be present irrespective of whether the matter stands under the first or second category of cases. We are conscious that if such deduction is drawn from the decision of this Court in TRF Limited (2017) 8 SCC 377 , all cases having clauses similar to that with which we are presently concerned, a party to the agreement would be disentitled to make any appointment of an Arbitrator on its own and it would always be available to argue that a party or an official or an authority having interest in the dispute would be disentitled to make appointment of an Arbitrator16. But, in our view that has to be the logical deduction from TRF Limited (2017) 8 SCC 377 . Paragraph 50 of the decision shows that this Court was concerned with the issue, whether the Managing Director, after becoming ineligible by operation of law, is he still eligible to nominate an Arbitrator The ineligibility referred to therein, was as a result of operation of law, in that a person having an interest in the dispute or in the outcome or decision thereof, must not only be ineligible to act as an arbitrator but must also not be eligible to appoint anyone else as an arbitrator and that such person cannot and should not have any role in charting out any course to the dispute resolution by having the power to appoint an arbitrator. The next sentences in the paragraph, further show that cases where both the parties could nominate respective arbitrators of their choice were found to be completely a different situation. The reason is clear that whatever advantage a party may derive by nominating an arbitrator of its choice would get counter balanced by equal power with the other party. But, in a case where only one party has a right to appoint a sole arbitrator, its choice will always have an element of exclusivity in determining or charting the course for dispute resolution. Naturally, the person who has an interest in the outcome or decision of the dispute must not have the power to appoint a sole arbitrator. That has to be taken as the essence of the amendments brought in by the Arbitration and Conciliation (Amendment) Act, 2015 (Act 3 of 2016) and recognised by the decision of this Court in TRF Limited (2017) 8 SCC 377 19. In Voestalpine 3 , this Court dealt with independence and impartiality of the arbitrator as under:20. Independence and impartiality of the arbitrator are the hallmarks of any arbitration proceedings. Rule against bias is one of the fundamental principles of natural justice which applied to all judicial and quasi- judicial proceedings. It is for this reason that notwithstanding the fact that relationship between the parties to the arbitration and the arbitrators themselves are contractual in nature and the source of an arbitrators appointment is deduced from the agreement entered into between the parties, notwithstanding the same non-independence and non- impartiality of such arbitrator (though contractually agreed upon) would render him ineligible to conduct the arbitration. The genesis behind this rational is that even when an arbitrator is appointed in terms of contract and by the parties to the contract, he is independent of the parties. Functions and duties require him to rise above the partisan interest of the parties and not to act in, or so as to further, the particular interest of either parties. After all, the arbitrator has adjudicatory role to perform and, therefore, he must be independent of parties as well as impartial. The United Kingdom Supreme Court has beautifully highlighted this aspect in Hashwani v. Jivraj (2011) 1 WLR 1872; 2011 UKSC 40 in the following words: (WLR p. 1889, para 45)45. … the dominant purpose of appointing an arbitrator or arbitrators is the impartial resolution of the dispute between the parties in accordance with the terms of the agreement and, although the contract between the parties and the arbitrators would be a contract for the provision of personal services, they were not personal services under the direction of the parties21. Similarly, Cour de Cassation, France, in a judgment delivered in 1972 in Consorts Ury, underlined that:an independent mind is indispensable in the exercise of judicial power, whatever the source of that power may be, and it is one of the essential qualities of an arbitrator22. Independence and impartiality are two different concepts. An arbitrator may be independent and yet, lack impartiality, or vice versa. Impartiality, as is well accepted, is a more subjective concept as compared to independence. Independence, which is more an objective concept, may, thus, be more straightforwardly ascertained by the parties at the outset of the arbitration proceedings in light of the circumstances disclosed by the arbitrator, while partiality will more likely surface during the arbitration proceedings30. Time has come to send positive signals to the international business community, in order to create healthy arbitration environment and conducive arbitration culture in this country. Further, as highlighted by the Law Commission also in its report, duty becomes more onerous in government contracts, where one of the parties to the dispute is the Government or public sector undertaking itself and the authority to appoint the arbitrator rests with it. In the instant case also, though choice is given by DMRC to the opposite party but it is limited to choose an arbitrator from the panel prepared by DMRC. It, therefore, becomes imperative to have a much broadbased panel, so that there is no misapprehension that principle of impartiality and independence would be discarded at any stage of the proceedings, specially at the stage of constitution of the Arbitral Tribunal. We, therefore, direct that DMRC shall prepare a broadbased panel on the aforesaid lines, within a period of two months from today20. In the light of the aforestated principles, the report of the Law Commission and the decision in Voestapline Schienen Gmbhthe imperatives of creating healthy arbitration environment demand that the instant application deserves acceptance23. In TRF Limited (2017) 8 SCC 377 , the Managing Director of the respondent had nominated a former Judge of this Court as sole arbitrator in terms of aforesaid Clause 33(d), after which the appellant had preferred an application under Section 11(5) read with Section 11(6) of the Act. The plea was rejected by the High Court and the appeal therefrom on the issue whether the Managing Director could nominate an arbitrator was decided in favour of the appellant as stated hereinabove. As regards the issue about fresh appointment, this Court remanded the matter to the High Court for fresh consideration as is discernible from para 55 of the Judgment. In the light of these authorities there is no hindrance in entertaining the instant application preferred by the Applicants24. It is also clear from the Clause in the instant case that no special qualifications such as expertise in any technical field are required of an arbitrator. This was fairly accepted by the learned Senior Counsel for the respondent25. In the aforesaid circumstances, in our view a case is made out to entertain the instant application preferred by the Applicants22. It may be noted here that the aforesaid view of the Designated Judge in Walter Bau AG (2015) 3 SCC 800 was pressed into service on behalf of the appellant in TRF Limited (2017) 8 SCC 377 and the opinion expressed by the Designated 1Judge was found to be in consonance with the binding authorities of this Court. It was observed:-32 Mr Sundaram, learned Senior Counsel for the appellant has also drawn inspiration from the judgment passed by the Designated Judge of this Court in Walter Bau AG(2015) 3 SCC 800 , where the learned Judge, after referring to Antrix Corpn. Ltd 16 . , distinguished the same and also distinguished the authority in Pricol Ltd. v. Johnson Controls Enterprise Ltd. 17 and came to hold that: (Walter Bau AG case(2015) 3 SCC 800 , SCC p. 806, para 10)10. Unless the appointment of the arbitrator is ex facie valid and such appointment satisfies the Court exercising jurisdiction under Section 11(6) of the Arbitration Act, acceptance of such appointment as a fait accompli to debar the jurisdiction under Section 11(6) cannot be countenanced in law. …22. It may be noted here that the aforesaid view of the Designated Judge in Walter Bau AG (2015) 3 SCC 800 was pressed into service on behalf of the appellant in TRF Limited (2017) 8 SCC 377 and the opinion expressed by the Designated 1Judge was found to be in consonance with the binding authorities of this Court. It was observed:-32 Mr Sundaram, learned Senior Counsel for the appellant has also drawn inspiration from the judgment passed by the Designated Judge of this Court in Walter Bau AG(2015) 3 SCC 800 , where the learned Judge, after referring to Antrix Corpn. Ltd 16 . , distinguished the same and also distinguished the authority in Pricol Ltd. v. Johnson Controls Enterprise Ltd. 17 and came to hold that: (Walter Bau AG case(2015) 3 SCC 800 , SCC p. 806, para 10)10. Unless the appointment of the arbitrator is ex facie valid and such appointment satisfies the Court exercising jurisdiction under Section 11(6) of the Arbitration Act, acceptance of such appointment as a fait accompli to debar the jurisdiction under Section 11(6) cannot be countenanced in law. …33. We may immediately state that the opinion expressed in the aforesaid case is in consonance with the binding authorities we have referred to hereinbefore. | 1 | 10,053 | 2,279 | ### Instruction:
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from today. 20. In the light of the aforestated principles, the report of the Law Commission and the decision in Voestapline Schienen Gmbh , the imperatives of creating healthy arbitration environment demand that the instant application deserves acceptance. 21. The further question that arises is whether the power can be exercised by this Court under Section 11 of the Act when the appointment of an arbitrator has already been made by the respondent and whether the appellant should be left to raise challenge at an appropriate stage in terms of remedies available in law. Similar controversy was gone into by a Designated Judge of this Court in Walter Bau AG (2015) 3 SCC 800 and the discussion on the point was as under:- 9. While it is correct that in Antrix (2014) 11 SCC 560 and Pricol Ltd. (2015) 4 SCC 177 , it was opined by this Court that after appointment of an arbitrator is made, the remedy of the aggrieved party is not under Section 11(6) but such remedy lies elsewhere and under different provisions of the Arbitration Act (Sections 12 and 13), the context in which the aforesaid view was expressed cannot be lost sight of. In Antrix (2014) 11 SCC 560 , appointment of the arbitrator, as per the ICC Rules, was as per the alternative procedure agreed upon, whereas in Pricol Ltd. (2015) 4 SCC 177 . , the party which had filed the application under Section 11(6) of the Arbitration Act had already submitted to the jurisdiction of the arbitrator. In the present case, the situation is otherwise. 10. Unless the appointment of the arbitrator is ex facie valid and such appointment satisfies the Court exercising jurisdiction under Section 11(6) of the Arbitration Act, acceptance of such appointment as a fait accompli to debar the jurisdiction under Section 11(6) cannot be countenanced in law. In the present case, the agreed upon procedure between the parties contemplated the appointment of the arbitrator by the second party within 30 days of receipt of a notice from the first party. While the decision in Datar Switchgears Ltd. 18 may have introduced some flexibility in the time frame agreed upon by the parties by extending it till a point of time anterior to the filing of the application under Section 11(6) of the Arbitration Act, it cannot be lost sight of that in the present case the appointment of Shri Justice A.D. Mane is clearly contrary to the provisions of the Rules governing the appointment of arbitrators by ICADR, which the parties had agreed to abide by in the matter of such appointment. The option given to the respondent Corporation to go beyond the panel submitted by ICADR and to appoint any person of its choice was clearly not in the contemplation of the parties. If that be so, obviously, the appointment of Shri Justice A.D. Mane is non est in law. Such an appointment, therefore, will not inhibit the exercise of jurisdiction by this Court under Section 11(6) of the Arbitration Act. It cannot, therefore, be held that the present proceeding is not maintainable in law. The appointment of Shri Justice A.D. Mane made beyond 30 days of the receipt of notice by the petitioner, though may appear to be in conformity with the law laid down in Datar Switchgears Ltd (2000) 8 SCC 151 . , is clearly contrary to the agreed procedure which required the appointment made by the respondent Corporation to be from the panel submitted by ICADR. The said appointment, therefore, is clearly invalid in law. 22. It may be noted here that the aforesaid view of the Designated Judge in Walter Bau AG (2015) 3 SCC 800 was pressed into service on behalf of the appellant in TRF Limited (2017) 8 SCC 377 and the opinion expressed by the Designated 1Judge was found to be in consonance with the binding authorities of this Court. It was observed:- 32 Mr Sundaram, learned Senior Counsel for the appellant has also drawn inspiration from the judgment passed by the Designated Judge of this Court in Walter Bau AG (2015) 3 SCC 800 , where the learned Judge, after referring to Antrix Corpn. Ltd 16 . , distinguished the same and also distinguished the authority in Pricol Ltd. v. Johnson Controls Enterprise Ltd. 17 and came to hold that: (Walter Bau AG case (2015) 3 SCC 800 , SCC p. 806, para 10) 10. Unless the appointment of the arbitrator is ex facie valid and such appointment satisfies the Court exercising jurisdiction under Section 11(6) of the Arbitration Act, acceptance of such appointment as a fait accompli to debar the jurisdiction under Section 11(6) cannot be countenanced in law. …33. We may immediately state that the opinion expressed in the aforesaid case is in consonance with the binding authorities we have referred to hereinbefore. 23. In TRF Limited (2017) 8 SCC 377 , the Managing Director of the respondent had nominated a former Judge of this Court as sole arbitrator in terms of aforesaid Clause 33(d), after which the appellant had preferred an application under Section 11(5) read with Section 11(6) of the Act. The plea was rejected by the High Court and the appeal therefrom on the issue whether the Managing Director could nominate an arbitrator was decided in favour of the appellant as stated hereinabove. As regards the issue about fresh appointment, this Court remanded the matter to the High Court for fresh consideration as is discernible from para 55 of the Judgment. In the light of these authorities there is no hindrance in entertaining the instant application preferred by the Applicants. 24. It is also clear from the Clause in the instant case that no special qualifications such as expertise in any technical field are required of an arbitrator. This was fairly accepted by the learned Senior Counsel for the respondent. 25. In the aforesaid circumstances, in our view a case is made out to entertain the instant application preferred by the Applicants.
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be independent of parties as well as impartial. The United Kingdom Supreme Court has beautifully highlighted this aspect in Hashwani v. Jivraj (2011) 1 WLR 1872; 2011 UKSC 40 in the following words: (WLR p. 1889, para 45)45. … the dominant purpose of appointing an arbitrator or arbitrators is the impartial resolution of the dispute between the parties in accordance with the terms of the agreement and, although the contract between the parties and the arbitrators would be a contract for the provision of personal services, they were not personal services under the direction of the parties21. Similarly, Cour de Cassation, France, in a judgment delivered in 1972 in Consorts Ury, underlined that:an independent mind is indispensable in the exercise of judicial power, whatever the source of that power may be, and it is one of the essential qualities of an arbitrator22. Independence and impartiality are two different concepts. An arbitrator may be independent and yet, lack impartiality, or vice versa. Impartiality, as is well accepted, is a more subjective concept as compared to independence. Independence, which is more an objective concept, may, thus, be more straightforwardly ascertained by the parties at the outset of the arbitration proceedings in light of the circumstances disclosed by the arbitrator, while partiality will more likely surface during the arbitration proceedings30. Time has come to send positive signals to the international business community, in order to create healthy arbitration environment and conducive arbitration culture in this country. Further, as highlighted by the Law Commission also in its report, duty becomes more onerous in government contracts, where one of the parties to the dispute is the Government or public sector undertaking itself and the authority to appoint the arbitrator rests with it. In the instant case also, though choice is given by DMRC to the opposite party but it is limited to choose an arbitrator from the panel prepared by DMRC. It, therefore, becomes imperative to have a much broadbased panel, so that there is no misapprehension that principle of impartiality and independence would be discarded at any stage of the proceedings, specially at the stage of constitution of the Arbitral Tribunal. We, therefore, direct that DMRC shall prepare a broadbased panel on the aforesaid lines, within a period of two months from today20. In the light of the aforestated principles, the report of the Law Commission and the decision in Voestapline Schienen Gmbhthe imperatives of creating healthy arbitration environment demand that the instant application deserves acceptance23. In TRF Limited (2017) 8 SCC 377 , the Managing Director of the respondent had nominated a former Judge of this Court as sole arbitrator in terms of aforesaid Clause 33(d), after which the appellant had preferred an application under Section 11(5) read with Section 11(6) of the Act. The plea was rejected by the High Court and the appeal therefrom on the issue whether the Managing Director could nominate an arbitrator was decided in favour of the appellant as stated hereinabove. As regards the issue about fresh appointment, this Court remanded the matter to the High Court for fresh consideration as is discernible from para 55 of the Judgment. In the light of these authorities there is no hindrance in entertaining the instant application preferred by the Applicants24. It is also clear from the Clause in the instant case that no special qualifications such as expertise in any technical field are required of an arbitrator. This was fairly accepted by the learned Senior Counsel for the respondent25. In the aforesaid circumstances, in our view a case is made out to entertain the instant application preferred by the Applicants22. It may be noted here that the aforesaid view of the Designated Judge in Walter Bau AG (2015) 3 SCC 800 was pressed into service on behalf of the appellant in TRF Limited (2017) 8 SCC 377 and the opinion expressed by the Designated 1Judge was found to be in consonance with the binding authorities of this Court. It was observed:-32 Mr Sundaram, learned Senior Counsel for the appellant has also drawn inspiration from the judgment passed by the Designated Judge of this Court in Walter Bau AG(2015) 3 SCC 800 , where the learned Judge, after referring to Antrix Corpn. Ltd 16 . , distinguished the same and also distinguished the authority in Pricol Ltd. v. Johnson Controls Enterprise Ltd. 17 and came to hold that: (Walter Bau AG case(2015) 3 SCC 800 , SCC p. 806, para 10)10. Unless the appointment of the arbitrator is ex facie valid and such appointment satisfies the Court exercising jurisdiction under Section 11(6) of the Arbitration Act, acceptance of such appointment as a fait accompli to debar the jurisdiction under Section 11(6) cannot be countenanced in law. …22. It may be noted here that the aforesaid view of the Designated Judge in Walter Bau AG (2015) 3 SCC 800 was pressed into service on behalf of the appellant in TRF Limited (2017) 8 SCC 377 and the opinion expressed by the Designated 1Judge was found to be in consonance with the binding authorities of this Court. It was observed:-32 Mr Sundaram, learned Senior Counsel for the appellant has also drawn inspiration from the judgment passed by the Designated Judge of this Court in Walter Bau AG(2015) 3 SCC 800 , where the learned Judge, after referring to Antrix Corpn. Ltd 16 . , distinguished the same and also distinguished the authority in Pricol Ltd. v. Johnson Controls Enterprise Ltd. 17 and came to hold that: (Walter Bau AG case(2015) 3 SCC 800 , SCC p. 806, para 10)10. Unless the appointment of the arbitrator is ex facie valid and such appointment satisfies the Court exercising jurisdiction under Section 11(6) of the Arbitration Act, acceptance of such appointment as a fait accompli to debar the jurisdiction under Section 11(6) cannot be countenanced in law. …33. We may immediately state that the opinion expressed in the aforesaid case is in consonance with the binding authorities we have referred to hereinbefore.
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Lt. Governor Of Delhi Vs. V.K. Sodhi | the Societies Registration Act or a company incorporated under the Companies Act, is by that reason alone excluded from the concept of State under Article 12 of the Constitution. In the case of SCERT, in addition to the operational autonomy of the Executive Committee, it could also amend its bye-laws subject to the provisions of the Delhi Societies Registration Act though with the previous concurrence of the Government of Delhi and that the proceedings of the Council are to be made available by the Secretary for inspection of the Registrar of Societies as per the provisions of the Societies Registration Act. The records and proceedings of the Council have also to be made available for inspection by the Registrar of Societies. In the case of dissolution of SCERT, the liabilities and assets are to be taken over at book value by the Government of Delhi which had to appoint a liquidator for completing the dissolution of the Body. The creditors loans and other liabilities of SCERT shall have preference and bear a first charge on the assets of the Council at the time of dissolution. This is not an unconditional vesting of the assets on dissolution with the Government. It is also provided that the provisions of the Societies Registration Act, 1860 had to be complied with in the matter of filing list of office-bearers every year with the Registrar and the carrying out of the amendments in accordance with the procedure laid down in the Act of 1860 and the dissolution being in terms of Sections 13 and 14 of the Societies Registration Act, 1860 and making all the provisions of the Societies Registration Act applicable to the Society. These provisions, in our view, indicate that SCERT is subservient to the provisions of the Societies Registration Act rather than to the State Government and that the intention was to keep SCERT as an independent body and the role of the State Government cannot be compared to that of the Central Government in the case of Council of Scientific and Industrial Research. 14. As we understand it, even going by paragraph 40 of the judgment in Pradeep Kumar Biswas (supra), which we have quoted above, we have to consider the cumulative effect of all the facts available in the case. So considered, we are inclined to hold that SCERT is not a State or other authority within the meaning of Article 12 of the Constitution of India. As we see it, the High Court has not independently discussed the relevant rules governing the functioning and administration of SCERT. It has proceeded on the basis that in the face of Pradeep Kumar Biswas (supra) decision, the decision in Chander Mohan Khanna (supra) must be taken to be overruled and no further discussion of the question is necessary. But, in our view, even going by Pradeep Kumar Biswas (supra), each case has to be considered with reference to the facts available for determining whether the body concerned is a State or other authority within the meaning of Article 12 of the Constitution of India. So considered, we find that the Government does not have deep and pervasive control over the working of SCERT. It does not have financial control in the sense that once the finances are made available to it, the administration of those finances is left to SCERT and there is no further governmental control. In this situation, we accept the submission on behalf of the appellants and hold that SCERT is not a State or other authority within the meaning of Article 12 of the Constitution of India. After all, the very formation of an independent society under the Societies Registration Act would also suggest that the intention was not to make the body a mere appendage of the State. We reverse the finding of the High Court on this aspect. 15. Once we hold that SCERT is not a State or other authority within the meaning of Article 12 of the Constitution of India, we do not find ourselves persuaded to issue any such direction as sought for by the writ petitioners (the respondents herein). In fact, it becomes unnecessary to go into the question of validity of the amendment of Regulation 67, the effect of the uniform non implementation of Regulation 67 as it stood earlier, and the effect of the absence of a challenge in the writ petition to the amendment to the Regulation itself. It is also not necessary to go into the question whether SCERT should seek the permission of the Government for incurring additional expenditure in terms of service benefits to its employees. 16. It appears to us that in the case of bodies like SCERT, the court cannot ignore the financial implications of implementing the directions that it is called upon to issue. The object of SCERT is laudable and it has to coordinate and promote education in the State. Its resources are limited and the main income is by way of grant from the State Government. When SCERT pleads that it cannot spend the whole of the grant or a major portion of the grant in paying salaries and emoluments to its employees and if it does so, that may tend to frustrate the very object with which the society was formed, it is an argument that has to be considered weighty by a court called upon to exercise jurisdiction under Article 226 of the Constitution of India. A court cannot issue a direction which would tend to frustrate the very object with which a society like SCERT is formed or a body like SCERT is created. After all, there may be a point of time in a welfare State where the right of the employees must be subservient to the right of the society. In the matter of education, surely, the interests of the society at large should prevail and issue of any direction that may endanger such interests must be done with extreme caution and only after careful deliberation. | 1[ds]9. As the decisions of this Court show, there is no simple litmus test, to determine whether an entity is a State or other authority within the meaning of Article 12 of the Constitution of India. What is clear from the decisions is that the various facets of the foundation and the working of the entity would be relevant in determining the question in the context of the duties entrusted to it or taken up by it for performance. It is in that context that in the latest larger Bench decision in Pradeep Kumar Biswas (supra), the majority summed up the position in paragraph 40 thus:-The picture that ultimately emerges is that the tests formulated in Ajay Hasia are not a rigid set of principles so that if a body falls within any one of them it must, ex hypothesi, be considered to be a State within the meaning of Article 12. The question in each case would be - whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a StateWhat therefore falls for consideration is whether in the context of the functions entrusted to it, the rules and bye-laws that govern it and the financial position enjoyed by it, SCERT can be said to be financially, functionally and administratively dominated by or under the control of the Government10. It is in this context that the decision in Chander Mohan Khanna (supra) assumes importance. It appears to be common case that SCERT and NCERT are organizations parallel in nature and the High Court has also recorded:It is accepted that the third respondent (SCERT) was formed basically on the same lines as NCERTThis Court in Chander Mohan Khanna (supra) on discussing the relevant provisions of the Memorandum of Association and the Rules of NCERT came to the conclusion that NCERT was not a State or other authority within the meaning of Article 12 of the Constitution of India. This Court after quoting from the decision of the High Court regarding the relevant Rules of NCERT stated:The object of the NCERT as seen from the above analysis is to assist and advise the Ministry of Education and Social Welfare in the implementation of the Governmental policies and major programmes in the field of education particularly school education. The NCERT undertakes several kinds of programmes and activities connected with the coordination of research extension services and training, dissemination of improved educational techniques, collaboration in the educational programmes. It also undertakes preparation and publication of books, materials, periodicals and other literature. These activities are not wholly related to Government functions. The affairs of the NCERT are conducted by the Executive Committee comprising of Government servants and educationists. The Executive Committee would enter into arrangements with Government, public or private organisations or individuals in furtherance of the objectives for implementation of programmes. The funds of the NCERT consist of: (i) grants made by the Government, (ii) contribution from other sources and (iii) income from its own assets. It is free to apply its income and property towards the promotion of its objectives and implementation of the programmes. The Government control is confined only to the proper utilisation of the grant. The NCERT is thus largely an autonomous bodyTheir Lordships concluded that in their Lordships opinion having regard to the indications to which they had called attention earlier, NCERT did not qualify as a State under Article 12 of the Constitution of India. The provisions of the Memorandum of Association and the bye-laws of SCERT are more or less the same as that of NCERT. Whereas NCERT was to assist the National Government in the matter of coordinating education, SCERT was to assist the State Government in the matter of promoting education within the State of Delhi. It is also governed by an Executive Committee. The income and property of the Council however derived has to be applied towards the promotion of the objectives set forth in the Memorandum of Association. The membership of the Council included ex officio the Lieutenant Governor of Delhi, the Executive Councilor (Education) of Delhi Administration and various educational authorities. The Executive Committee was to be the main authority of the Council and it was entitled to create or constitute other authorities for carrying out the objectives. The affairs of the Committee shall be administered subject to the rules and orders of the Council by an Executive Committee which was to consist of various officers of the Delhi Administration. The Committee had the power, with the previous approval of the Council, to frame Regulations including Regulations regarding terms and tenure of appointments, emoluments, allowances, rules of discipline and other conditions of service of the officers and the staff of the Council. The Council was to be fully financed by the Government and the funds of the Council was to consist of grants made by the Administration of Delhi/Delhi State and Government of India for the furtherance of the objects of the Council, contributions from other sources, income from assets and publication of the Council and receipt of the Council from other sources. The accounts had to be audited annually by Chartered Accountants and to be approved by the Annual General Meeting of the Council. The State Government had no role to play on the administration of the Council or in the working of the Council or over its finances, once the grant was made11. The two elements, one, of a function of the State, namely, the coordinating of education and the other, of the Council being dependant on the funding by the State, satisfied two of the tests indicated by the decisions of this Court. But, at the same time, from that alone it could not be assumed that SCERT is a State. It has to be noted that though finance is made available by the State, in the matter of administration of that finance, the Council is supreme. The administration is also completely with the Council. There is no governmental interference or control either financially, functionally or administratively, in the working of the Council. These were the aspects taken note of in Chander Mohan Khanna (supra) to come to the conclusion that NCERT is not a State or other authority within the meaning of Article 12 of the Constitution of India. No doubt, in Chander Mohan Khanna (supra), the Bench noted that the fact that education was a State function could not make any difference. This part of the reasoning in Chander Mohan Khanna (supra) case has been specifically disapproved by the majority in Pradeep Kumar Biswas (supra). The majority noted that the objects of forming Indian Institute of Chemical Biology was with the view of entrusting it with a function that is fundamental to the governance of the country and quoted with approval the following passage in Rajasthan SEB Vs. Mohan Lal [(1967) 3 S.C.R. 377]:The State, as defined in Article 12, is thus comprehended to include bodies created for the purpose of promoting the educational and economic interests of the peopleWe are in respectful agreement with this statement of the law. The observations to the contrary in Chander Mohan Khanna V. NCERT relied on by the learned Attorney-General in this context, do not represent the correct legal position12. But, it may be noticed that in conclusion, the majority only overruled the decision in Sabhajit Tewary (supra) and did not say anything further regarding the decision in Chander Mohan Khanna (supra)13. We also find substantial differences in the two set ups. Sabhajit Tewary (supra), after referring to the rules of the Council of Scientific and Industrial Research which was registered under the Societies Registration Act, concluded that it was not a State within the meaning of Article 12 of the Constitution. While overruling the said decision, the majority in Pradeep Kumar Biswas (supra) took the view that the dominant role played by the Government of India in the governing body and the ubiquitous control of the Government in the Council and the complete subjugation of the Governing Body to the will of the Central Government, the inability of the Council to lay down or change the terms and conditions of service of its employees and the inability to alter any bye-law without the approval of the Government of India and the owning by the Central Government of the assets and funds of the Council though normally owned by the society, all indicated that there was effective and pervasive control over the functioning of the Council and since it was also entrusted with a Governmental function, the justifiable conclusion was that it was a State within the meaning of Article 12 of the Constitution. The majority also noticed that on a winding up of that Council, the entire assets were to vest in the Central Government and that was also a relevant indication. Their Lordships in the majority also specifically overruled as a legal principle that a Society registered under the Societies Registration Act or a company incorporated under the Companies Act, is by that reason alone excluded from the concept of State under Article 12 of the Constitution. In the case of SCERT, in addition to the operational autonomy of the Executive Committee, it could also amend its bye-laws subject to the provisions of the Delhi Societies Registration Act though with the previous concurrence of the Government of Delhi and that the proceedings of the Council are to be made available by the Secretary for inspection of the Registrar of Societies as per the provisions of the Societies Registration Act. The records and proceedings of the Council have also to be made available for inspection by the Registrar of Societies. In the case of dissolution of SCERT, the liabilities and assets are to be taken over at book value by the Government of Delhi which had to appoint a liquidator for completing the dissolution of the Body. The creditors loans and other liabilities of SCERT shall have preference and bear a first charge on the assets of the Council at the time of dissolution. This is not an unconditional vesting of the assets on dissolution with the Government. It is also provided that the provisions of the Societies Registration Act, 1860 had to be complied with in the matter of filing list of office-bearers every year with the Registrar and the carrying out of the amendments in accordance with the procedure laid down in the Act of 1860 and the dissolution being in terms of Sections 13 and 14 of the Societies Registration Act, 1860 and making all the provisions of the Societies Registration Act applicable to the Society. These provisions, in our view, indicate that SCERT is subservient to the provisions of the Societies Registration Act rather than to the State Government and that the intention was to keep SCERT as an independent body and the role of the State Government cannot be compared to that of the Central Government in the case of Council of Scientific and Industrial Research14. As we understand it, even going by paragraph 40 of the judgment in Pradeep Kumar Biswas (supra), which we have quoted above, we have to consider the cumulative effect of all the facts available in the case. So considered, we are inclined to hold that SCERT is not a State or other authority within the meaning of Article 12 of the Constitution of India. As we see it, the High Court has not independently discussed the relevant rules governing the functioning and administration of SCERT. It has proceeded on the basis that in the face of Pradeep Kumar Biswas (supra) decision, the decision in Chander Mohan Khanna (supra) must be taken to be overruled and no further discussion of the question is necessary. But, in our view, even going by Pradeep Kumar Biswas (supra), each case has to be considered with reference to the facts available for determining whether the body concerned is a State or other authority within the meaning of Article 12 of the Constitution of India. So considered, we find that the Government does not have deep and pervasive control over the working of SCERT. It does not have financial control in the sense that once the finances are made available to it, the administration of those finances is left to SCERT and there is no further governmental control. In this situation, we accept the submission on behalf of the appellants and hold that SCERT is not a State or other authority within the meaning of Article 12 of the Constitution of India. After all, the very formation of an independent society under the Societies Registration Act would also suggest that the intention was not to make the body a mere appendage of the State. We reverse the finding of the High Court on this aspect15. Once we hold that SCERT is not a State or other authority within the meaning of Article 12 of the Constitution of India, we do not find ourselves persuaded to issue any such direction as sought for by the writ petitioners (the respondents herein). In fact, it becomes unnecessary to go into the question of validity of the amendment of Regulation 67, the effect of the uniform non implementation of Regulation 67 as it stood earlier, and the effect of the absence of a challenge in the writ petition to the amendment to the Regulation itself. It is also not necessary to go into the question whether SCERT should seek the permission of the Government for incurring additional expenditure in terms of service benefits to its employees16. It appears to us that in the case of bodies like SCERT, the court cannot ignore the financial implications of implementing the directions that it is called upon to issue. The object of SCERT is laudable and it has to coordinate and promote education in the State. Its resources are limited and the main income is by way of grant from the State Government. When SCERT pleads that it cannot spend the whole of the grant or a major portion of the grant in paying salaries and emoluments to its employees and if it does so, that may tend to frustrate the very object with which the society was formed, it is an argument that has to be considered weighty by a court called upon to exercise jurisdiction under Article 226 of the Constitution of India. A court cannot issue a direction which would tend to frustrate the very object with which a society like SCERT is formed or a body like SCERT is created. After all, there may be a point of time in a welfare State where the right of the employees must be subservient to the right of the society. In the matter of education, surely, the interests of the society at large should prevail and issue of any direction that may endanger such interests must be done with extreme caution and only after careful deliberation | 1 | 4,367 | 2,768 | ### 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 Societies Registration Act or a company incorporated under the Companies Act, is by that reason alone excluded from the concept of State under Article 12 of the Constitution. In the case of SCERT, in addition to the operational autonomy of the Executive Committee, it could also amend its bye-laws subject to the provisions of the Delhi Societies Registration Act though with the previous concurrence of the Government of Delhi and that the proceedings of the Council are to be made available by the Secretary for inspection of the Registrar of Societies as per the provisions of the Societies Registration Act. The records and proceedings of the Council have also to be made available for inspection by the Registrar of Societies. In the case of dissolution of SCERT, the liabilities and assets are to be taken over at book value by the Government of Delhi which had to appoint a liquidator for completing the dissolution of the Body. The creditors loans and other liabilities of SCERT shall have preference and bear a first charge on the assets of the Council at the time of dissolution. This is not an unconditional vesting of the assets on dissolution with the Government. It is also provided that the provisions of the Societies Registration Act, 1860 had to be complied with in the matter of filing list of office-bearers every year with the Registrar and the carrying out of the amendments in accordance with the procedure laid down in the Act of 1860 and the dissolution being in terms of Sections 13 and 14 of the Societies Registration Act, 1860 and making all the provisions of the Societies Registration Act applicable to the Society. These provisions, in our view, indicate that SCERT is subservient to the provisions of the Societies Registration Act rather than to the State Government and that the intention was to keep SCERT as an independent body and the role of the State Government cannot be compared to that of the Central Government in the case of Council of Scientific and Industrial Research. 14. As we understand it, even going by paragraph 40 of the judgment in Pradeep Kumar Biswas (supra), which we have quoted above, we have to consider the cumulative effect of all the facts available in the case. So considered, we are inclined to hold that SCERT is not a State or other authority within the meaning of Article 12 of the Constitution of India. As we see it, the High Court has not independently discussed the relevant rules governing the functioning and administration of SCERT. It has proceeded on the basis that in the face of Pradeep Kumar Biswas (supra) decision, the decision in Chander Mohan Khanna (supra) must be taken to be overruled and no further discussion of the question is necessary. But, in our view, even going by Pradeep Kumar Biswas (supra), each case has to be considered with reference to the facts available for determining whether the body concerned is a State or other authority within the meaning of Article 12 of the Constitution of India. So considered, we find that the Government does not have deep and pervasive control over the working of SCERT. It does not have financial control in the sense that once the finances are made available to it, the administration of those finances is left to SCERT and there is no further governmental control. In this situation, we accept the submission on behalf of the appellants and hold that SCERT is not a State or other authority within the meaning of Article 12 of the Constitution of India. After all, the very formation of an independent society under the Societies Registration Act would also suggest that the intention was not to make the body a mere appendage of the State. We reverse the finding of the High Court on this aspect. 15. Once we hold that SCERT is not a State or other authority within the meaning of Article 12 of the Constitution of India, we do not find ourselves persuaded to issue any such direction as sought for by the writ petitioners (the respondents herein). In fact, it becomes unnecessary to go into the question of validity of the amendment of Regulation 67, the effect of the uniform non implementation of Regulation 67 as it stood earlier, and the effect of the absence of a challenge in the writ petition to the amendment to the Regulation itself. It is also not necessary to go into the question whether SCERT should seek the permission of the Government for incurring additional expenditure in terms of service benefits to its employees. 16. It appears to us that in the case of bodies like SCERT, the court cannot ignore the financial implications of implementing the directions that it is called upon to issue. The object of SCERT is laudable and it has to coordinate and promote education in the State. Its resources are limited and the main income is by way of grant from the State Government. When SCERT pleads that it cannot spend the whole of the grant or a major portion of the grant in paying salaries and emoluments to its employees and if it does so, that may tend to frustrate the very object with which the society was formed, it is an argument that has to be considered weighty by a court called upon to exercise jurisdiction under Article 226 of the Constitution of India. A court cannot issue a direction which would tend to frustrate the very object with which a society like SCERT is formed or a body like SCERT is created. After all, there may be a point of time in a welfare State where the right of the employees must be subservient to the right of the society. In the matter of education, surely, the interests of the society at large should prevail and issue of any direction that may endanger such interests must be done with extreme caution and only after careful deliberation.
### Response:
1
### Explanation:
Society registered under the Societies Registration Act or a company incorporated under the Companies Act, is by that reason alone excluded from the concept of State under Article 12 of the Constitution. In the case of SCERT, in addition to the operational autonomy of the Executive Committee, it could also amend its bye-laws subject to the provisions of the Delhi Societies Registration Act though with the previous concurrence of the Government of Delhi and that the proceedings of the Council are to be made available by the Secretary for inspection of the Registrar of Societies as per the provisions of the Societies Registration Act. The records and proceedings of the Council have also to be made available for inspection by the Registrar of Societies. In the case of dissolution of SCERT, the liabilities and assets are to be taken over at book value by the Government of Delhi which had to appoint a liquidator for completing the dissolution of the Body. The creditors loans and other liabilities of SCERT shall have preference and bear a first charge on the assets of the Council at the time of dissolution. This is not an unconditional vesting of the assets on dissolution with the Government. It is also provided that the provisions of the Societies Registration Act, 1860 had to be complied with in the matter of filing list of office-bearers every year with the Registrar and the carrying out of the amendments in accordance with the procedure laid down in the Act of 1860 and the dissolution being in terms of Sections 13 and 14 of the Societies Registration Act, 1860 and making all the provisions of the Societies Registration Act applicable to the Society. These provisions, in our view, indicate that SCERT is subservient to the provisions of the Societies Registration Act rather than to the State Government and that the intention was to keep SCERT as an independent body and the role of the State Government cannot be compared to that of the Central Government in the case of Council of Scientific and Industrial Research14. As we understand it, even going by paragraph 40 of the judgment in Pradeep Kumar Biswas (supra), which we have quoted above, we have to consider the cumulative effect of all the facts available in the case. So considered, we are inclined to hold that SCERT is not a State or other authority within the meaning of Article 12 of the Constitution of India. As we see it, the High Court has not independently discussed the relevant rules governing the functioning and administration of SCERT. It has proceeded on the basis that in the face of Pradeep Kumar Biswas (supra) decision, the decision in Chander Mohan Khanna (supra) must be taken to be overruled and no further discussion of the question is necessary. But, in our view, even going by Pradeep Kumar Biswas (supra), each case has to be considered with reference to the facts available for determining whether the body concerned is a State or other authority within the meaning of Article 12 of the Constitution of India. So considered, we find that the Government does not have deep and pervasive control over the working of SCERT. It does not have financial control in the sense that once the finances are made available to it, the administration of those finances is left to SCERT and there is no further governmental control. In this situation, we accept the submission on behalf of the appellants and hold that SCERT is not a State or other authority within the meaning of Article 12 of the Constitution of India. After all, the very formation of an independent society under the Societies Registration Act would also suggest that the intention was not to make the body a mere appendage of the State. We reverse the finding of the High Court on this aspect15. Once we hold that SCERT is not a State or other authority within the meaning of Article 12 of the Constitution of India, we do not find ourselves persuaded to issue any such direction as sought for by the writ petitioners (the respondents herein). In fact, it becomes unnecessary to go into the question of validity of the amendment of Regulation 67, the effect of the uniform non implementation of Regulation 67 as it stood earlier, and the effect of the absence of a challenge in the writ petition to the amendment to the Regulation itself. It is also not necessary to go into the question whether SCERT should seek the permission of the Government for incurring additional expenditure in terms of service benefits to its employees16. It appears to us that in the case of bodies like SCERT, the court cannot ignore the financial implications of implementing the directions that it is called upon to issue. The object of SCERT is laudable and it has to coordinate and promote education in the State. Its resources are limited and the main income is by way of grant from the State Government. When SCERT pleads that it cannot spend the whole of the grant or a major portion of the grant in paying salaries and emoluments to its employees and if it does so, that may tend to frustrate the very object with which the society was formed, it is an argument that has to be considered weighty by a court called upon to exercise jurisdiction under Article 226 of the Constitution of India. A court cannot issue a direction which would tend to frustrate the very object with which a society like SCERT is formed or a body like SCERT is created. After all, there may be a point of time in a welfare State where the right of the employees must be subservient to the right of the society. In the matter of education, surely, the interests of the society at large should prevail and issue of any direction that may endanger such interests must be done with extreme caution and only after careful deliberation
|
Employees State Insurance Corporation Vs. G. N. Mathur | of this Chapter, until further notice cancelling his nomination is received by the Inspector or unitil he (ceases to be a director ). The plain reading of sub-section (2) makes it clear that the Company may nominate a director to be the occupier of the factory for the purpose of Chapter X and such nominee shall be deemed to be the occupier of the factory for the purpose of Chapter X only.( 5 ) MR. Mehta submitted that respondent No. 1 was nominated as a Technical Director under sub-section (2) of section 100 of the Factories Act for the period commencing from May 1980 and ending with October 31, 1983. The learned Counsel urged that once respondent No. 1 was nominated as an occupier then respondent No. 1 becomes principal employer as defined under section 2 (17) (i) of the Act and is liable to deposit employers contribution under section 40 (1) of the Act. Mr. Talsania, learned Counsel appearing on behalf of respondent No. 1, on the other hand, submitted that respondent No. 1 was nominated as occupier under sub-section (2) of section 100 of the Factories Act and such nomination was only for the purpose of Chapter X of the Factories Act and such nominee cannot be treated as an occupier because respondent No. 1 is not established to be a person who has ultimate control over the affairs of the factory as required under section 2 (n) of the Factories Act. In other words, the submission is that respondent No. 1 is not occupier under section 2 (n) of the Factories Act but was only deemed to be an occupier for the purpose of Chapter X on nomination under sub-section (2) of section 100 of the Factories Act. Mr. Talsania also referred to the fact that the Corporation in the proceedings instituted by the directors to challenge service of notice for payment of employers contribution, has stated in affidavit that respondent No. 1 was not empowered to deal with financial matters. The learned Counsel urged that in these circumstances, respondent No. 1 cannot be held to be a principal employer under section 2 (17) (i) of the Act and consequently declaration of the Employees State Insurance Court cannot be faulted. In our judgment, the contention urged on behalf of respondent No. 1 deserves acceptance. The plain reading of sub-section (2) of section 100 of the Factories Act makes it clear that the person nominated shall be deemed to be an occupier for the purpose of Chapter X only and this Chapter deals with the subject of penalties and procedure. In other words, a person nominated under sub-section (2) would be required to face prosecution and punishment in respect of any contravention of the provisions of the Factories Act or rules framed thereunder. Such nomination which treats the nominee as a deemed occupier and only for Chapter X can, by no stretch of imagination, be extended beyond the limited purpose for which the nomination was made. The person nominated as an occupier under sub-section (2) of section 100 cannot be treated as occupier under section 2 (n) of the Factories Act, unless such nominee has ultimate control over the affairs of the factory. It is possible that a person having ultimate control over the affairs of the factory may be nominated under sub-section (2) of section 100 but it is not necessary that the nominee under sub-section (2) must necessarily have the ultimate control over the affairs of the factory. Once this aspect is clear then it is obvious that respondent No. 1 who was nominated under sub-section (2) of section 100 cannot be treated as an occupier unless it is established by the Corporation that respondent No. 1 had ultimate control over the affairs of the factory. Mr. Mehta found it extremely difficult to contend that respondent No. 1 had ultimate control over the affairs of Elphinstone Spinning and Weaving Mills. The learned Counsel conceded that respondent No. 1 was not empowered to deal with the financial matters and nothing was produced before the Employees State Insurance Court to indicate that respondent No. 1 had ultimate control over the affairs of the Mills.( 6 ) THE expression `ultimate control connotes that the person must have right to take policy decision in respect of running of the Mills. Respondent No. 1 was an employee who was merely designated as Technical Director, obviously for the purpose of nomination under sub-section (2) of section 100 and consequently can never be considered as an occupier under section 2 (n) of the Factories Act and, therefore, was not `principal employer as contemplated under section 2 (17) (i) of the Act. It also cannot be overlooked that notice served upon respondent No. 1 demands employers contribution for the period commencing from January 1977 and ending with September 1983 and in any event, respondent No. 1 was not even a Technical Director for the entire period. Respondent No. 1 was Technical Director from May 1980 to October 31, 1983. The Employees State Insurance Court rightly pointed out the Corporations claim in the affidavit filed in petitions filed by Directors in this Court that Ashokkumar Jalan, Director of the Company was in over-all charge of the affairs of the Company and not respondent No. 1. The assertion of the Corporation clearly establishes that respondent No. 1 was not occupier under section 2 (n) of the Factories Act and consequently not the principal employer under section 2 (17) (i) of the Act. A faint effort was made by Mr. Mehta to suggest that respondent No. 1 can be treated as principal employer under section 2 (17) (iii) of the Act but the submission is misconceived as the Corporation failed to produce any material to establish that respondent No. 1 was responsible for supervision and control over the establishment. In our judgment, the declaration given by the Employees State Insurance Court does not suffer from any infirmity and the learned Judge was right in dismissing the petition. | 0[ds]In our judgment, the contention urged on behalf of respondent No. 1 deserves acceptance. The plain reading of(2) of section 100 of the Factories Act makes it clear that the person nominated shall be deemed to be an occupier for the purpose of Chapter X only and this Chapter deals with the subject of penalties and procedure. In other words, a person nominated under(2) would be required to face prosecution and punishment in respect of any contravention of the provisions of the Factories Act or rules framed thereunder. Such nomination which treats the nominee as a deemed occupier and only for Chapter X can, by no stretch of imagination, be extended beyond the limited purpose for which the nomination was made. The person nominated as an occupier under(2) of section 100 cannot be treated as occupier under section 2 (n) of the Factories Act, unless such nominee has ultimate control over the affairs of the factory. It is possible that a person having ultimate control over the affairs of the factory may be nominated under(2) of section 100 but it is not necessary that the nominee under(2) must necessarily have the ultimate control over the affairs of the factory. Once this aspect is clear then it is obvious that respondent No. 1 who was nominated under(2) of section 100 cannot be treated as an occupier unless it is established by the Corporation that respondent No. 1 had ultimate control over the affairs of the6 ) THE expression `ultimate control connotes that the person must have right to take policy decision in respect of running of the Mills. Respondent No. 1 was an employee who was merely designated as Technical Director, obviously for the purpose of nomination under(2) of section 100 and consequently can never be considered as an occupier under section 2 (n) of the Factories Act and, therefore, was not `principal employer as contemplated under section 2 (17) (i) of the Act. It also cannot be overlooked that notice served upon respondent No. 1 demands employers contribution for the period commencing from January 1977 and ending with September 1983 and in any event, respondent No. 1 was not even a Technical Director for the entire period. Respondent No. 1 was Technical Director from May 1980 to October 31, 1983. The Employees State Insurance Court rightly pointed out the Corporations claim in the affidavit filed in petitions filed by Directors in this Court that Ashokkumar Jalan, Director of the Company was incharge of the affairs of the Company and not respondent No. 1. The assertion of the Corporation clearly establishes that respondent No. 1 was not occupier under section 2 (n) of the Factories Act and consequently not the principal employer under section 2 (17) (i) of the Act. A faint effort was made by Mr. Mehta to suggest that respondent No. 1 can be treated as principal employer under section 2 (17) (iii) of the Act but the submission is misconceived as the Corporation failed to produce any material to establish that respondent No. 1 was responsible for supervision and control over the establishment. In our judgment, the declaration given by the Employees State Insurance Court does not suffer from any infirmity and the learned Judge was right in dismissing the petition. | 0 | 2,564 | 628 | ### 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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of this Chapter, until further notice cancelling his nomination is received by the Inspector or unitil he (ceases to be a director ). The plain reading of sub-section (2) makes it clear that the Company may nominate a director to be the occupier of the factory for the purpose of Chapter X and such nominee shall be deemed to be the occupier of the factory for the purpose of Chapter X only.( 5 ) MR. Mehta submitted that respondent No. 1 was nominated as a Technical Director under sub-section (2) of section 100 of the Factories Act for the period commencing from May 1980 and ending with October 31, 1983. The learned Counsel urged that once respondent No. 1 was nominated as an occupier then respondent No. 1 becomes principal employer as defined under section 2 (17) (i) of the Act and is liable to deposit employers contribution under section 40 (1) of the Act. Mr. Talsania, learned Counsel appearing on behalf of respondent No. 1, on the other hand, submitted that respondent No. 1 was nominated as occupier under sub-section (2) of section 100 of the Factories Act and such nomination was only for the purpose of Chapter X of the Factories Act and such nominee cannot be treated as an occupier because respondent No. 1 is not established to be a person who has ultimate control over the affairs of the factory as required under section 2 (n) of the Factories Act. In other words, the submission is that respondent No. 1 is not occupier under section 2 (n) of the Factories Act but was only deemed to be an occupier for the purpose of Chapter X on nomination under sub-section (2) of section 100 of the Factories Act. Mr. Talsania also referred to the fact that the Corporation in the proceedings instituted by the directors to challenge service of notice for payment of employers contribution, has stated in affidavit that respondent No. 1 was not empowered to deal with financial matters. The learned Counsel urged that in these circumstances, respondent No. 1 cannot be held to be a principal employer under section 2 (17) (i) of the Act and consequently declaration of the Employees State Insurance Court cannot be faulted. In our judgment, the contention urged on behalf of respondent No. 1 deserves acceptance. The plain reading of sub-section (2) of section 100 of the Factories Act makes it clear that the person nominated shall be deemed to be an occupier for the purpose of Chapter X only and this Chapter deals with the subject of penalties and procedure. In other words, a person nominated under sub-section (2) would be required to face prosecution and punishment in respect of any contravention of the provisions of the Factories Act or rules framed thereunder. Such nomination which treats the nominee as a deemed occupier and only for Chapter X can, by no stretch of imagination, be extended beyond the limited purpose for which the nomination was made. The person nominated as an occupier under sub-section (2) of section 100 cannot be treated as occupier under section 2 (n) of the Factories Act, unless such nominee has ultimate control over the affairs of the factory. It is possible that a person having ultimate control over the affairs of the factory may be nominated under sub-section (2) of section 100 but it is not necessary that the nominee under sub-section (2) must necessarily have the ultimate control over the affairs of the factory. Once this aspect is clear then it is obvious that respondent No. 1 who was nominated under sub-section (2) of section 100 cannot be treated as an occupier unless it is established by the Corporation that respondent No. 1 had ultimate control over the affairs of the factory. Mr. Mehta found it extremely difficult to contend that respondent No. 1 had ultimate control over the affairs of Elphinstone Spinning and Weaving Mills. The learned Counsel conceded that respondent No. 1 was not empowered to deal with the financial matters and nothing was produced before the Employees State Insurance Court to indicate that respondent No. 1 had ultimate control over the affairs of the Mills.( 6 ) THE expression `ultimate control connotes that the person must have right to take policy decision in respect of running of the Mills. Respondent No. 1 was an employee who was merely designated as Technical Director, obviously for the purpose of nomination under sub-section (2) of section 100 and consequently can never be considered as an occupier under section 2 (n) of the Factories Act and, therefore, was not `principal employer as contemplated under section 2 (17) (i) of the Act. It also cannot be overlooked that notice served upon respondent No. 1 demands employers contribution for the period commencing from January 1977 and ending with September 1983 and in any event, respondent No. 1 was not even a Technical Director for the entire period. Respondent No. 1 was Technical Director from May 1980 to October 31, 1983. The Employees State Insurance Court rightly pointed out the Corporations claim in the affidavit filed in petitions filed by Directors in this Court that Ashokkumar Jalan, Director of the Company was in over-all charge of the affairs of the Company and not respondent No. 1. The assertion of the Corporation clearly establishes that respondent No. 1 was not occupier under section 2 (n) of the Factories Act and consequently not the principal employer under section 2 (17) (i) of the Act. A faint effort was made by Mr. Mehta to suggest that respondent No. 1 can be treated as principal employer under section 2 (17) (iii) of the Act but the submission is misconceived as the Corporation failed to produce any material to establish that respondent No. 1 was responsible for supervision and control over the establishment. In our judgment, the declaration given by the Employees State Insurance Court does not suffer from any infirmity and the learned Judge was right in dismissing the petition.
### Response:
0
### Explanation:
In our judgment, the contention urged on behalf of respondent No. 1 deserves acceptance. The plain reading of(2) of section 100 of the Factories Act makes it clear that the person nominated shall be deemed to be an occupier for the purpose of Chapter X only and this Chapter deals with the subject of penalties and procedure. In other words, a person nominated under(2) would be required to face prosecution and punishment in respect of any contravention of the provisions of the Factories Act or rules framed thereunder. Such nomination which treats the nominee as a deemed occupier and only for Chapter X can, by no stretch of imagination, be extended beyond the limited purpose for which the nomination was made. The person nominated as an occupier under(2) of section 100 cannot be treated as occupier under section 2 (n) of the Factories Act, unless such nominee has ultimate control over the affairs of the factory. It is possible that a person having ultimate control over the affairs of the factory may be nominated under(2) of section 100 but it is not necessary that the nominee under(2) must necessarily have the ultimate control over the affairs of the factory. Once this aspect is clear then it is obvious that respondent No. 1 who was nominated under(2) of section 100 cannot be treated as an occupier unless it is established by the Corporation that respondent No. 1 had ultimate control over the affairs of the6 ) THE expression `ultimate control connotes that the person must have right to take policy decision in respect of running of the Mills. Respondent No. 1 was an employee who was merely designated as Technical Director, obviously for the purpose of nomination under(2) of section 100 and consequently can never be considered as an occupier under section 2 (n) of the Factories Act and, therefore, was not `principal employer as contemplated under section 2 (17) (i) of the Act. It also cannot be overlooked that notice served upon respondent No. 1 demands employers contribution for the period commencing from January 1977 and ending with September 1983 and in any event, respondent No. 1 was not even a Technical Director for the entire period. Respondent No. 1 was Technical Director from May 1980 to October 31, 1983. The Employees State Insurance Court rightly pointed out the Corporations claim in the affidavit filed in petitions filed by Directors in this Court that Ashokkumar Jalan, Director of the Company was incharge of the affairs of the Company and not respondent No. 1. The assertion of the Corporation clearly establishes that respondent No. 1 was not occupier under section 2 (n) of the Factories Act and consequently not the principal employer under section 2 (17) (i) of the Act. A faint effort was made by Mr. Mehta to suggest that respondent No. 1 can be treated as principal employer under section 2 (17) (iii) of the Act but the submission is misconceived as the Corporation failed to produce any material to establish that respondent No. 1 was responsible for supervision and control over the establishment. In our judgment, the declaration given by the Employees State Insurance Court does not suffer from any infirmity and the learned Judge was right in dismissing the petition.
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SHILABEN ASHWINKUMAR RANA Vs. BHAVIN K. SHAH AND ANOTHER | the appellant submits that the child who is now 12 years old, continues to remain in a vegetative state. The amount which has been awarded by the NCDRC, it has been urged, is inadequate to meet the requirement of nursing care. Learned counsel submitted that the child continues to survive, but in a condition which is tragic. Given the requirements of qualified care and help, an enhancement is sought. 5. Learned counsel appearing on behalf of the respondents submitted that under Section 24 of the Consumer Protection Act, 1986, orders of the District Forum, the State Commission or the National Commission are final if no appeal has been preferred. In the present case, it was urged that the appeal was filed by the treating doctors against the order of the District Forum. Hence it was urged that in law, the appellant must be treated as having accepted the finality of the order passed by the District Forum. Learned counsel submitted that the appeal before the NCDRC was filed since the SCDRC had deleted the direction for payment of interest and for costs. Hence, it has been submitted that only that part of the order of the SCDRC which took away a portion of the relief which was granted by the District Forum could be the subject for consideration. 6. There is a concurrent finding in the present case of medical negligence. For the purposes of the present appeal, it would be appropriate to advert to the counter affidavit which has been filed by the first respondent. It vividly indicates, what even according to the respondent, has transpired : 7. ......The decision to perform the surgery was taken as the child was suffering from phimosis (tightening of the foreskin of the penis). The operation was successfully completed in approximately 15 minutes. The surgery was completed and the child came out of anesthesia/unconsciousness but was sleepy when he was shifted to a nearby ward where h was being monitored. After some time, the doctors were called because the child had respiratory trouble. They rushed to the child and found that the breathing passage was blocked due to spontaneous vomiting and aspiration of the vomit material into the respiratory passages. Such aspiration of vomitus, along with laryngospasm (sudden constriction of the larynx) is a common and known complication after surgery/ anesthesia. Medical literature shows that in a large prospective study of 1,36,929 patients, the overall incidence of laryngospasm was 8.7 per 1000 patients. On the other hand, this rises to 96 per 1000 (almost one in 10) in case of children with recent respiratory infection. That is why it is advised in medical literature to avoid giving anesthesia to children upto 6 weeks after respiratory infection. It is extremely pertinent to note that before giving anesthesia, the respondent anesthetist had carried out pre-anesthetic check-up and had asked the parents whether the child had any recent infection and they answered in the negative. However, during cross examination before the Ld. District Forum, it was revealed that the patient had URTI (Upper Respiratory Tract Infection) within one week preceding operation. Thereafter, on 06.03.2009, the patient was discharged from Sterling Hospital Ahmedabad. The diagnosis as per the discharge summary was - Hypoxic ischaemic encephalopathy following cardio-respiratory arrest after circumcision with aspiration pneumonia. On 07.11.2009, the child was examined by Dr. Sudhir V. Shah, Neurologist. He wrote in his notes that the child identifies parents. On 11.08.2010, a disability certificate issued to the child stated that : He was a case of severe mental retardation. This shows that patient was never in state of coma or vegetative state. In fact this is a case where the childs breathing was handicapped by aspiration of vomiting leading to sudden laryngospasm as well as blockage of the respiratory passages by the vomited material. This resulted in brain hypoxia and mental retardation. 7. The above extract, taken from the version of the first respondent himself, clearly establishes a case of medical negligence. The aspiration of vomit material took place soon after the surgery. This was a complication which was known to the surgeon and the anesthetist. Failure to take adequate precautions establishes in our view, a clear case of medical negligence. That apart, the affidavit is a clear admission of the fact that the child has suffered severe mental retardation and brain hypoxic ischaemic encephalopathy. 8. The tragic condition of the child and of the parents, who have to look after him, needs redressal by this Court. We are inclined to do so in the exercise of our jurisdiction under Article 142 of the Constitution for the purposes of doing complete justice. In Nizams Institute of Medical Sciences v. Prasanth S. Dhananka, (2009) 6 SCC 1 , a three Judge Bench of this Court emphasized that cases involving disability are in many respects even more tragic than cases of death, particularly where the disability is of a nature involving a life long condition of despair and helplessness. This Court observed : 90. At the same time we often find that a person injured in an accident leaves his family in greater distress, vis- `-vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity. 9. While some element of redress has been provided to the appellant by the enhancement of compensation by the NCDRC, the enhancement, in our view, does not take into account the requirements of nursing care, medical help and other attendant requirements of the child for the future. | 1[ds]6. There is a concurrent finding in the present case of medical negligence. For the purposes of the present appeal, it would be appropriate to advert to the counter affidavit which has been filed by the first respondent. It vividly indicates, what even according to the respondent, has transpired :7. ......The decision to perform the surgery was taken as the child was suffering from phimosis (tightening of the foreskin of the penis). The operation was successfully completed in approximately 15 minutes. The surgery was completed and the child came out of anesthesia/unconsciousness but was sleepy when he was shifted to a nearby ward where h was being monitored. After some time, the doctors were called because the child had respiratory trouble. They rushed to the child and found that the breathing passage was blocked due to spontaneous vomiting and aspiration of the vomit material into the respiratory passages. Such aspiration of vomitus, along with laryngospasm (sudden constriction of the larynx) is a common and known complication after surgery/ anesthesia. Medical literature shows that in a large prospective study of 1,36,929 patients, the overall incidence of laryngospasm was 8.7 per 1000 patients. On the other hand, this rises to 96 per 1000 (almost one in 10) in case of children with recent respiratory infection. That is why it is advised in medical literature to avoid giving anesthesia to children upto 6 weeks after respiratory infection. It is extremely pertinent to note that before giving anesthesia, the respondent anesthetist had carried out pre-anesthetic check-up and had asked the parents whether the child had any recent infection and they answered in the negative. However, during cross examination before the Ld. District Forum, it was revealed that the patient had URTI (Upper Respiratory Tract Infection) within one week preceding operation. Thereafter, on 06.03.2009, the patient was discharged from Sterling Hospital Ahmedabad. The diagnosis as per the discharge summary was - Hypoxic ischaemic encephalopathy following cardio-respiratory arrest after circumcision with aspiration pneumonia. On 07.11.2009, the child was examined by Dr. Sudhir V. Shah, Neurologist. He wrote in his notes that the child identifies parents. On 11.08.2010, a disability certificate issued to the child stated that : He was a case of severe mental retardation. This shows that patient was never in state of coma or vegetative state. In fact this is a case where the childs breathing was handicapped by aspiration of vomiting leading to sudden laryngospasm as well as blockage of the respiratory passages by the vomited material. This resulted in brain hypoxia and mental retardation.7. The above extract, taken from the version of the first respondent himself, clearly establishes a case of medical negligence. The aspiration of vomit material took place soon after the surgery. This was a complication which was known to the surgeon and the anesthetist. Failure to take adequate precautions establishes in our view, a clear case of medical negligence. That apart, the affidavit is a clear admission of the fact that the child has suffered severe mental retardation and brain hypoxic ischaemic encephalopathy.8. The tragic condition of the child and of the parents, who have to look after him, needs redressal by this Court. We are inclined to do so in the exercise of our jurisdiction under Article 142 of the Constitution for the purposes of doing complete justice. In Nizams Institute of Medical Sciences v. Prasanth S. Dhananka, (2009) 6 SCC 1 , a three Judge Bench of this Court emphasized that cases involving disability are in many respects even more tragic than cases of death, particularly where the disability is of a nature involving a life long condition of despair and helplessness. This Court observed :90. At the same time we often find that a person injured in an accident leaves his family in greater distress, vis- `-vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity.9. While some element of redress has been provided to the appellant by the enhancement of compensation by the NCDRC, the enhancement, in our view, does not take into account the requirements of nursing care, medical help and other attendant requirements of the child for the future. | 1 | 1,573 | 869 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
### Input:
the appellant submits that the child who is now 12 years old, continues to remain in a vegetative state. The amount which has been awarded by the NCDRC, it has been urged, is inadequate to meet the requirement of nursing care. Learned counsel submitted that the child continues to survive, but in a condition which is tragic. Given the requirements of qualified care and help, an enhancement is sought. 5. Learned counsel appearing on behalf of the respondents submitted that under Section 24 of the Consumer Protection Act, 1986, orders of the District Forum, the State Commission or the National Commission are final if no appeal has been preferred. In the present case, it was urged that the appeal was filed by the treating doctors against the order of the District Forum. Hence it was urged that in law, the appellant must be treated as having accepted the finality of the order passed by the District Forum. Learned counsel submitted that the appeal before the NCDRC was filed since the SCDRC had deleted the direction for payment of interest and for costs. Hence, it has been submitted that only that part of the order of the SCDRC which took away a portion of the relief which was granted by the District Forum could be the subject for consideration. 6. There is a concurrent finding in the present case of medical negligence. For the purposes of the present appeal, it would be appropriate to advert to the counter affidavit which has been filed by the first respondent. It vividly indicates, what even according to the respondent, has transpired : 7. ......The decision to perform the surgery was taken as the child was suffering from phimosis (tightening of the foreskin of the penis). The operation was successfully completed in approximately 15 minutes. The surgery was completed and the child came out of anesthesia/unconsciousness but was sleepy when he was shifted to a nearby ward where h was being monitored. After some time, the doctors were called because the child had respiratory trouble. They rushed to the child and found that the breathing passage was blocked due to spontaneous vomiting and aspiration of the vomit material into the respiratory passages. Such aspiration of vomitus, along with laryngospasm (sudden constriction of the larynx) is a common and known complication after surgery/ anesthesia. Medical literature shows that in a large prospective study of 1,36,929 patients, the overall incidence of laryngospasm was 8.7 per 1000 patients. On the other hand, this rises to 96 per 1000 (almost one in 10) in case of children with recent respiratory infection. That is why it is advised in medical literature to avoid giving anesthesia to children upto 6 weeks after respiratory infection. It is extremely pertinent to note that before giving anesthesia, the respondent anesthetist had carried out pre-anesthetic check-up and had asked the parents whether the child had any recent infection and they answered in the negative. However, during cross examination before the Ld. District Forum, it was revealed that the patient had URTI (Upper Respiratory Tract Infection) within one week preceding operation. Thereafter, on 06.03.2009, the patient was discharged from Sterling Hospital Ahmedabad. The diagnosis as per the discharge summary was - Hypoxic ischaemic encephalopathy following cardio-respiratory arrest after circumcision with aspiration pneumonia. On 07.11.2009, the child was examined by Dr. Sudhir V. Shah, Neurologist. He wrote in his notes that the child identifies parents. On 11.08.2010, a disability certificate issued to the child stated that : He was a case of severe mental retardation. This shows that patient was never in state of coma or vegetative state. In fact this is a case where the childs breathing was handicapped by aspiration of vomiting leading to sudden laryngospasm as well as blockage of the respiratory passages by the vomited material. This resulted in brain hypoxia and mental retardation. 7. The above extract, taken from the version of the first respondent himself, clearly establishes a case of medical negligence. The aspiration of vomit material took place soon after the surgery. This was a complication which was known to the surgeon and the anesthetist. Failure to take adequate precautions establishes in our view, a clear case of medical negligence. That apart, the affidavit is a clear admission of the fact that the child has suffered severe mental retardation and brain hypoxic ischaemic encephalopathy. 8. The tragic condition of the child and of the parents, who have to look after him, needs redressal by this Court. We are inclined to do so in the exercise of our jurisdiction under Article 142 of the Constitution for the purposes of doing complete justice. In Nizams Institute of Medical Sciences v. Prasanth S. Dhananka, (2009) 6 SCC 1 , a three Judge Bench of this Court emphasized that cases involving disability are in many respects even more tragic than cases of death, particularly where the disability is of a nature involving a life long condition of despair and helplessness. This Court observed : 90. At the same time we often find that a person injured in an accident leaves his family in greater distress, vis- `-vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity. 9. While some element of redress has been provided to the appellant by the enhancement of compensation by the NCDRC, the enhancement, in our view, does not take into account the requirements of nursing care, medical help and other attendant requirements of the child for the future.
### Response:
1
### Explanation:
6. There is a concurrent finding in the present case of medical negligence. For the purposes of the present appeal, it would be appropriate to advert to the counter affidavit which has been filed by the first respondent. It vividly indicates, what even according to the respondent, has transpired :7. ......The decision to perform the surgery was taken as the child was suffering from phimosis (tightening of the foreskin of the penis). The operation was successfully completed in approximately 15 minutes. The surgery was completed and the child came out of anesthesia/unconsciousness but was sleepy when he was shifted to a nearby ward where h was being monitored. After some time, the doctors were called because the child had respiratory trouble. They rushed to the child and found that the breathing passage was blocked due to spontaneous vomiting and aspiration of the vomit material into the respiratory passages. Such aspiration of vomitus, along with laryngospasm (sudden constriction of the larynx) is a common and known complication after surgery/ anesthesia. Medical literature shows that in a large prospective study of 1,36,929 patients, the overall incidence of laryngospasm was 8.7 per 1000 patients. On the other hand, this rises to 96 per 1000 (almost one in 10) in case of children with recent respiratory infection. That is why it is advised in medical literature to avoid giving anesthesia to children upto 6 weeks after respiratory infection. It is extremely pertinent to note that before giving anesthesia, the respondent anesthetist had carried out pre-anesthetic check-up and had asked the parents whether the child had any recent infection and they answered in the negative. However, during cross examination before the Ld. District Forum, it was revealed that the patient had URTI (Upper Respiratory Tract Infection) within one week preceding operation. Thereafter, on 06.03.2009, the patient was discharged from Sterling Hospital Ahmedabad. The diagnosis as per the discharge summary was - Hypoxic ischaemic encephalopathy following cardio-respiratory arrest after circumcision with aspiration pneumonia. On 07.11.2009, the child was examined by Dr. Sudhir V. Shah, Neurologist. He wrote in his notes that the child identifies parents. On 11.08.2010, a disability certificate issued to the child stated that : He was a case of severe mental retardation. This shows that patient was never in state of coma or vegetative state. In fact this is a case where the childs breathing was handicapped by aspiration of vomiting leading to sudden laryngospasm as well as blockage of the respiratory passages by the vomited material. This resulted in brain hypoxia and mental retardation.7. The above extract, taken from the version of the first respondent himself, clearly establishes a case of medical negligence. The aspiration of vomit material took place soon after the surgery. This was a complication which was known to the surgeon and the anesthetist. Failure to take adequate precautions establishes in our view, a clear case of medical negligence. That apart, the affidavit is a clear admission of the fact that the child has suffered severe mental retardation and brain hypoxic ischaemic encephalopathy.8. The tragic condition of the child and of the parents, who have to look after him, needs redressal by this Court. We are inclined to do so in the exercise of our jurisdiction under Article 142 of the Constitution for the purposes of doing complete justice. In Nizams Institute of Medical Sciences v. Prasanth S. Dhananka, (2009) 6 SCC 1 , a three Judge Bench of this Court emphasized that cases involving disability are in many respects even more tragic than cases of death, particularly where the disability is of a nature involving a life long condition of despair and helplessness. This Court observed :90. At the same time we often find that a person injured in an accident leaves his family in greater distress, vis- `-vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity.9. While some element of redress has been provided to the appellant by the enhancement of compensation by the NCDRC, the enhancement, in our view, does not take into account the requirements of nursing care, medical help and other attendant requirements of the child for the future.
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M/S. Anwar Khan Mehboob & Co Vs. State Of Madhya Pradesh And Others | already set out. The operative provision is to be found in the first sub-section which says that after a notification is issued under sub-section (3) of S. 1 (which extends the Adhiniyam to any area) no person shall purchase or transport tendu leaves except the State Government or officer authorised in writing in this behalf or an agent of that Government in respect of any unit in which the leaves are grown. The expression "no person" is wide enough to exclude any person whatsoever unless the rights of any party have been expressly saved. Sub-section (1) intended to be understood with the aid of two Explanations, each providing for a different subject-matter. By the first Explanation purchase of tendu leaves from any of the three persons mentioned in sub-section (1) is not to be deemed to be a purchase in contravention of this Adhiniyam. Government or its officers and agents in this way become the sole sellers of tendu leaves, and the sub-section confers on the Government exclusively the monopoly of sale of tendu leaves from an area to which the Adhiniyam is extended. The second Explanation says that a person having no interest in a holding but who has acquired the right to collect tendu leaves grown on such holding shall be deemed to have purchased such leaves in contravention of the Adhiniyam. This Explanation states in the negative form that a person having an interest in the holding may himself collect the leaves but no person can obtain from the person having an interest in the holding, a right to collect tendu leaves form his holding. The right to collect tendu leaves from the areas to which the Adhiniyam extends belongs to the State Government, its officers and its agents or under the second Explanation to a person having interest in a holding. No purchase of tendu leaves, except from Government, its officers and agents, is legal by reason of the first sub-section read with the first Explanation. The second sub-section deals with transport. It allows a grower of tendu leaves to transport his leaves from any place within the unit wherein such leaves are grown to any other place in that unit, and tendu leaves purchased from the State Government or its officers or agents by any person for manufacture of bidis within the State or by any person for sale outside the State may be transported outside the unit. No other person can at all transport tendu leaves. The second sub-section has the effect of keeping the tendu leaves within" the unit until they have been purchased by or from Government. On purchase they can be transported either to a place within the State for the manufacture of bidis or exported outside the unit. Under the third subsection any person who desires to sell tendu leaves, may sell them to a Government officer or agent at any depot situated within his unit. By reason of these provisions growers of tendu leaves, other than Government, are compelled to sell them to Government, its officers and agents, at the various depots at the prices settled by the Advisory Committee under the Niyam. The Niyamavali lays down the procedure to be followed. Once all tendu leaves have come into the possession of Government purchase of tendu leaves must be from the Government and its officers and agents because only such purchase is not an offence under the Adhiniyam.17. The position of the petitioner firm is this : it does not seek to justify its acquisition of tendu leaves by reason of a purchase from Government. It says that it has already purchased the tendu leaves from the Raja by an agreement made with the Raja in 1948 and that that agreement is binding upon Government because of a decision of this Court. But the decision of this Court merely decided that there was nothing in the Abolition Act by which the agreement could be said to be affected. That decision had nothing to say about those rights of the petitioner firm, viewed in the light of the Adhiniyam. The Adhiniyam is challenged only on the ground that it cannot operate against the petitioner firm which holds a decree of this Court. The decree of this Court only said that Government must not interfere with the petitioner firm by reason of anything contained in the Abolition Act. To the Abolition Act must now be added the Adhiniyam and we must see what is the joint effect of the two Acts. The Abolition Act vested the forests and tendu plants in Government and they become the property of Government. This was decided a long time ago and there is no quarrel on this account. By the Adhiniyam Government gets the sole right to purchase tendu leaves from any area to which the Adhiniyam extends and no person can buy tendu leaves except from Government, its officers and agents. Government obtains the monopoly of trade in tendu leaves in those areas of the State to which the Adhiniyam applies. The purchase of tendu leaves must now be in according with the Adhiniyam. Since there is no right to property before the leaves are plucked, no such right can be said to be invaded by the Adhiniyam. It cannot be said either by reason of any of res judicata or on analogy that the petitioner firm is entitled to invoke Art. 32 of the Constitution when it possesses no right of property in the leaves. It has only a contract in its favour and that is not, a right of property.No doubt the Adhiniyam indirectly overreaches the decision of this Court but that, in any event, is open to the State Legislature provided it passes a valid law to that effect. The law is not challenged as invalid and it must therefore apply to the petitioner firm, as to any other person. The petitioner firm cannot take shelter of Explanation I till it buys leaves form Government under the Adhiniyam and the Niyamavali.18. | 0[ds]5. We shall analyse the provisions of this section later. For the present we must follow up the narrative of events. By notification the State of Madhya Pradesh, declared the areas to which the Adhiniyam extended and subdivided the area into units. The Imlai Estate, in respect of which the petitioner firm held its agreement, was divided upThe State Government then invited tenders for the areas including the three units but the remarks column showed that these units were leased by the Malguzar to the petitioner firm up to the year 1973. No tenders were received for units 5 and 11 but there was a tender for unit 3. On March 20, 1965 the Minister for Forests in a meeting, informed the representatives of the petitioner firm that their lease stood extinguished by reason of the Adhiniyam and that time was extended for submission of fresh tenders in respect of the units left out.On March 23, 1965 tenders made by two persons in respect of unit 3 (Baghraji) and unit 11 (Umaria) were accepted and the next day the petitioner firm was informed, by letter from the Divisional Forest Officer, Jabalpur Division, that the right to collect tendu leaves in all the 99 villages of Imlai Estate was abrogated by the State Government under the Adhiniyam. The present petition was then filed.We may begin by considering the correctness of the contention that the earlier decision operates as res judicata in this case. The history of the ruling in Chhotabhai Jethabhais case, 1953 SCR 476 : (AIR 1953 SC 108 ) isThat case has now no binding force as a precedent. In Shantabai v. State of Bombay, 1959 SCR 265 : (AIR 1958 SC 532 ) petitions similar to those in Chhotahai Jethabhais case met a different fate. Shantabai who claimed the benefit of Art. 19 (1) (f) and (g) had been given a right by her husband to take and appropriate all kinds of wood from his Zamindari forests. The document was unregistered. After the Abolition Act came into force the right was interfered with. A petition under Art. 32 of the Constitution was moved in this Court but it failed. Chhotabhai Jethabhais case, 1953 SCR 476 : (AIR 1953 SC 108 ) was cited in support of the petition but it was not followed. Many circumstances not noticed in Chhotabhai Jethabhais case, 1953 SCR 476 : (AIR 1953 SC 108 ) were pointed out. As they have been summarized once before in Mahadeo v. State of Bombay, 1959 Supp (2) SCR 339 at p. 343: (AIR 1959 SC 735 at p. 738) we may quote from that case. Speaking of the unregisteredwas therefore, laid down that the decision in Chhotabhai Jethabhais case, 1953 SCR 476 : (AIR 1958 SC 108), which treated the agreement as bare licences and yet considered that a fundamental right to property was conferred by them, "was apparently given per incuriam" and could not therefore be followed.In Chhotabhai Jethabhais case, 1953 SCR 476 : (AIR 1953 SC 108 ) reliance was placed on a passage from the judgment of the Judicial Committee in Mohanlal Hargovind v. Commr. of7 ITR 473 : (AIR 1949 PC 311 ) to find out the nature of the agreements. The Judicial Committee was discussing the matter to find out whether the amounts spent in buying tendu leaves, which were the raw materials for manufacture of bidis, became capital expenditure simply because crops of a number of years were presently purchased. So long as crops were purchased and no interest in anything else was obtained, it was held the payment was on revenue and not capital account. The observations were, therefore, made in a very different context. Similarly, reliance on a passage from Baden Powells book on the Land Systems of British India was not helpful because Baden Powell was merely discussing the division of proprietary rights between different layers created byNor was the reference to Benjamin on Sale quite happy because the author was referring to mediaeval law and had discussed the modern law on the succeeding pages.It was for this reason that in a succession of cases. Chhotabhai Jethabhais case, 1953 SCR 476 : (AIR 1953 SC 108 ) was not relied upon. That ruling must be held notis not claiming a right to property but to the continued acceptance of a contract.Mr. Pathak, however, argued that the earlier decision of this Court involved the assumption of the fundamental fact that petitioner firms right to property was invaded. He argued on the authority of Hoystead v. Commissioner of Taxation, 1926 AC 155, that such a fundamental fact cannot, in a fresh litigation be allowed to be ignored. He submitted that it was open to the Government to have demurred to the claim on the ground that no right of property was invaded, but it did not. This may be right but it does not solve our problem. If the Adhiniyam had not been passed and the rights recognised by this Court were again interfered with, it would have been impossible for Government to ask that Chhotabhai Jethabhais case, 1953 SCR 476 : (AIR 1953 SC 108 ) be recognised from the point of view whether a fundamental right to property was involved or not. The fresh litigation would in such a case have been on an identical or similar cause of action and because of the decision in favour of the petitioner firm Government would have been bound by the rule of res judicata. The situation today is not the same as existed in 1952. The cause of action then was based upon the invasion of the rights of the petitioner firm by and under the authority of the Abolition Act. Today the invasion is by and under the authority of the Adhiniyam and manifestly the two causes of action are not alike.It is worth mentioning that Hoysteadscase, 1926 AC 155was often before theHouse of Lords in Society of Medical Officers of Health v. Hope, 1960 AC551 but was not followed. It may also be mentioned that in the volume which contains Hoysteadscase, 1926 AC 155there is to be found another case of JudicialCommittee Broken Hill Proprietary Co. Ltd., v. Municipal Council of Broken Hill, 1926 AC94 which seems to be in conflict with Hoysteads case. It was argued before the House of Lords that Hoysteadscase, 1926 AC 155was wrongly decided. The House did not pronounce their opinion on this submission but noted the fact that there was this conflict. They did point out that a decision of the Judicial Committee was not binding on the House of Lords. Lord Radcliffe distinguished Hoysteadscase, 1926 AC 155and stated that it was useless to illuminate the only point which was before the House of Lords, namely the effect of a succeeding valuation list on a decision given with regard to an earlier valuation list. The same reason obtains here also. The earlier case of this Court is useless to illuminate the only point which arises before us, namely whether by the provisions of the Adhiniyam any right to property as such is being offended. On this question we cannot get any guidance from the earlier decision partly because it did not in express terms decide even on the facts existing in 1952 that right to property was in jeopardy and mainly because the effect of the new law upon the rights such as they are today must be worked out afresh. The cause of action is entirely distinct. For this reason we do not think that the earlier decision operates as res judicata, even if it might have been assumed in that case that a right to property was involved.We have explained above that the Divisional Bench did not refer to right to property although it is possible that it thought in terms of property in leaves, timber etc. On their being severed from earth as existing even before leaves, timber etc. were so severed. This was not the true position in law because the agreements then considered betokened a licence coupled with a grant but no right in any property movable or immovable of any kind. The petitioner firm like the others had a licence to go to the forests to pick and carry away tandu leaves but had no other right. The attention of the Divisional Bench was not directed to this difference.Such a decision cannot constitute a bar on the principle of res judicata when new circumstances have come to exist which require a reappraisal of the true legalis however, not correct to say that a decision may be evaded only by the use of these words or some such words. If a statuate creates new circumstances which render the earlier decision inapplicable, the effect must be to evade the earlier decision of the court. The earlier decision then cannot operate because the new statute alters the circumstances to which the old decision applied, and as the cause of action is different, the earlier decision ceases to play a part. The earlier decision of this Court does not play any part even indirectly as was suggested by Mr. Pathak.The core of the problem thus is : what is the effect of the Adhiniyam upon the rights of the petitioner firm under the agreement it had obtained from Raja? From this purpose, we have to go to the terms of S. 5 of the Adhiniyam already set out. The operative provision is to be found in the firstwhich says that after a notification is issued under(3) of S. 1 (which extends the Adhiniyam to any area) no person shall purchase or transport tendu leaves except the State Government or officer authorised in writing in this behalf or an agent of that Government in respect of any unit in which the leaves are grown. The expression "no person" is wide enough to exclude any person whatsoever unless the rights of any party have been expressly saved.(1) intended to be understood with the aid of two Explanations, each providing for a differentBy the first Explanation purchase of tendu leaves from any of the three persons mentioned in(1) is not to be deemed to be a purchase in contravention of this Adhiniyam. Government or its officers and agents in this way become the sole sellers of tendu leaves, and theconfers on the Government exclusively the monopoly of sale of tendu leaves from an area to which the Adhiniyam is extended. The second Explanation says that a person having no interest in a holding but who has acquired the right to collect tendu leaves grown on such holding shall be deemed to have purchased such leaves in contravention of the Adhiniyam. This Explanation states in the negative form that a person having an interest in the holding may himself collect the leaves but no person can obtain from the person having an interest in the holding, a right to collect tendu leaves form his holding. The right to collect tendu leaves from the areas to which the Adhiniyam extends belongs to the State Government, its officers and its agents or under the second Explanation to a person having interest in a holding. No purchase of tendu leaves, except from Government, its officers and agents, is legal by reason of the firstread with the first Explanation. The seconddeals with transport. It allows a grower of tendu leaves to transport his leaves from any place within the unit wherein such leaves are grown to any other place in that unit, and tendu leaves purchased from the State Government or its officers or agents by any person for manufacture of bidis within the State or by any person for sale outside the State may be transported outside the unit. No other person can at all transport tendu leaves. The secondhas the effect of keeping the tendu leaves within" the unit until they have been purchased by or from Government. On purchase they can be transported either to a place within the State for the manufacture of bidis or exported outside the unit. Under the third subsection any person who desires to sell tendu leaves, may sell them to a Government officer or agent at any depot situated within his unit. By reason of these provisions growers of tendu leaves, other than Government, are compelled to sell them to Government, its officers and agents, at the various depots at the prices settled by the Advisory Committee under the Niyam. The Niyamavali lays down the procedure to be followed. Once all tendu leaves have come into the possession of Government purchase of tendu leaves must be from the Government and its officers and agents because only such purchase is not an offence under the Adhiniyam.The position of the petitioner firm is this : it does not seek to justify its acquisition of tendu leaves by reason of a purchase from Government. It says that it has already purchased the tendu leaves from the Raja by an agreement made with the Raja in 1948 and that that agreement is binding upon Government because of a decision of this Court. But the decision of this Court merely decided that there was nothing in the Abolition Act by which the agreement could be said to be affected. That decision had nothing to say about those rights of the petitioner firm, viewed in the light of the Adhiniyam. The Adhiniyam is challenged only on the ground that it cannot operate against the petitioner firm which holds a decree of this Court. The decree of this Court only said that Government must not interfere with the petitioner firm by reason of anything contained in the Abolition Act. To the Abolition Act must now be added the Adhiniyam and we must see what is the joint effect of the two Acts. The Abolition Act vested the forests and tendu plants in Government and they become the property of Government. This was decided a long time ago and there is no quarrel on this account. By the Adhiniyam Government gets the sole right to purchase tendu leaves from any area to which the Adhiniyam extends and no person can buy tendu leaves except from Government, its officers and agents. Government obtains the monopoly of trade in tendu leaves in those areas of the State to which the Adhiniyam applies. The purchase of tendu leaves must now be in according with the Adhiniyam. Since there is no right to property before the leaves are plucked, no such right can be said to be invaded by the Adhiniyam. It cannot be said either by reason of any of res judicata or on analogy that the petitioner firm is entitled to invoke Art. 32 of the Constitution when it possesses no right of property in the leaves. It has only a contract in its favour and that is not, a right of property.No doubt the Adhiniyam indirectly overreaches the decision of this Court but that, in any event, is open to the State Legislature provided it passes a valid law to that effect. The law is not challenged as invalid and it must therefore apply to the petitioner firm, as to any other person. The petitioner firm cannot take shelter of Explanation I till it buys leaves form Government under the Adhiniyam and the Niyamavali. | 0 | 5,388 | 2,759 | ### Instruction:
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already set out. The operative provision is to be found in the first sub-section which says that after a notification is issued under sub-section (3) of S. 1 (which extends the Adhiniyam to any area) no person shall purchase or transport tendu leaves except the State Government or officer authorised in writing in this behalf or an agent of that Government in respect of any unit in which the leaves are grown. The expression "no person" is wide enough to exclude any person whatsoever unless the rights of any party have been expressly saved. Sub-section (1) intended to be understood with the aid of two Explanations, each providing for a different subject-matter. By the first Explanation purchase of tendu leaves from any of the three persons mentioned in sub-section (1) is not to be deemed to be a purchase in contravention of this Adhiniyam. Government or its officers and agents in this way become the sole sellers of tendu leaves, and the sub-section confers on the Government exclusively the monopoly of sale of tendu leaves from an area to which the Adhiniyam is extended. The second Explanation says that a person having no interest in a holding but who has acquired the right to collect tendu leaves grown on such holding shall be deemed to have purchased such leaves in contravention of the Adhiniyam. This Explanation states in the negative form that a person having an interest in the holding may himself collect the leaves but no person can obtain from the person having an interest in the holding, a right to collect tendu leaves form his holding. The right to collect tendu leaves from the areas to which the Adhiniyam extends belongs to the State Government, its officers and its agents or under the second Explanation to a person having interest in a holding. No purchase of tendu leaves, except from Government, its officers and agents, is legal by reason of the first sub-section read with the first Explanation. The second sub-section deals with transport. It allows a grower of tendu leaves to transport his leaves from any place within the unit wherein such leaves are grown to any other place in that unit, and tendu leaves purchased from the State Government or its officers or agents by any person for manufacture of bidis within the State or by any person for sale outside the State may be transported outside the unit. No other person can at all transport tendu leaves. The second sub-section has the effect of keeping the tendu leaves within" the unit until they have been purchased by or from Government. On purchase they can be transported either to a place within the State for the manufacture of bidis or exported outside the unit. Under the third subsection any person who desires to sell tendu leaves, may sell them to a Government officer or agent at any depot situated within his unit. By reason of these provisions growers of tendu leaves, other than Government, are compelled to sell them to Government, its officers and agents, at the various depots at the prices settled by the Advisory Committee under the Niyam. The Niyamavali lays down the procedure to be followed. Once all tendu leaves have come into the possession of Government purchase of tendu leaves must be from the Government and its officers and agents because only such purchase is not an offence under the Adhiniyam.17. The position of the petitioner firm is this : it does not seek to justify its acquisition of tendu leaves by reason of a purchase from Government. It says that it has already purchased the tendu leaves from the Raja by an agreement made with the Raja in 1948 and that that agreement is binding upon Government because of a decision of this Court. But the decision of this Court merely decided that there was nothing in the Abolition Act by which the agreement could be said to be affected. That decision had nothing to say about those rights of the petitioner firm, viewed in the light of the Adhiniyam. The Adhiniyam is challenged only on the ground that it cannot operate against the petitioner firm which holds a decree of this Court. The decree of this Court only said that Government must not interfere with the petitioner firm by reason of anything contained in the Abolition Act. To the Abolition Act must now be added the Adhiniyam and we must see what is the joint effect of the two Acts. The Abolition Act vested the forests and tendu plants in Government and they become the property of Government. This was decided a long time ago and there is no quarrel on this account. By the Adhiniyam Government gets the sole right to purchase tendu leaves from any area to which the Adhiniyam extends and no person can buy tendu leaves except from Government, its officers and agents. Government obtains the monopoly of trade in tendu leaves in those areas of the State to which the Adhiniyam applies. The purchase of tendu leaves must now be in according with the Adhiniyam. Since there is no right to property before the leaves are plucked, no such right can be said to be invaded by the Adhiniyam. It cannot be said either by reason of any of res judicata or on analogy that the petitioner firm is entitled to invoke Art. 32 of the Constitution when it possesses no right of property in the leaves. It has only a contract in its favour and that is not, a right of property.No doubt the Adhiniyam indirectly overreaches the decision of this Court but that, in any event, is open to the State Legislature provided it passes a valid law to that effect. The law is not challenged as invalid and it must therefore apply to the petitioner firm, as to any other person. The petitioner firm cannot take shelter of Explanation I till it buys leaves form Government under the Adhiniyam and the Niyamavali.18.
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obtained from Raja? From this purpose, we have to go to the terms of S. 5 of the Adhiniyam already set out. The operative provision is to be found in the firstwhich says that after a notification is issued under(3) of S. 1 (which extends the Adhiniyam to any area) no person shall purchase or transport tendu leaves except the State Government or officer authorised in writing in this behalf or an agent of that Government in respect of any unit in which the leaves are grown. The expression "no person" is wide enough to exclude any person whatsoever unless the rights of any party have been expressly saved.(1) intended to be understood with the aid of two Explanations, each providing for a differentBy the first Explanation purchase of tendu leaves from any of the three persons mentioned in(1) is not to be deemed to be a purchase in contravention of this Adhiniyam. Government or its officers and agents in this way become the sole sellers of tendu leaves, and theconfers on the Government exclusively the monopoly of sale of tendu leaves from an area to which the Adhiniyam is extended. The second Explanation says that a person having no interest in a holding but who has acquired the right to collect tendu leaves grown on such holding shall be deemed to have purchased such leaves in contravention of the Adhiniyam. This Explanation states in the negative form that a person having an interest in the holding may himself collect the leaves but no person can obtain from the person having an interest in the holding, a right to collect tendu leaves form his holding. The right to collect tendu leaves from the areas to which the Adhiniyam extends belongs to the State Government, its officers and its agents or under the second Explanation to a person having interest in a holding. No purchase of tendu leaves, except from Government, its officers and agents, is legal by reason of the firstread with the first Explanation. The seconddeals with transport. It allows a grower of tendu leaves to transport his leaves from any place within the unit wherein such leaves are grown to any other place in that unit, and tendu leaves purchased from the State Government or its officers or agents by any person for manufacture of bidis within the State or by any person for sale outside the State may be transported outside the unit. No other person can at all transport tendu leaves. The secondhas the effect of keeping the tendu leaves within" the unit until they have been purchased by or from Government. On purchase they can be transported either to a place within the State for the manufacture of bidis or exported outside the unit. Under the third subsection any person who desires to sell tendu leaves, may sell them to a Government officer or agent at any depot situated within his unit. By reason of these provisions growers of tendu leaves, other than Government, are compelled to sell them to Government, its officers and agents, at the various depots at the prices settled by the Advisory Committee under the Niyam. The Niyamavali lays down the procedure to be followed. Once all tendu leaves have come into the possession of Government purchase of tendu leaves must be from the Government and its officers and agents because only such purchase is not an offence under the Adhiniyam.The position of the petitioner firm is this : it does not seek to justify its acquisition of tendu leaves by reason of a purchase from Government. It says that it has already purchased the tendu leaves from the Raja by an agreement made with the Raja in 1948 and that that agreement is binding upon Government because of a decision of this Court. But the decision of this Court merely decided that there was nothing in the Abolition Act by which the agreement could be said to be affected. That decision had nothing to say about those rights of the petitioner firm, viewed in the light of the Adhiniyam. The Adhiniyam is challenged only on the ground that it cannot operate against the petitioner firm which holds a decree of this Court. The decree of this Court only said that Government must not interfere with the petitioner firm by reason of anything contained in the Abolition Act. To the Abolition Act must now be added the Adhiniyam and we must see what is the joint effect of the two Acts. The Abolition Act vested the forests and tendu plants in Government and they become the property of Government. This was decided a long time ago and there is no quarrel on this account. By the Adhiniyam Government gets the sole right to purchase tendu leaves from any area to which the Adhiniyam extends and no person can buy tendu leaves except from Government, its officers and agents. Government obtains the monopoly of trade in tendu leaves in those areas of the State to which the Adhiniyam applies. The purchase of tendu leaves must now be in according with the Adhiniyam. Since there is no right to property before the leaves are plucked, no such right can be said to be invaded by the Adhiniyam. It cannot be said either by reason of any of res judicata or on analogy that the petitioner firm is entitled to invoke Art. 32 of the Constitution when it possesses no right of property in the leaves. It has only a contract in its favour and that is not, a right of property.No doubt the Adhiniyam indirectly overreaches the decision of this Court but that, in any event, is open to the State Legislature provided it passes a valid law to that effect. The law is not challenged as invalid and it must therefore apply to the petitioner firm, as to any other person. The petitioner firm cannot take shelter of Explanation I till it buys leaves form Government under the Adhiniyam and the Niyamavali.
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Malojirao Narasinghrao Shitole Vs. The State Of Madhya Pradesh | the Ryotwari Act).7. Section 34 of the Ryotwari Act provides:"Subject to the previsions of the Limitation Act in form for the time being regarding the extension and computation of the period of limitation:-(1) no appeal to the Board shall be brought after the expiry of ninety days from the date of the decision or the order complained of;(2) * * * * *"8. Section 149 (2) of the Ryotwari Act provides that:"Except where it is otherwise specially provided the general principles of law of Limitation for the time being in force in the United States regarding extension of the principles of limitation shall apply to claims made under this Act before a Revenue Officer."It is clear from the language of Section 34 that in hearing an appeal under the Ryotwari Act the Board must guide itself by the provisions of the Limitation Act in force for extension and computation of the period of limitation. It would appear that Section 149 (2) was aimed at giving a similar guide line to the Revenue Officer. To give the said interpretation to Section 149 (2) it is necessary to read "extension of the principles of limitation" occurring therein as "extension of the period of limitation" for otherwise the section would be devoid of any meaning. The general principles of limitation are those contained in the Limitation Act of 1908 which was in force at the date when the appeal was filed before the Board of Revenue. Section 3 of the Limitation Act, 1908 laid down that subject to the provisions contained in Sections 4 to 25 (inclusive), every suit instituted, appeal preferred, and application made, after the period of limitation prescribed therefor by the First Schedule was to be dismissed although limitation had not been set up as a defence. Under Section 5 of the Limitation Act of 1908 an appeal could be admitted after the period of limitation prescribed therefor when the appellant satisfied the Court that he had sufficient cause for not preferring or making the application within such period, Under Section 29 (2) of the Limitation Act:"Where any special or local, law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of Section 3 shall apply, as if such period were prescribed therefor in that Schedule and for the purpose of determining any period of limitation prescribed for any suit appeal or application by the special or local law-(a) the provisions contained in Sec. 4, Sections 9 to 18, and Section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and(b) the remaining provisions of this Act shall not apply."These section s go to show that unless excluded by the Jagirs Act or Ryotwari Act Section 12 of the Limitation Act would be applicable to appeals filed before the Board of Revenue under any of those Acts.9. It has been held by a Division Bench of the Madhya Prades High Court in Brijrajsingh v. The Board Revenue, Misc. Civil Case No. 22 of 1962, D/- 183-1963 (MP) that the expression "principles of limitation" in Section 149 (2) mentioned above should be construed as extension of the period of limitation. For the reasons given above, we are in agreement with the said conclusion of the Madhya Pradesh High Court. In our view, the word principle therein was inserted due to inept or careless drafting and what was meant was "period" and not principles.10. Even if we were to read the Statute as it is, the principle of the Limitation Act is to dismiss a suit, appeal or application if filed beyond time but also to extend the time for filing an appeal if the delay is explained. That principle is clearly capable of extension in the present case.11. If Sections 34 and 149 (2) were applicable to the facts of the case before the Board of Revenue and we hold to that effect, the time spent in obtaining a copy of the judgment forming the basis or giving reasons of the decision should have been excluded in computing the period of 90 days under Section 29 of the Jagirs Act.The appellant was not guilty of any laches in his appeal to the Board of Revenue. He applied for a copy of the judgment of the Jagir Commissioner on the day next after communication to him of the order of the Jagir Commissioner. Even if the application was unaccompanied by any fees prescribed for the purpose, the Board of Revenue should have taken this fact into consideration before holding the appellants appeal to be out of time. If the application for the copy of the judgment made on the 24th February was in order, the appeal was in time. Even if fire time taken in obtaining the copy of the judgment be reckoned from the 12th March to 18th March, 1958, the appellant was out by two days only in filing the appeal to the Board of Revenue. If the l st of June 1958, which happened to be a Sunday be left out of consideration, the appellant was out by one day only.12. As appears from the order dated September 28, 1961, the Board of Revenue refused to entertain the appeal on the ground of limitation without considering the question as to whether the appellant had made out a case for condonation of delay, if any. In our view, the Board of Revenue had not acted judicially in through out the appeal. The High Court was therefore not right in upholding the order of the Board of Revenue which ignored the, provisions of. Sections 34 and 149 (2) of the Ryotwari Act and the relevant provisions of the Limitation Act. A sounder view of the law was taken by another Division Bench of the same High Court in Brijrajsinghs case, Misc. Civil Case No. 22 1962, D/- 183-1963 (MP) noted above. | 1[ds]5. From the above provisions of the Act, it is amply clear that neither the Government nor the Jagirdar nor any person aggrieved by the decision of the Jagir Commissioner under Section 13 can file an appeal to the Board of Revenue to any purpose without a copy of the judgment showing how the decision under Sec. 13 was arrived at. In this case, the memorandum of compensation merely showed that a sum exceeding Rs. 17 lakhs had been determined as amount payable to the appellant The memorandum did not show how the same was computed or how the claim for compensation preferred by the petitioner under various heads was dealt with. In order that an appeal may be effective the appellant must be able to formulate his grounds for challenging the judgment which has gone against him.The question therefore arises as to whether the time taken in obtaining a copy of the judgment which forms the basis of the decision in determining the compensation can be excluded from the period of 90 days mentioned in Section 29 of the Jagirs AbolitionSection 34 of the Ryotwari Actto the previsions of the Limitation Act in form for the time being regarding the extension and computation of the period of limitation:-(1) no appeal to the Board shall be brought after the expiry of ninety days from the date of the decision or the order complained of;(2) * * * *Section 149 (2) of the Ryotwari Act provideswhere it is otherwise specially provided the general principles of law of Limitation for the time being in force in the United States regarding extension of the principles of limitation shall apply to claims made under this Act before a Revenueis clear from the language of Section 34 that in hearing an appeal under the Ryotwari Act the Board must guide itself by the provisions of the Limitation Act in force for extension and computation of the period of limitation. It would appear that Section 149 (2) was aimed at giving a similar guide line to the Revenue Officer. To give the said interpretation to Section 149 (2) it is necessary to read "extension of the principles of limitation" occurring therein as "extension of the period of limitation" for otherwise the section would be devoid of any meaning. The general principles of limitation are those contained in the Limitation Act of 1908 which was in force at the date when the appeal was filed before the Board of Revenue. Section 3 of the Limitation Act, 1908 laid down that subject to the provisions contained in Sections 4 to 25 (inclusive), every suit instituted, appeal preferred, and application made, after the period of limitation prescribed therefor by the First Schedule was to be dismissed although limitation had not been set up as a defence. Under Section 5 of the Limitation Act of 1908 an appeal could be admitted after the period of limitation prescribed therefor when the appellant satisfied the Court that he had sufficient cause for not preferring or making the application within such period, Under Section 29 (2) of the Limitationany special or local, law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of Section 3 shall apply, as if such period were prescribed therefor in that Schedule and for the purpose of determining any period of limitation prescribed for any suit appeal or application by the special or local law-(a) the provisions contained in Sec. 4, Sections 9 to 18, and Section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and(b) the remaining provisions of this Act shall notsection s go to show that unless excluded by the Jagirs Act or Ryotwari Act Section 12 of the Limitation Act would be applicable to appeals filed before the Board of Revenue under any of those Acts.9. It has been held by a Division Bench of the Madhya Prades High Court in Brijrajsingh v. The Board Revenue, Misc. Civil Case No. 22 of 1962, D/- 183-1963 (MP) that the expression "principles of limitation" in Section 149 (2) mentioned above should be construed as extension of the period of limitation. For the reasons given above, we are in agreement with the said conclusion of the Madhya Pradesh High Court. In our view, the word principle therein was inserted due to inept or careless drafting and what was meant was "period" and not principles.10. Even if we were to read the Statute as it is, the principle of the Limitation Act is to dismiss a suit, appeal or application if filed beyond time but also to extend the time for filing an appeal if the delay is explained. That principle is clearly capable of extension in the present case.11. If Sections 34 and 149 (2) were applicable to the facts of the case before the Board of Revenue and we hold to that effect, the time spent in obtaining a copy of the judgment forming the basis or giving reasons of the decision should have been excluded in computing the period of 90 days under Section 29 of the Jagirs Act.The appellant was not guilty of any laches in his appeal to the Board of Revenue. He applied for a copy of the judgment of the Jagir Commissioner on the day next after communication to him of the order of the Jagir Commissioner. Even if the application was unaccompanied by any fees prescribed for the purpose, the Board of Revenue should have taken this fact into consideration before holding the appellants appeal to be out of time. If the application for the copy of the judgment made on the 24th February was in order, the appeal was in time. Even if fire time taken in obtaining the copy of the judgment be reckoned from the 12th March to 18th March, 1958, the appellant was out by two days only in filing the appeal to the Board of Revenue. If the l st of June 1958, which happened to be a Sunday be left out of consideration, the appellant was out by one day only.12. As appears from the order dated September 28, 1961, the Board of Revenue refused to entertain the appeal on the ground of limitation without considering the question as to whether the appellant had made out a case for condonation of delay, if any. In our view, the Board of Revenue had not acted judicially in through out the appeal. The High Court was therefore not right in upholding the order of the Board of Revenue which ignored the, provisions of. Sections 34 and 149 (2) of the Ryotwari Act and the relevant provisions of the Limitation Act. A sounder view of the law was taken by another Division Bench of the same High Court in Brijrajsinghs case, Misc. Civil Case No. 22 1962, D/- 183-1963 (MP) noted above. | 1 | 2,382 | 1,283 | ### Instruction:
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the Ryotwari Act).7. Section 34 of the Ryotwari Act provides:"Subject to the previsions of the Limitation Act in form for the time being regarding the extension and computation of the period of limitation:-(1) no appeal to the Board shall be brought after the expiry of ninety days from the date of the decision or the order complained of;(2) * * * * *"8. Section 149 (2) of the Ryotwari Act provides that:"Except where it is otherwise specially provided the general principles of law of Limitation for the time being in force in the United States regarding extension of the principles of limitation shall apply to claims made under this Act before a Revenue Officer."It is clear from the language of Section 34 that in hearing an appeal under the Ryotwari Act the Board must guide itself by the provisions of the Limitation Act in force for extension and computation of the period of limitation. It would appear that Section 149 (2) was aimed at giving a similar guide line to the Revenue Officer. To give the said interpretation to Section 149 (2) it is necessary to read "extension of the principles of limitation" occurring therein as "extension of the period of limitation" for otherwise the section would be devoid of any meaning. The general principles of limitation are those contained in the Limitation Act of 1908 which was in force at the date when the appeal was filed before the Board of Revenue. Section 3 of the Limitation Act, 1908 laid down that subject to the provisions contained in Sections 4 to 25 (inclusive), every suit instituted, appeal preferred, and application made, after the period of limitation prescribed therefor by the First Schedule was to be dismissed although limitation had not been set up as a defence. Under Section 5 of the Limitation Act of 1908 an appeal could be admitted after the period of limitation prescribed therefor when the appellant satisfied the Court that he had sufficient cause for not preferring or making the application within such period, Under Section 29 (2) of the Limitation Act:"Where any special or local, law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of Section 3 shall apply, as if such period were prescribed therefor in that Schedule and for the purpose of determining any period of limitation prescribed for any suit appeal or application by the special or local law-(a) the provisions contained in Sec. 4, Sections 9 to 18, and Section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and(b) the remaining provisions of this Act shall not apply."These section s go to show that unless excluded by the Jagirs Act or Ryotwari Act Section 12 of the Limitation Act would be applicable to appeals filed before the Board of Revenue under any of those Acts.9. It has been held by a Division Bench of the Madhya Prades High Court in Brijrajsingh v. The Board Revenue, Misc. Civil Case No. 22 of 1962, D/- 183-1963 (MP) that the expression "principles of limitation" in Section 149 (2) mentioned above should be construed as extension of the period of limitation. For the reasons given above, we are in agreement with the said conclusion of the Madhya Pradesh High Court. In our view, the word principle therein was inserted due to inept or careless drafting and what was meant was "period" and not principles.10. Even if we were to read the Statute as it is, the principle of the Limitation Act is to dismiss a suit, appeal or application if filed beyond time but also to extend the time for filing an appeal if the delay is explained. That principle is clearly capable of extension in the present case.11. If Sections 34 and 149 (2) were applicable to the facts of the case before the Board of Revenue and we hold to that effect, the time spent in obtaining a copy of the judgment forming the basis or giving reasons of the decision should have been excluded in computing the period of 90 days under Section 29 of the Jagirs Act.The appellant was not guilty of any laches in his appeal to the Board of Revenue. He applied for a copy of the judgment of the Jagir Commissioner on the day next after communication to him of the order of the Jagir Commissioner. Even if the application was unaccompanied by any fees prescribed for the purpose, the Board of Revenue should have taken this fact into consideration before holding the appellants appeal to be out of time. If the application for the copy of the judgment made on the 24th February was in order, the appeal was in time. Even if fire time taken in obtaining the copy of the judgment be reckoned from the 12th March to 18th March, 1958, the appellant was out by two days only in filing the appeal to the Board of Revenue. If the l st of June 1958, which happened to be a Sunday be left out of consideration, the appellant was out by one day only.12. As appears from the order dated September 28, 1961, the Board of Revenue refused to entertain the appeal on the ground of limitation without considering the question as to whether the appellant had made out a case for condonation of delay, if any. In our view, the Board of Revenue had not acted judicially in through out the appeal. The High Court was therefore not right in upholding the order of the Board of Revenue which ignored the, provisions of. Sections 34 and 149 (2) of the Ryotwari Act and the relevant provisions of the Limitation Act. A sounder view of the law was taken by another Division Bench of the same High Court in Brijrajsinghs case, Misc. Civil Case No. 22 1962, D/- 183-1963 (MP) noted above.
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be excluded from the period of 90 days mentioned in Section 29 of the Jagirs AbolitionSection 34 of the Ryotwari Actto the previsions of the Limitation Act in form for the time being regarding the extension and computation of the period of limitation:-(1) no appeal to the Board shall be brought after the expiry of ninety days from the date of the decision or the order complained of;(2) * * * *Section 149 (2) of the Ryotwari Act provideswhere it is otherwise specially provided the general principles of law of Limitation for the time being in force in the United States regarding extension of the principles of limitation shall apply to claims made under this Act before a Revenueis clear from the language of Section 34 that in hearing an appeal under the Ryotwari Act the Board must guide itself by the provisions of the Limitation Act in force for extension and computation of the period of limitation. It would appear that Section 149 (2) was aimed at giving a similar guide line to the Revenue Officer. To give the said interpretation to Section 149 (2) it is necessary to read "extension of the principles of limitation" occurring therein as "extension of the period of limitation" for otherwise the section would be devoid of any meaning. The general principles of limitation are those contained in the Limitation Act of 1908 which was in force at the date when the appeal was filed before the Board of Revenue. Section 3 of the Limitation Act, 1908 laid down that subject to the provisions contained in Sections 4 to 25 (inclusive), every suit instituted, appeal preferred, and application made, after the period of limitation prescribed therefor by the First Schedule was to be dismissed although limitation had not been set up as a defence. Under Section 5 of the Limitation Act of 1908 an appeal could be admitted after the period of limitation prescribed therefor when the appellant satisfied the Court that he had sufficient cause for not preferring or making the application within such period, Under Section 29 (2) of the Limitationany special or local, law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of Section 3 shall apply, as if such period were prescribed therefor in that Schedule and for the purpose of determining any period of limitation prescribed for any suit appeal or application by the special or local law-(a) the provisions contained in Sec. 4, Sections 9 to 18, and Section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and(b) the remaining provisions of this Act shall notsection s go to show that unless excluded by the Jagirs Act or Ryotwari Act Section 12 of the Limitation Act would be applicable to appeals filed before the Board of Revenue under any of those Acts.9. It has been held by a Division Bench of the Madhya Prades High Court in Brijrajsingh v. The Board Revenue, Misc. Civil Case No. 22 of 1962, D/- 183-1963 (MP) that the expression "principles of limitation" in Section 149 (2) mentioned above should be construed as extension of the period of limitation. For the reasons given above, we are in agreement with the said conclusion of the Madhya Pradesh High Court. In our view, the word principle therein was inserted due to inept or careless drafting and what was meant was "period" and not principles.10. Even if we were to read the Statute as it is, the principle of the Limitation Act is to dismiss a suit, appeal or application if filed beyond time but also to extend the time for filing an appeal if the delay is explained. That principle is clearly capable of extension in the present case.11. If Sections 34 and 149 (2) were applicable to the facts of the case before the Board of Revenue and we hold to that effect, the time spent in obtaining a copy of the judgment forming the basis or giving reasons of the decision should have been excluded in computing the period of 90 days under Section 29 of the Jagirs Act.The appellant was not guilty of any laches in his appeal to the Board of Revenue. He applied for a copy of the judgment of the Jagir Commissioner on the day next after communication to him of the order of the Jagir Commissioner. Even if the application was unaccompanied by any fees prescribed for the purpose, the Board of Revenue should have taken this fact into consideration before holding the appellants appeal to be out of time. If the application for the copy of the judgment made on the 24th February was in order, the appeal was in time. Even if fire time taken in obtaining the copy of the judgment be reckoned from the 12th March to 18th March, 1958, the appellant was out by two days only in filing the appeal to the Board of Revenue. If the l st of June 1958, which happened to be a Sunday be left out of consideration, the appellant was out by one day only.12. As appears from the order dated September 28, 1961, the Board of Revenue refused to entertain the appeal on the ground of limitation without considering the question as to whether the appellant had made out a case for condonation of delay, if any. In our view, the Board of Revenue had not acted judicially in through out the appeal. The High Court was therefore not right in upholding the order of the Board of Revenue which ignored the, provisions of. Sections 34 and 149 (2) of the Ryotwari Act and the relevant provisions of the Limitation Act. A sounder view of the law was taken by another Division Bench of the same High Court in Brijrajsinghs case, Misc. Civil Case No. 22 1962, D/- 183-1963 (MP) noted above.
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Sociedade de Fomento Industrial (P) Ltd Vs. Mormugao Dock Labour Board | notionally employed in the matter of loading the ore by the ocean-going vessel fitted with grab crane. There is nothing in clause 54 which prohibits the Board from recovering such cost of operating the Scheme in this manner. In this context, it may also be mentioned that notional employment of gang workers in connection with loading of ore on ocean-going vessels fitted with grab crane has been recognised in the settlement that was entered into on October 17, 1970 by M/s. V.M. Salgaocar & Brother Pvt. Ltd. wherein it was expressly agreed that whenever gangs are not booked for work the employers shall pay double the levy to the Board chargeable for one gang for each working grab crane. It is, therefore, not possible to accept the contention urged on behalf of the petitioners that it was not permissible for the Board to impose the levy on the basis of notional employment of gang workers although the gang workers were not actually employed in the task of loading iron ore in the vessels fitted with grab cranes. 15. Coming to the other contention based on Article 14 of the Constitution we are in agreement with the view of the High Court that grab-crane fitted vessels cannot be equated with transhippers fitted with grab cranes for the purpose of levy and that there are features which indicate that they cannot be treated at par. In this context, it has to be noted that transhippers employ regular winchmen to operate the grab cranes fitted on the transhippers as their monthly workers are responsible for paying all their dues such as salary, provident fund, and gratuity etc. Ocean-going vessels fitted with grab cranes on the other hand utilise the services of reserve pool workers for operating the grab cranes and the Board has to bear the burden for such workers. Moreover, the owners of transhippers have to engage other staff to operate the transhipper as required under the Merchant Shipping Act and they have to incur expenses for maintaining the said vessel apart from the heavy amount which has been invested in the vessel itself. It can also not be ignored that ever since the introduction of grab cranes for the purpose of loading the ore at Mormugao Port in 1970, the ocean-going vessels fitted with grab cranes have been treated differently from transhippers fitted with grab cranes in the matter of amount payable to the Board. The amount payable by ocean-going vessels fitted with grab cranes is governed by the settlement dated October 17, 1970 while the transhippers are governed by the various agreements of 1977 which have been revised from time to time. Having regard to all these circumstances we are unable to accept the contention urged on behalf of the petitioners that since transhipper as well as the ocean-going vessels fitted with grab cranes both use grab cranes for the purpose of loading the ore they should be treated alike in the matter of imposition of levies by the Board. 16. It has been said that ``no economic measure has yet been devised which is free from all discriminatory impact and that in such a complex arena in which no perfect alternatives exist, the Court does well not to impose too rigorous a standard of criticism, under the equal protection clause reviewing fiscal services. (See: P.M.A. Setty v. State of Karnataka, 1988 Supp(3) SCR 155 at p. 189). The same thought is expressed in San Antonto Independent Schools District v. Rodriguez, speaking through Justice Steward, (1973) 411 U.S.1 at page 41; G.K. Krishanan v. State of Tamil Nadu, (1975) 2 SCR 715 at p. 730. Here we find that, according to the Board, one of the factors contributing to the continuous drain on the finances of the Board is the increased off-take of iron ore since 1979 by vessels fitted with grab cranes because such off-take results in loss of opportunity of employment for the registered dock workers and consequent increase in the burden on the Board for the minimum guaranteed wages and other amounts payable under the Scheme. The Board has made efforts to reduce the strength of registered Dock workers on its roll from 2314 in 1979 to 1148 in June 1983. A substantial number, i.e., 864, of those 1148 workers are gang workers who are denied opportunity of employment on account (of) off-take of iron ore by vessels fitted with grab cranes. Annexure `A to the Rejoinder Affidavit filed on behalf of the petitioners in the High Court could show that prior to the enhancement of the general levy and welfare levy under the impugned circular the charges came to about Rs. 1.48 per wet M/T on and as a result of enhancement of the general levy and welfare levy by the impugned circular the said charges have been increased to about Rs. 2.55 per wet M/Ton, i.e., by about Re. 1/- per wet M/Ton. On the other hand, the cost of manual loading was in the range of Rs. 8.11 to Rs. 11.91 (Annexure 2 to the Affidavit in reply of A. Onkarappa filed on behalf of the Board in the High Court). The expenses for loading through transhippers (as per para 8 of the affidavit in reply filed on behalf of the Board in the High Court which was not disputed by the petitioners in their rejoinder affidavit) come to Rs. 27 to Rs. 33 per tonne. By enhancing the general levy and welfare levy under the impugned circular dated March 19, 1983 the Board, keeping in view the economics of the cost of loading under the various modes, has sought to balance its financial deficit caused on account of increased off-take of ore through ocean-going vessels fitted with grab cranes by enhancing the levies which has led to increase in the cost of loading through vessels fitted with grab cranes. In doing so the Board cannot be said to have acted arbitrarily or unreasonably or having subjected the petitioners to hostile or invidious discrimination. | 0[ds]6. Insofar as the owners of transhippers are concerned since they were employing their own winchmen they claimed that they were not required to register themselves under the Scheme and they were not liable to pay any levy under the scheme on the ground that the cargo handled by them was outside the Scheme. A writ petition (W.P.No. 47 of 1971) was filed by M/s. ChowguleCo. Pvt. Ltd., owners of a transhipper vessel, in the Court of Judicial Commissioner of Goa wherein it was contended that the owners of the transhipper were not doing dock work within the meaning of the Scheme and they were entitled to employ their own labour and they were not required to pay any levies for the cost of administering the Scheme. The said writ petition was disposed of by the Judicial Commissioner by his judgment dated August 19, 1974 whereby the contention that the owners of the transhipper were outside the Scheme and did not perform dock work was rejected and it was held that they were liable to pay levy for the winchmen. It was, however, held that the owners of the transhipper were not liable to pay notional levy on the basis of gangmen who were not actually utilised by the said owners. The Board as well as the owners of the transhipper filed appeals against the said judgment of the Judicial Commissioner in this Court and the said appeals were disposed of in terms of an agreement dated July 8, 1977 whereby it was agreed that the owners of the transhipper shall register themselves as employers within the meaning of the Scheme with liberty to employ their own workmen on their transhipper who would be treated as monthly workers under the Scheme and that the owners of the transhipper would pay a flat rate levy of 7 paise per tonne of cargo handled through the transhipper which rate of levy would not be changed except by mutual consent of the parties. It appears that similar agreements were entered into with other owners of transhipper vessels in 1977. The rate of levy was revised from 7 paise per tonne to 21 paise per tonne and in April 1983 a formula was agreed upon for future revision of the same. The said levy is composite and allthe same time the Board decided to increase the percentage of general levy in respect of handling by grab crane fitted ships from 200% to 400% and the welfare levy from 30% to 60%. The Central Government gave its approval to the said increase by its order dated March 11,1983. Thereafter the Board issued the impugned circular dated March 19, 1983 increasing the general levy from 200% to 400% and the welfare levy from 30% to 60%. Similarly the Board decided to impose a special levy @ Re. 1/per tonne in respect of all cargo handled manually by the registered dock workers. The said proposal was approved by the Central Government by letter dated March 14, 1983 and thereupon the impugned circular dated March, 19, 1983 was issued by the Board imposing the special levy @ Re. 1/per tonne in respect of all cargos manually handled by the registered dock workers with effect from March 14, 1983. The said circular was clarified by the Board by resolution dated July 14, 1983 that the special levy is authorised to be collected in respect of all cargos handled with the help of registered dock workers whether gang workers or winch drivers. The said clarification was also approved by the Central Government by its letter dated December 21, 1983.As regards the first contention urged by the learned counsel for the petitioners based on clause 54 of the Scheme it is necessary to bear in mind that the object of the Scheme as set out in clause 2(1) is to ensure greater regularity of employment for dock workers and to secure that an adequate number of dock workers is available for the efficient performance of dock work. The Scheme seeks to achieve these twin objects by maintaining a reserve pool of registered dock workers who are available for work and a worker in the reserve pool is guaranteed minimum wages in a month under clause 32 as well as attendance allowance under clause 33 and disappointment money under clause 35. Clause 54(1) empowers the Board to recover from registered employers the cost of operating the Scheme. Since the Scheme applies to gang workers the cost of operating the Scheme includes that payments made to gang workers under the various clauses of the Scheme. Normally a gang consists of four winchmen and 10 gang workers to operate a crane per shift. For operating the grab crane only winchmen are required and gang workers are not required. But insofar as the Board is concerned it has to keep gang workers on its rolls and to pay their minimum wages and other allowances payable under the Scheme to the gang workers in the reserve pool. Since the wages and allowances payable to the workmen under the Scheme form part of the cost of operating the Scheme it would be permissible for the Board to recover the said cost by way of levy by treating the gang workers as notionally employed in the matter of loading the ore by thevessel fitted with grab crane. There is nothing in clause 54 which prohibits the Board from recovering such cost of operating the Scheme in this manner.Coming to the other contention based on Article 14 of the Constitution we are in agreement with the view of the High Court thatfitted vessels cannot be equated with transhippers fitted with grab cranes for the purpose of levy and that there are features which indicate that they cannot be treated at par. In this context, it has to be noted that transhippers employ regular winchmen to operate the grab cranes fitted on the transhippers as their monthly workers are responsible for paying all their dues such as salary, provident fund, and gratuityregard to all these circumstances we are unable to accept the contention urged on behalf of the petitioners that since transhipper as well as thevessels fitted with grab cranes both use grab cranes for the purpose of loading the ore they should be treated alike in the matter of imposition of levies by theenhancing the general levy and welfare levy under the impugned circular dated March 19, 1983 the Board, keeping in view the economics of the cost of loading under the various modes, has sought to balance its financial deficit caused on account of increasedof ore throughvessels fitted with grab cranes by enhancing the levies which has led to increase in the cost of loading throughvessels fitted with grab cranes.In doing so the Board cannot be said to have acted arbitrarily or unreasonably or having subjected the petitioners to hostile or invidiousHigh Court has held that the circular dated March 19, 1983 regarding increase in the general levy and welfare levy from 200% to 400% and 30% to 60% respectively could only operate from the date of such circular and could not be made operative with effect from October 30, 1982, the date of passing of the resolution, for the reason that prior approval of the Central Government was required in view of clause 54(3) of the Scheme and the proposal made by the Board in its resolution dated October 30, 1982 was approved by the Central Government only on March 14, 1983. We do not find any infirmity in this approach of the High Court. Similarly as regards circular dated March 19, 1983 for imposition of special levy the High Court has rightly held that the said circular could not have retrospective effect. | 0 | 6,965 | 1,374 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
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notionally employed in the matter of loading the ore by the ocean-going vessel fitted with grab crane. There is nothing in clause 54 which prohibits the Board from recovering such cost of operating the Scheme in this manner. In this context, it may also be mentioned that notional employment of gang workers in connection with loading of ore on ocean-going vessels fitted with grab crane has been recognised in the settlement that was entered into on October 17, 1970 by M/s. V.M. Salgaocar & Brother Pvt. Ltd. wherein it was expressly agreed that whenever gangs are not booked for work the employers shall pay double the levy to the Board chargeable for one gang for each working grab crane. It is, therefore, not possible to accept the contention urged on behalf of the petitioners that it was not permissible for the Board to impose the levy on the basis of notional employment of gang workers although the gang workers were not actually employed in the task of loading iron ore in the vessels fitted with grab cranes. 15. Coming to the other contention based on Article 14 of the Constitution we are in agreement with the view of the High Court that grab-crane fitted vessels cannot be equated with transhippers fitted with grab cranes for the purpose of levy and that there are features which indicate that they cannot be treated at par. In this context, it has to be noted that transhippers employ regular winchmen to operate the grab cranes fitted on the transhippers as their monthly workers are responsible for paying all their dues such as salary, provident fund, and gratuity etc. Ocean-going vessels fitted with grab cranes on the other hand utilise the services of reserve pool workers for operating the grab cranes and the Board has to bear the burden for such workers. Moreover, the owners of transhippers have to engage other staff to operate the transhipper as required under the Merchant Shipping Act and they have to incur expenses for maintaining the said vessel apart from the heavy amount which has been invested in the vessel itself. It can also not be ignored that ever since the introduction of grab cranes for the purpose of loading the ore at Mormugao Port in 1970, the ocean-going vessels fitted with grab cranes have been treated differently from transhippers fitted with grab cranes in the matter of amount payable to the Board. The amount payable by ocean-going vessels fitted with grab cranes is governed by the settlement dated October 17, 1970 while the transhippers are governed by the various agreements of 1977 which have been revised from time to time. Having regard to all these circumstances we are unable to accept the contention urged on behalf of the petitioners that since transhipper as well as the ocean-going vessels fitted with grab cranes both use grab cranes for the purpose of loading the ore they should be treated alike in the matter of imposition of levies by the Board. 16. It has been said that ``no economic measure has yet been devised which is free from all discriminatory impact and that in such a complex arena in which no perfect alternatives exist, the Court does well not to impose too rigorous a standard of criticism, under the equal protection clause reviewing fiscal services. (See: P.M.A. Setty v. State of Karnataka, 1988 Supp(3) SCR 155 at p. 189). The same thought is expressed in San Antonto Independent Schools District v. Rodriguez, speaking through Justice Steward, (1973) 411 U.S.1 at page 41; G.K. Krishanan v. State of Tamil Nadu, (1975) 2 SCR 715 at p. 730. Here we find that, according to the Board, one of the factors contributing to the continuous drain on the finances of the Board is the increased off-take of iron ore since 1979 by vessels fitted with grab cranes because such off-take results in loss of opportunity of employment for the registered dock workers and consequent increase in the burden on the Board for the minimum guaranteed wages and other amounts payable under the Scheme. The Board has made efforts to reduce the strength of registered Dock workers on its roll from 2314 in 1979 to 1148 in June 1983. A substantial number, i.e., 864, of those 1148 workers are gang workers who are denied opportunity of employment on account (of) off-take of iron ore by vessels fitted with grab cranes. Annexure `A to the Rejoinder Affidavit filed on behalf of the petitioners in the High Court could show that prior to the enhancement of the general levy and welfare levy under the impugned circular the charges came to about Rs. 1.48 per wet M/T on and as a result of enhancement of the general levy and welfare levy by the impugned circular the said charges have been increased to about Rs. 2.55 per wet M/Ton, i.e., by about Re. 1/- per wet M/Ton. On the other hand, the cost of manual loading was in the range of Rs. 8.11 to Rs. 11.91 (Annexure 2 to the Affidavit in reply of A. Onkarappa filed on behalf of the Board in the High Court). The expenses for loading through transhippers (as per para 8 of the affidavit in reply filed on behalf of the Board in the High Court which was not disputed by the petitioners in their rejoinder affidavit) come to Rs. 27 to Rs. 33 per tonne. By enhancing the general levy and welfare levy under the impugned circular dated March 19, 1983 the Board, keeping in view the economics of the cost of loading under the various modes, has sought to balance its financial deficit caused on account of increased off-take of ore through ocean-going vessels fitted with grab cranes by enhancing the levies which has led to increase in the cost of loading through vessels fitted with grab cranes. In doing so the Board cannot be said to have acted arbitrarily or unreasonably or having subjected the petitioners to hostile or invidious discrimination.
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monthly workers under the Scheme and that the owners of the transhipper would pay a flat rate levy of 7 paise per tonne of cargo handled through the transhipper which rate of levy would not be changed except by mutual consent of the parties. It appears that similar agreements were entered into with other owners of transhipper vessels in 1977. The rate of levy was revised from 7 paise per tonne to 21 paise per tonne and in April 1983 a formula was agreed upon for future revision of the same. The said levy is composite and allthe same time the Board decided to increase the percentage of general levy in respect of handling by grab crane fitted ships from 200% to 400% and the welfare levy from 30% to 60%. The Central Government gave its approval to the said increase by its order dated March 11,1983. Thereafter the Board issued the impugned circular dated March 19, 1983 increasing the general levy from 200% to 400% and the welfare levy from 30% to 60%. Similarly the Board decided to impose a special levy @ Re. 1/per tonne in respect of all cargo handled manually by the registered dock workers. The said proposal was approved by the Central Government by letter dated March 14, 1983 and thereupon the impugned circular dated March, 19, 1983 was issued by the Board imposing the special levy @ Re. 1/per tonne in respect of all cargos manually handled by the registered dock workers with effect from March 14, 1983. The said circular was clarified by the Board by resolution dated July 14, 1983 that the special levy is authorised to be collected in respect of all cargos handled with the help of registered dock workers whether gang workers or winch drivers. The said clarification was also approved by the Central Government by its letter dated December 21, 1983.As regards the first contention urged by the learned counsel for the petitioners based on clause 54 of the Scheme it is necessary to bear in mind that the object of the Scheme as set out in clause 2(1) is to ensure greater regularity of employment for dock workers and to secure that an adequate number of dock workers is available for the efficient performance of dock work. The Scheme seeks to achieve these twin objects by maintaining a reserve pool of registered dock workers who are available for work and a worker in the reserve pool is guaranteed minimum wages in a month under clause 32 as well as attendance allowance under clause 33 and disappointment money under clause 35. Clause 54(1) empowers the Board to recover from registered employers the cost of operating the Scheme. Since the Scheme applies to gang workers the cost of operating the Scheme includes that payments made to gang workers under the various clauses of the Scheme. Normally a gang consists of four winchmen and 10 gang workers to operate a crane per shift. For operating the grab crane only winchmen are required and gang workers are not required. But insofar as the Board is concerned it has to keep gang workers on its rolls and to pay their minimum wages and other allowances payable under the Scheme to the gang workers in the reserve pool. Since the wages and allowances payable to the workmen under the Scheme form part of the cost of operating the Scheme it would be permissible for the Board to recover the said cost by way of levy by treating the gang workers as notionally employed in the matter of loading the ore by thevessel fitted with grab crane. There is nothing in clause 54 which prohibits the Board from recovering such cost of operating the Scheme in this manner.Coming to the other contention based on Article 14 of the Constitution we are in agreement with the view of the High Court thatfitted vessels cannot be equated with transhippers fitted with grab cranes for the purpose of levy and that there are features which indicate that they cannot be treated at par. In this context, it has to be noted that transhippers employ regular winchmen to operate the grab cranes fitted on the transhippers as their monthly workers are responsible for paying all their dues such as salary, provident fund, and gratuityregard to all these circumstances we are unable to accept the contention urged on behalf of the petitioners that since transhipper as well as thevessels fitted with grab cranes both use grab cranes for the purpose of loading the ore they should be treated alike in the matter of imposition of levies by theenhancing the general levy and welfare levy under the impugned circular dated March 19, 1983 the Board, keeping in view the economics of the cost of loading under the various modes, has sought to balance its financial deficit caused on account of increasedof ore throughvessels fitted with grab cranes by enhancing the levies which has led to increase in the cost of loading throughvessels fitted with grab cranes.In doing so the Board cannot be said to have acted arbitrarily or unreasonably or having subjected the petitioners to hostile or invidiousHigh Court has held that the circular dated March 19, 1983 regarding increase in the general levy and welfare levy from 200% to 400% and 30% to 60% respectively could only operate from the date of such circular and could not be made operative with effect from October 30, 1982, the date of passing of the resolution, for the reason that prior approval of the Central Government was required in view of clause 54(3) of the Scheme and the proposal made by the Board in its resolution dated October 30, 1982 was approved by the Central Government only on March 14, 1983. We do not find any infirmity in this approach of the High Court. Similarly as regards circular dated March 19, 1983 for imposition of special levy the High Court has rightly held that the said circular could not have retrospective effect.
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M/S.Asian Power Controls Limited Vs. Mrs. Bubbles Goyal | required to be admitted and advertised and it is at that stage that the Court could go into the question as to whether the security is sufficient or not and exercise its discretion to accept the petitioning creditors claims and request for winding up or to reject the same on judicial consideration.The judgment in Bharat Overseas Bank Ltd. does not lay down any principle to the contrary. In fact, the judgment of the Division Bench in Bharat Overseas Bank Ltd.scase follows the consistent principle of law which has been laid down by the Madras and Calcutta High Courts as noted earlier.10. Section 529(1) of the Companies Act, 1956, provides that in the winding up of an insolvent company, the same rules shall prevail and be observed with regard to (a) debts provable; (b) the valuation of annuities and future and contingent liabilities; and (c) the respective rights of secured and unsecured creditors; as are in force for the time being under the law of insolvency with respect to the estates of persons adjudged insolvent. Under sub-section (2) of section 529, all persons who in any such case would be entitled to prove for and receive dividends out of the assets of the company, may come in under the winding up, and make such claims against the company as they respectively are entitled to make by virtue of the section. Section 529A provides an overriding preferential priority to the dues of the workmen and to the debts due to secured creditors to the extent to which such debts rank paripassu under clause (c) of the proviso to sub-section (1) of section 529 with such dues. The rules of insolvency which are attracted to proceedings of winding up are inter alia those pertaining to the proof of debts. This is after the stage of the winding up order. This principle has been enunciated in a judgment of Mr.Justice M.N.Venkatachaliah (as the learned Chief Justice then was) speaking for a Division Bench of the Karnataka High Court in Hegdeand Golay Limited v. State Bank of India (ILR 1987 Kar 2673). The judgment of the Company Judge of this Court in CanfinHomes Ltd. (supra) has also followed the principle that the scheme of the provisions relating to winding up, particularly those in sections 528 and 529 would indicate that the stage of proving a claim of a debt arises after an order of winding up is passed. In CanffinHomes Ltd., this Court held as follows:-15. The secured creditor who seeks to prove the whole of his debt in the course of the proceedings of winding up must before he can prove his debt relinquish his security for the benefit of the general body of the creditors. If he surrenders his security for the benefit of the general body of creditors, he may prove the whole of his debt. If the secured creditor has realised his security, he may prove for the balance due to him after deducting the net amount that has been realised. The stage for relinquishing security arises when a secured creditor seeks to prove the whole of his debt in the course of winding up. If, he elects to prove in the course of winding up the whole of the debt due and owing to him, he has to necessarily surrender his security for the benefit of the general body creditors.Having regard to the position in law as consistently followed in the judgments of the Madras, Calcutta and Karnataka High Courts and as reiterated in the judgment of the Company Court in CanfinHomes Ltd., it is not possible to accept the submission which was urged on behalf of the Appellant. The law does not impose an unreasonable condition of requiring a secured creditor to forsake his security before he asserts a right to urge that a company which is unable to pay its debts should be wound up. The Respondent has stated before the learned Company Judge, when the petition for winding up came up for hearing that it was not possible for the Respondent to recover her dues by the sale of the land in respect of which a security has been created in favour of the Respondent. The claim of the Respondent is still to be proved in the course of the winding up proceedings. A secured creditor who has a mortgage, charge or lien on the property of the company as security for her debt may either: (a) enforce the security and prove in the winding up for the balance of the debt after deducting the amount realised; or (b) surrender the security to the Liquidator and prove for the whole of the debt as an unsecured creditor; or (c) estimate the value of the property subject to her security, and prove for the balance of the debt after deducting the estimated value; or (d) rely on the security and not prove in the winding up proceedings (Penningtons Company Law (Fourth edition, page 762).A secured creditor has the option of relinquishing his security and/or proving the entirety of his debt in the course of winding up. If the secured creditor does so in the course of winding up proceedings, the security will enure for the benefit of the body of creditors. On the other hand, it is open to a secured creditor to prove in the course of winding up proceedings to the extent of his debt which has not been realised outside the proceedings for winding up by either accounting for the amount that has been so realised or by estimating the value of the property subject to security so as to enable him to prove in respect of the balance of the debt. On either view of the matter, that stage is still to arrive.11. For these reasons, we are of the view that the learned Company Judge was not in error in initially admitting the Petition and thereafter making the Company Petition for winding up absolute. No case for interference in appeal is made out. | 0[ds]Having regard to the position in law as consistently followed in the judgments of the Madras, Calcutta and Karnataka High Courts and as reiterated in the judgment of the Company Court in CanfinHomes Ltd., it is not possible to accept the submission which was urged on behalf of the Appellant. The law does not impose an unreasonable condition of requiring a secured creditor to forsake his security before he asserts a right to urge that a company which is unable to pay its debts should be wound up. The Respondent has stated before the learned Company Judge, when the petition for winding up came up for hearing that it was not possible for the Respondent to recover her dues by the sale of the land in respect of which a security has been created in favour of the Respondent. The claim of the Respondent is still to be proved in the course of the winding up proceedings. A secured creditor who has a mortgage, charge or lien on the property of the company as security for her debt may either: (a) enforce the security and prove in the winding up for the balance of the debt after deducting the amount realised; or (b) surrender the security to the Liquidator and prove for the whole of the debt as an unsecured creditor; or (c) estimate the value of the property subject to her security, and prove for the balance of the debt after deducting the estimated value; or (d) rely on the security and not prove in the winding up proceedings (Penningtons Company Law (Fourth edition, page 762).A secured creditor has the option of relinquishing his security and/or proving the entirety of his debt in the course of winding up. If the secured creditor does so in the course of winding up proceedings, the security will enure for the benefit of the body of creditors. On the other hand, it is open to a secured creditor to prove in the course of winding up proceedings to the extent of his debt which has not been realised outside the proceedings for winding up by either accounting for the amount that has been so realised or by estimating the value of the property subject to security so as to enable him to prove in respect of the balance of the debt. On either view of the matter, that stage is still to arrive.11. For these reasons, we are of the view that the learned Company Judge was not in error in initially admitting the Petition and thereafter making the Company Petition for winding up absolute. No case for interference in appeal is made out.Section 529(1) of the Companies Act, 1956, provides that in the winding up of an insolvent company, the same rules shall prevail and be observed with regard to (a) debts provable; (b) the valuation of annuities and future and contingent liabilities; and (c) the respective rights of secured and unsecured creditors; as are in force for the time being under the law of insolvency with respect to the estates of persons adjudged insolvent. Under(2) of section 529, all persons who in any such case would be entitled to prove for and receive dividends out of the assets of the company, may come in under the winding up, and make such claims against the company as they respectively are entitled to make by virtue of the section. Section 529A provides an overriding preferential priority to the dues of the workmen and to the debts due to secured creditors to the extent to which such debts rank paripassu under clause (c) of the proviso to(1) of section 529 with such dues. The rules of insolvency which are attracted to proceedings of winding up are inter alia those pertaining to the proof of debts. This is after the stage of the winding up order. This principle has been enunciated in a judgment of Mr.Justice M.N.Venkatachaliah (as the learned Chief Justice then was) speaking for a Division Bench of the Karnataka High Court in Hegdeand Golay Limited v. State Bank of India (ILR 1987 Kar 2673). The judgment of the Company Judge of this Court in CanfinHomes Ltd. (supra) has also followed the principle that the scheme of the provisions relating to winding up, particularly those in sections 528 and 529 would indicate that the stage of proving a claim of a debt arises after an order of winding up is passed. | 0 | 4,347 | 817 | ### Instruction:
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required to be admitted and advertised and it is at that stage that the Court could go into the question as to whether the security is sufficient or not and exercise its discretion to accept the petitioning creditors claims and request for winding up or to reject the same on judicial consideration.The judgment in Bharat Overseas Bank Ltd. does not lay down any principle to the contrary. In fact, the judgment of the Division Bench in Bharat Overseas Bank Ltd.scase follows the consistent principle of law which has been laid down by the Madras and Calcutta High Courts as noted earlier.10. Section 529(1) of the Companies Act, 1956, provides that in the winding up of an insolvent company, the same rules shall prevail and be observed with regard to (a) debts provable; (b) the valuation of annuities and future and contingent liabilities; and (c) the respective rights of secured and unsecured creditors; as are in force for the time being under the law of insolvency with respect to the estates of persons adjudged insolvent. Under sub-section (2) of section 529, all persons who in any such case would be entitled to prove for and receive dividends out of the assets of the company, may come in under the winding up, and make such claims against the company as they respectively are entitled to make by virtue of the section. Section 529A provides an overriding preferential priority to the dues of the workmen and to the debts due to secured creditors to the extent to which such debts rank paripassu under clause (c) of the proviso to sub-section (1) of section 529 with such dues. The rules of insolvency which are attracted to proceedings of winding up are inter alia those pertaining to the proof of debts. This is after the stage of the winding up order. This principle has been enunciated in a judgment of Mr.Justice M.N.Venkatachaliah (as the learned Chief Justice then was) speaking for a Division Bench of the Karnataka High Court in Hegdeand Golay Limited v. State Bank of India (ILR 1987 Kar 2673). The judgment of the Company Judge of this Court in CanfinHomes Ltd. (supra) has also followed the principle that the scheme of the provisions relating to winding up, particularly those in sections 528 and 529 would indicate that the stage of proving a claim of a debt arises after an order of winding up is passed. In CanffinHomes Ltd., this Court held as follows:-15. The secured creditor who seeks to prove the whole of his debt in the course of the proceedings of winding up must before he can prove his debt relinquish his security for the benefit of the general body of the creditors. If he surrenders his security for the benefit of the general body of creditors, he may prove the whole of his debt. If the secured creditor has realised his security, he may prove for the balance due to him after deducting the net amount that has been realised. The stage for relinquishing security arises when a secured creditor seeks to prove the whole of his debt in the course of winding up. If, he elects to prove in the course of winding up the whole of the debt due and owing to him, he has to necessarily surrender his security for the benefit of the general body creditors.Having regard to the position in law as consistently followed in the judgments of the Madras, Calcutta and Karnataka High Courts and as reiterated in the judgment of the Company Court in CanfinHomes Ltd., it is not possible to accept the submission which was urged on behalf of the Appellant. The law does not impose an unreasonable condition of requiring a secured creditor to forsake his security before he asserts a right to urge that a company which is unable to pay its debts should be wound up. The Respondent has stated before the learned Company Judge, when the petition for winding up came up for hearing that it was not possible for the Respondent to recover her dues by the sale of the land in respect of which a security has been created in favour of the Respondent. The claim of the Respondent is still to be proved in the course of the winding up proceedings. A secured creditor who has a mortgage, charge or lien on the property of the company as security for her debt may either: (a) enforce the security and prove in the winding up for the balance of the debt after deducting the amount realised; or (b) surrender the security to the Liquidator and prove for the whole of the debt as an unsecured creditor; or (c) estimate the value of the property subject to her security, and prove for the balance of the debt after deducting the estimated value; or (d) rely on the security and not prove in the winding up proceedings (Penningtons Company Law (Fourth edition, page 762).A secured creditor has the option of relinquishing his security and/or proving the entirety of his debt in the course of winding up. If the secured creditor does so in the course of winding up proceedings, the security will enure for the benefit of the body of creditors. On the other hand, it is open to a secured creditor to prove in the course of winding up proceedings to the extent of his debt which has not been realised outside the proceedings for winding up by either accounting for the amount that has been so realised or by estimating the value of the property subject to security so as to enable him to prove in respect of the balance of the debt. On either view of the matter, that stage is still to arrive.11. For these reasons, we are of the view that the learned Company Judge was not in error in initially admitting the Petition and thereafter making the Company Petition for winding up absolute. No case for interference in appeal is made out.
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0
### Explanation:
Having regard to the position in law as consistently followed in the judgments of the Madras, Calcutta and Karnataka High Courts and as reiterated in the judgment of the Company Court in CanfinHomes Ltd., it is not possible to accept the submission which was urged on behalf of the Appellant. The law does not impose an unreasonable condition of requiring a secured creditor to forsake his security before he asserts a right to urge that a company which is unable to pay its debts should be wound up. The Respondent has stated before the learned Company Judge, when the petition for winding up came up for hearing that it was not possible for the Respondent to recover her dues by the sale of the land in respect of which a security has been created in favour of the Respondent. The claim of the Respondent is still to be proved in the course of the winding up proceedings. A secured creditor who has a mortgage, charge or lien on the property of the company as security for her debt may either: (a) enforce the security and prove in the winding up for the balance of the debt after deducting the amount realised; or (b) surrender the security to the Liquidator and prove for the whole of the debt as an unsecured creditor; or (c) estimate the value of the property subject to her security, and prove for the balance of the debt after deducting the estimated value; or (d) rely on the security and not prove in the winding up proceedings (Penningtons Company Law (Fourth edition, page 762).A secured creditor has the option of relinquishing his security and/or proving the entirety of his debt in the course of winding up. If the secured creditor does so in the course of winding up proceedings, the security will enure for the benefit of the body of creditors. On the other hand, it is open to a secured creditor to prove in the course of winding up proceedings to the extent of his debt which has not been realised outside the proceedings for winding up by either accounting for the amount that has been so realised or by estimating the value of the property subject to security so as to enable him to prove in respect of the balance of the debt. On either view of the matter, that stage is still to arrive.11. For these reasons, we are of the view that the learned Company Judge was not in error in initially admitting the Petition and thereafter making the Company Petition for winding up absolute. No case for interference in appeal is made out.Section 529(1) of the Companies Act, 1956, provides that in the winding up of an insolvent company, the same rules shall prevail and be observed with regard to (a) debts provable; (b) the valuation of annuities and future and contingent liabilities; and (c) the respective rights of secured and unsecured creditors; as are in force for the time being under the law of insolvency with respect to the estates of persons adjudged insolvent. Under(2) of section 529, all persons who in any such case would be entitled to prove for and receive dividends out of the assets of the company, may come in under the winding up, and make such claims against the company as they respectively are entitled to make by virtue of the section. Section 529A provides an overriding preferential priority to the dues of the workmen and to the debts due to secured creditors to the extent to which such debts rank paripassu under clause (c) of the proviso to(1) of section 529 with such dues. The rules of insolvency which are attracted to proceedings of winding up are inter alia those pertaining to the proof of debts. This is after the stage of the winding up order. This principle has been enunciated in a judgment of Mr.Justice M.N.Venkatachaliah (as the learned Chief Justice then was) speaking for a Division Bench of the Karnataka High Court in Hegdeand Golay Limited v. State Bank of India (ILR 1987 Kar 2673). The judgment of the Company Judge of this Court in CanfinHomes Ltd. (supra) has also followed the principle that the scheme of the provisions relating to winding up, particularly those in sections 528 and 529 would indicate that the stage of proving a claim of a debt arises after an order of winding up is passed.
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Central Bank of India Vs. M/s. Elmot Engineering Company | protection is indispensable equally in winding-up and in bankruptcy to prevent a scramble for the assets, but it is not always enough. An even-handed justice requires that the Court should have power to intervene at an early stage for the protection of the assets, and this power is given by this section. 13. This Section aims at safeguarding the assets of a company in winding-up against wasteful or expensive litigation. As far as matters which could be expeditiously and cheaply decided by the Company Court. In granting leave under this Section, the court always takes into consideration whether the company is likely to be exposed to unnecessary litigation and cost. The position of secured creditor came to be decided by this Court in M.K. Ranganathan (supra). At pages 607 and 608, in paragraphs 15 and 16 it was held: "The position of a secured creditor in the winding up of a company has been thus stated by Lord Wrenbury in -`Food Controller v. Cork 1923 AC 647 (A) : ``The phrase outside the winding up `is an intelligible phrase if used, as it often is, with reference to a secured creditor, say a mortgages. The mortgagee of a company in liquidation is in a position to say ``the mortgaged property is to the extent of the mortgage my property. It is immaterial to me whether my mortgage is in winding up or not. I remain outside the `winding up and shall enforce my rights as mortgagee. This is to be contrasted with the case in which such a creditor prefers to assert his right, not as a mortgagee, but as a creditor. If so he comes into the winding up. It is also summarised in Palmers Company Precedents, Vol.II, P.415: ``Sometimes the mortgagee sells, with or without the concurrence of the liquidator, in exercise of a power of sale vested in him by the mortgage. It is not necessary to obtain liberty to exercise the power of sale, although orders giving such liberty have sometimes been made. The secured creditor is thus outside the winding up and can realise his security without the leave of the winding-up Court, though if he files a suit or takes other legal proceedings for the realisation of his security he is bound under S. 231 (corresponding with S. 171, Indian Companies Act) to obtain the leave of the winding-up Court before he can do so although such leave would almost automatically be granted. Section 231 has been read together with S. 228(1) and the attachment, sequestration, distress or execution referred to in the latter have reference to proceedings taken through the Court and if the creditor has resorted those proceedings he cannot put them in force against the estate or effects of the Company after the commencement of the winding up without the leave of the winding-up Court. The provisions in S. 317 are also supplementary to the provisions of S. 231 and emphasise the position of the secured creditor as one outside the winding up, the second creditor being, in regard to the exercise of those rights and privileges, in the same position as he would be under the Bankruptcy Act. The corresponding provisions of the Indian Companies Act have been almost bodily incorporated from those of the English Companies Act and if there was nothing more, the position of the secured creditor here also would be the same as that obtaining in England and he would also be outside the winding up and a sale by him without the intervention of the Court would be valid and could not be challenged as valid and could not be challenged as void under S. 232(I), Indian Companies Act. 14. That case no doubt dealt with the fore-runner to Section 446, namely, Section 171 of the Indian Companies Act, 1913. But that does matter. 15. In this case the appellant is admittedly a secured creditor. It sues on a mortgage by deposit of title deeds. Such a suit is not likely to involve a long drawn out trial. On the scope of Section 446(2) of the Act, this Court had occasion to observe in Sudarsan Chits (I) Ltd. (supra), at page 1582, in paragraph 10: ``Sub-section (2) of Section 446 confers jurisdiction on the Court which is winding up the company to entertain and dispose of proceedings set out in clauses (a) to (d). The expression `Court which is winding-up the company will comprehend the court before which a winding up petition is pending or which has made an order for winding up of the company and further winding up proceedings are continued under its directions. Undoubtedly, looking to the language of Section 446(1) and (2) and its setting in Part VII which deals with winding-up proceedings would clearly show that the jurisdiction of the Court entertain and dispose of proceedings set out in sub-cls. (a) to (d) of sub-sec. (2) can be invoked in the Court which is winding up the company. 16. Without intending to lay down the law broadly but confining only to the facts of this case, we feel that the order or transfer of the suits to the High Court of Bombay cannot be supported. We are unable to uphold the finding of the High Court when it observed: ``On examination of facts and circumstances of the case, I am of the opinion that defending at a far distance in the Court of Additional Subordinate Judge, Rangareddy District at Saroor Nagar in Andhra Pradesh is going to be more expensive than if the said suits are continued and tried in this Court on the same being transferred to this Court. It is neither convenient nor proper that the official Liquidator appointed Liquidator of the Respondent No. 1 should be asked to defend the said suits in that Court since the wasteful expenditure is to be avoided. 17. This transfer will result in greater expenditure to the appellant Bank which certainly is avoidable "than the wasteful expenditure to the Official Liquidator. | 1[ds]As far as matters which could be expeditiously and cheaply decided by the Company Court. In granting leave under this Section, the court always takes into consideration whether the company is likely to be exposed to unnecessary litigation and cost.That case no doubt dealt with theto Section 446, namely, Section 171 of the Indian Companies Act, 1913. But that does matter.In this case the appellant is admittedly a secured creditor. It sues on a mortgage by deposit of title deeds. Such a suit is not likely to involve a long drawn out trial.Without intending to lay down the law broadly but confining only to the facts of this case, we feel that the order or transfer of the suits to the High Court of Bombay cannot be supported. We are unable to uphold the finding of the High Court when itexamination of facts and circumstances of the case, I am of the opinion that defending at a far distance in the Court of Additional Subordinate Judge, Rangareddy District at Saroor Nagar in Andhra Pradesh is going to be more expensive than if the said suits are continued and tried in this Court on the same being transferred to this Court. It is neither convenient nor proper that the official Liquidator appointed Liquidator of the Respondent No. 1 should be asked to defend the said suits in that Court since the wasteful expenditure is to be avoided.This transfer will result in greater expenditure to the appellant Bank which certainly is avoidable "than the wasteful expenditure to the Official Liquidator. | 1 | 2,266 | 279 | ### Instruction:
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protection is indispensable equally in winding-up and in bankruptcy to prevent a scramble for the assets, but it is not always enough. An even-handed justice requires that the Court should have power to intervene at an early stage for the protection of the assets, and this power is given by this section. 13. This Section aims at safeguarding the assets of a company in winding-up against wasteful or expensive litigation. As far as matters which could be expeditiously and cheaply decided by the Company Court. In granting leave under this Section, the court always takes into consideration whether the company is likely to be exposed to unnecessary litigation and cost. The position of secured creditor came to be decided by this Court in M.K. Ranganathan (supra). At pages 607 and 608, in paragraphs 15 and 16 it was held: "The position of a secured creditor in the winding up of a company has been thus stated by Lord Wrenbury in -`Food Controller v. Cork 1923 AC 647 (A) : ``The phrase outside the winding up `is an intelligible phrase if used, as it often is, with reference to a secured creditor, say a mortgages. The mortgagee of a company in liquidation is in a position to say ``the mortgaged property is to the extent of the mortgage my property. It is immaterial to me whether my mortgage is in winding up or not. I remain outside the `winding up and shall enforce my rights as mortgagee. This is to be contrasted with the case in which such a creditor prefers to assert his right, not as a mortgagee, but as a creditor. If so he comes into the winding up. It is also summarised in Palmers Company Precedents, Vol.II, P.415: ``Sometimes the mortgagee sells, with or without the concurrence of the liquidator, in exercise of a power of sale vested in him by the mortgage. It is not necessary to obtain liberty to exercise the power of sale, although orders giving such liberty have sometimes been made. The secured creditor is thus outside the winding up and can realise his security without the leave of the winding-up Court, though if he files a suit or takes other legal proceedings for the realisation of his security he is bound under S. 231 (corresponding with S. 171, Indian Companies Act) to obtain the leave of the winding-up Court before he can do so although such leave would almost automatically be granted. Section 231 has been read together with S. 228(1) and the attachment, sequestration, distress or execution referred to in the latter have reference to proceedings taken through the Court and if the creditor has resorted those proceedings he cannot put them in force against the estate or effects of the Company after the commencement of the winding up without the leave of the winding-up Court. The provisions in S. 317 are also supplementary to the provisions of S. 231 and emphasise the position of the secured creditor as one outside the winding up, the second creditor being, in regard to the exercise of those rights and privileges, in the same position as he would be under the Bankruptcy Act. The corresponding provisions of the Indian Companies Act have been almost bodily incorporated from those of the English Companies Act and if there was nothing more, the position of the secured creditor here also would be the same as that obtaining in England and he would also be outside the winding up and a sale by him without the intervention of the Court would be valid and could not be challenged as valid and could not be challenged as void under S. 232(I), Indian Companies Act. 14. That case no doubt dealt with the fore-runner to Section 446, namely, Section 171 of the Indian Companies Act, 1913. But that does matter. 15. In this case the appellant is admittedly a secured creditor. It sues on a mortgage by deposit of title deeds. Such a suit is not likely to involve a long drawn out trial. On the scope of Section 446(2) of the Act, this Court had occasion to observe in Sudarsan Chits (I) Ltd. (supra), at page 1582, in paragraph 10: ``Sub-section (2) of Section 446 confers jurisdiction on the Court which is winding up the company to entertain and dispose of proceedings set out in clauses (a) to (d). The expression `Court which is winding-up the company will comprehend the court before which a winding up petition is pending or which has made an order for winding up of the company and further winding up proceedings are continued under its directions. Undoubtedly, looking to the language of Section 446(1) and (2) and its setting in Part VII which deals with winding-up proceedings would clearly show that the jurisdiction of the Court entertain and dispose of proceedings set out in sub-cls. (a) to (d) of sub-sec. (2) can be invoked in the Court which is winding up the company. 16. Without intending to lay down the law broadly but confining only to the facts of this case, we feel that the order or transfer of the suits to the High Court of Bombay cannot be supported. We are unable to uphold the finding of the High Court when it observed: ``On examination of facts and circumstances of the case, I am of the opinion that defending at a far distance in the Court of Additional Subordinate Judge, Rangareddy District at Saroor Nagar in Andhra Pradesh is going to be more expensive than if the said suits are continued and tried in this Court on the same being transferred to this Court. It is neither convenient nor proper that the official Liquidator appointed Liquidator of the Respondent No. 1 should be asked to defend the said suits in that Court since the wasteful expenditure is to be avoided. 17. This transfer will result in greater expenditure to the appellant Bank which certainly is avoidable "than the wasteful expenditure to the Official Liquidator.
### Response:
1
### Explanation:
As far as matters which could be expeditiously and cheaply decided by the Company Court. In granting leave under this Section, the court always takes into consideration whether the company is likely to be exposed to unnecessary litigation and cost.That case no doubt dealt with theto Section 446, namely, Section 171 of the Indian Companies Act, 1913. But that does matter.In this case the appellant is admittedly a secured creditor. It sues on a mortgage by deposit of title deeds. Such a suit is not likely to involve a long drawn out trial.Without intending to lay down the law broadly but confining only to the facts of this case, we feel that the order or transfer of the suits to the High Court of Bombay cannot be supported. We are unable to uphold the finding of the High Court when itexamination of facts and circumstances of the case, I am of the opinion that defending at a far distance in the Court of Additional Subordinate Judge, Rangareddy District at Saroor Nagar in Andhra Pradesh is going to be more expensive than if the said suits are continued and tried in this Court on the same being transferred to this Court. It is neither convenient nor proper that the official Liquidator appointed Liquidator of the Respondent No. 1 should be asked to defend the said suits in that Court since the wasteful expenditure is to be avoided.This transfer will result in greater expenditure to the appellant Bank which certainly is avoidable "than the wasteful expenditure to the Official Liquidator.
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Smt. Laxmi Devi Vs. Sethani Mukand Kanwar & Two Others | Indra Narain v. Muhammad Ismail, ILR (1939) All 885 : (AIR 1939 All 637) and Municipal Board, Cawnpore v. Roop Chand Jain, ILR (1940) All 669 : (AIR 1940 All 456 ). In the first decision, the Allahabad High Court had taken the view that auction sales do not fall within the purview of the latter part of S. 100, while in the latter case, a contrary view had been accepted. The Full Bench preferred the latter view to the former. Since this Full Bench decision was pronounced in the Allahabad High Court, auction-purchasers have been consistently held to fall under the latter part of S. 100. It has been held by the Full Bench that when the relevant clause in the latter part of S. 100 speak of any property, in the hands of person to whom such property has been transferred, the concept of transfer is wide enough to include transfers effected by acts of parties as well as transfers effected by operation of law. The same view has been accepted by the Patna High court in R.L. Nandkeolyar v. Sultan Jehan, LR 31 Pat 722 : (AIR 1953 Pat 58 ), and by the Punjab High Court in Manna Singh v. Wasti Ram Saraf, AIR 1960 Punj 296. The decision of the Madras High Court in Surayya v. Vankatarmanamma AIR 1940 Mad 701 and the decision of the Calcutta High Court in Creet v. Ganga Ram Gool Rai, ILR (1937) 1 Ca1 203 : (AIR 1937 Cal 129 ) which appear to support the contrary view do not, in our opinion, correctly represent the true legal position in this matter. Therefore, we must deal with the present appeal on the basis that as a result of the failure of the proclamation to refer to the charge in favour of respondent No. 1, she would not be able to enforce her charge against the property purchased by the appellant by auction sale; and that means that the impugned sale has been conducted in a materially irregular manner and as a consequence of the said irregularity, some injury has resulted to respondent No. 1.18. That raises the question as to whether the said injury can be said to amount to substantial injury within the meaning of proviso to O. 21 R. 90(1); and this inevitably would be a question of fact. The High court appears to have held that as soon as it is shown that the charge would become unenforceable against the appellant auction-purchaser by virtue of the provisions of S. 100, it follows as a matter of law that respondent No. 1 has suffered substantial injury, and so, the impugned sale must be set aside. We are not prepared to accept this view. We do not think it can be reasonably assumed as a matter of law that in every case where a charge has become unenforceable against an auction purchaser by reason of the fact that it was not shown in the proclamation preceding the auction sale, it follows that the charge-holder has suffered substantial injury. Whether or not the injury suffered by the charge-holder is substantial, must depend upon several relevant facts. How many properties have been sold at the auction sale; how many out of them were the subject-matter of the charge; what is the extent of the claim which the charge-holder can legitimately expect to enforce against the properties charged, these and other relevant matters must be considered before deciding whether or not the injury suffered by the charge-holder is substantial. It is from this point of view that the material facts in the present case must now be considered.19. Properties which are the subject matter of the charge are five in number. Out of these properties, it is property No. 3 alone which has been sold at auction sale. It appears that properties Nos, 1 and 2 had already ceased to be available to the charge-holder, and so, the consideration of the question as to whether the injury suffered by respondent No. 1 is substantial, must depend upon the relative values of properties Nos. 4 and 6. This question has been considered by the Executing Court when the matter was sent back to that Court by the Judicial Commissioner and the Executing Court made a definite finding that the injury suffered by respondent No. 1 cannot be said to be substantial. According to it, properties Nos. 4 and 6 which would be available to respondent No. 1 would be enough to meet all her legitimate claims against the judgment debtor, respondent No. 3. The value of property No. 4 is Rs. 1,18,967/-, whereas the value of property No. 6 is Rs. 1,25,464 / -. The Executing Court has taken into account the amount which respondent No. 1 is entitled to claim by way of maintenance from respondent No. 3, has also borne in mind the fact that respondent No. 1 is an old lady past 70 years of age, and has come to the conclusion that, on the whole, the sale of property No. 3 to the auction-purchaser cannot be said to have caused substantial injury to her.In our opinion, it is difficult to differ from this conclusion; and so, it follows that though respondent No. 1 has been able to show that her charge could not be enforced against the appellant, it is not shown that this circumstance has caused substantial injury to her. The result, therefore, is that the requirement of the proviso to O. 21, R. 90 of the Code is not satisfied in the present case.20. We ought to add that pending the appeal before this Court, respondent No. 3, Umrao Mal has died leaving behind him his mother respondent No. 1 and his widow, and the estate of Umrao Mal has devolved on these two widows; and so, respondent No. 1 has now become the owner of part of the properties against which she would otherwise have been entitled to proceed in execution of her maintenance decree.21 | 1[ds]18. That raises the question as to whether the said injury can be said to amount to substantial injury within the meaning of proviso to O. 21 R. 90(1); and this inevitably would be a question of fact. The High court appears to have held that as soon as it is shown that the charge would become unenforceable against the appellant auction-purchaser by virtue of the provisions of S. 100, it follows as a matter of law that respondent No. 1 has suffered substantial injury, and so, the impugned sale must be set aside. We are not prepared to accept this view. We do not think it can be reasonably assumed as a matter of law that in every case where a charge has become unenforceable against an auction purchaser by reason of the fact that it was not shown in the proclamation preceding the auction sale, it follows that the charge-holder has suffered substantial injury. Whether or not the injury suffered by the charge-holder is substantial, must depend upon several relevant facts. How many properties have been sold at the auction sale; how many out of them were the subject-matter of the charge; what is the extent of the claim which the charge-holder can legitimately expect to enforce against the properties charged, these and other relevant matters must be considered before deciding whether or not the injury suffered by the charge-holder is substantial. It is from this point of view that the material facts in the present case must now be considered.19. Properties which are the subject matter of the charge are five in number. Out of these properties, it is property No. 3 alone which has been sold at auction sale. It appears that properties Nos, 1 and 2 had already ceased to be available to the charge-holder, and so, the consideration of the question as to whether the injury suffered by respondent No. 1 is substantial, must depend upon the relative values of properties Nos. 4 and 6. This question has been considered by the Executing Court when the matter was sent back to that Court by the Judicial Commissioner and the Executing Court made a definite finding that the injury suffered by respondent No. 1 cannot be said to be substantial. According to it, properties Nos. 4 and 6 which would be available to respondent No. 1 would be enough to meet all her legitimate claims against the judgment debtor, respondent No. 3. The value of property No. 4 is Rs. 1,18,967/-, whereas the value of property No. 6 is Rs. 1,25,464 / -. The Executing Court has taken into account the amount which respondent No. 1 is entitled to claim by way of maintenance from respondent No. 3, has also borne in mind the fact that respondent No. 1 is an old lady past 70 years of age, and has come to the conclusion that, on the whole, the sale of property No. 3 to the auction-purchaser cannot be said to have caused substantial injury to her.In our opinion, it is difficult to differ from this conclusion; and so, it follows that though respondent No. 1 has been able to show that her charge could not be enforced against the appellant, it is not shown that this circumstance has caused substantial injury to her. The result, therefore, is that the requirement of the proviso to O. 21, R. 90 of the Code is not satisfied in the present case.20. We ought to add that pending the appeal before this Court, respondent No. 3, Umrao Mal has died leaving behind him his mother respondent No. 1 and his widow, and the estate of Umrao Mal has devolved on these two widows; and so, respondent No. 1 has now become the owner of part of the properties against which she would otherwise have been entitled to proceed in execution of her maintenanceargument is based on the latter part of S. 100 of the Transfer of Property Act. We will presently refer to this provision. At this stage, it is enough to state that if Mr. Sharma is right in contending that an auction sale of immoveable property which has followed the proclamation issued under O. 21 R. 66 in which no reference to a charge is made, materially affects the rights of thesome injury would automatically flow from the irregularity alleged in the application filed by respondent No. 1, and so, it would not be appropriate to hold that the said application should be dismissed on the ground that no substantial injury has been alleged as required by the proviso to O. 21 R 90 (1).10. It is true that before an application made under O.21, R.90 can succeed, the applicant has to show that the impugned sale was vitiated by a material irregularity or fraud in publishing or conducting it; and as required by the proviso, it is also necessary that he should show that in consequence of the said irregularity or fraud, he had sustained substantial injury. Therefore, Mr. Bishan Narain is right when he contends that the application made by respondent No. 1 ought to contain an allegation in regard to the material irregularity as well as an allegation as to substantial injury. But, in our opinion, in a case like the present where substantial injury is alleged to be implicit in the material irregularity set out in the application, it would be too technical to hold that the application should be dismissed on the preliminary ground that no specific or express averment has been made as to substantial injury suffered by respondent No.effect of this provision is that the provisions of the Transfer of Property Act will not apply to any transfer by operation of law or by, or in execution of, a decree or order of a Court of competent jurisdiction. This provision is clear and emphatic. It says that nothing in the Transfer of Property Act will apply to the transfers just indicated, and that would naturally take in the whole of S. 100. But there is an exception made to this provision by S. 2 (d) itself by the saving clause, and this exception covers cases provided by S. 57 and Chapter IV, Chapter IV deals with mortgages of immoveable property and charges, and includes sections 58 to 104. Section 100, therefore, falls within Chapter IV; and the result of the saving clause is that S. 100 would apply to transfers by operation of law. There is, therefore, no doubt that if the question as to the applicability of the latter part of S. 100 to cases of auction sales had to be determined only by reference to S. 2(d), the answer would clearly be in favour of such applicability.This position, however, has become somewhat complicated by reason of the provisions contained in S.5 of the Transfer of Property Act, Section 5 provides, inter alia, that in the following sections "transfer of property" means an act by which a living person conveys property, in present or in future, to one or more other living persons. In other words, in terms, the definition of the expression "transfer of property" as used in all the sections of the Transfer of Property Act is intended to take in transfers effected by acts of parties inter virus, and anclearly is not such an act. Section 5 would, therefore, appear to exclude auction sales from the purview of S.100 altogether. This result would appear to be consistent with the provision in the preamble of the Act which says that the Transfer of Property Act was enacted because it was thought expedient to define and amend certain parts of the law relating to the transfer of property by act of parties. That is the position which emerges from the reading of S. 5 coupled with the preamble; and that natrually raises the question as to how to reconcile these two inconsistent positions.16. In our opinion, the positive provision contained in S. 2(d) must prevail over the definition of "transfer of property" prescribed by S. 5. No doubt the purpose of the definition is to indicate the class of transfers to which the provisions of the Transfer of Property Act are intended to be applied; but a definition of this kind cannotthe clear and positive direction contained in the specific words used by S. 2(d). As we have already seen, the result of the saving clause enacted by S. 2(d) is to emphasise the fact that the provisions of S. 57 and those contained in Chapter IV must apply to transfer by operation of law. Such a positive provision cannot be made to yield to what may appear to be the effect of the definition prescribed by S. 5; cannot and so, we are inclined to hold that notwithstanding the definition prescribed by S. 5, the latter part of S. 100 must be deemed to include auction sales.17. This question has been considered by our High Courts on several occasions, and, on the whole, the majority view appears to be in favour of the conclusion which we have justwe must deal with the present appeal on the basis that as a result of the failure of the proclamation to refer to the charge in favour of respondent No. 1, she would not be able to enforce her charge against the property purchased by the appellant by auction sale; and that means that the impugned sale has been conducted in a materially irregular manner and as a consequence of the said irregularity, some injury has resulted to respondent No. 1.We ought to add that pending the appeal before this Court, respondent No. 3, Umrao Mal has died leaving behind him his mother respondent No. 1 and his widow, and the estate of Umrao Mal has devolved on these two widows; and so, respondent No. 1 has now become the owner of part of the properties against which she would otherwise have been entitled to proceed in execution of her maintenance | 1 | 4,619 | 1,850 | ### Instruction:
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Indra Narain v. Muhammad Ismail, ILR (1939) All 885 : (AIR 1939 All 637) and Municipal Board, Cawnpore v. Roop Chand Jain, ILR (1940) All 669 : (AIR 1940 All 456 ). In the first decision, the Allahabad High Court had taken the view that auction sales do not fall within the purview of the latter part of S. 100, while in the latter case, a contrary view had been accepted. The Full Bench preferred the latter view to the former. Since this Full Bench decision was pronounced in the Allahabad High Court, auction-purchasers have been consistently held to fall under the latter part of S. 100. It has been held by the Full Bench that when the relevant clause in the latter part of S. 100 speak of any property, in the hands of person to whom such property has been transferred, the concept of transfer is wide enough to include transfers effected by acts of parties as well as transfers effected by operation of law. The same view has been accepted by the Patna High court in R.L. Nandkeolyar v. Sultan Jehan, LR 31 Pat 722 : (AIR 1953 Pat 58 ), and by the Punjab High Court in Manna Singh v. Wasti Ram Saraf, AIR 1960 Punj 296. The decision of the Madras High Court in Surayya v. Vankatarmanamma AIR 1940 Mad 701 and the decision of the Calcutta High Court in Creet v. Ganga Ram Gool Rai, ILR (1937) 1 Ca1 203 : (AIR 1937 Cal 129 ) which appear to support the contrary view do not, in our opinion, correctly represent the true legal position in this matter. Therefore, we must deal with the present appeal on the basis that as a result of the failure of the proclamation to refer to the charge in favour of respondent No. 1, she would not be able to enforce her charge against the property purchased by the appellant by auction sale; and that means that the impugned sale has been conducted in a materially irregular manner and as a consequence of the said irregularity, some injury has resulted to respondent No. 1.18. That raises the question as to whether the said injury can be said to amount to substantial injury within the meaning of proviso to O. 21 R. 90(1); and this inevitably would be a question of fact. The High court appears to have held that as soon as it is shown that the charge would become unenforceable against the appellant auction-purchaser by virtue of the provisions of S. 100, it follows as a matter of law that respondent No. 1 has suffered substantial injury, and so, the impugned sale must be set aside. We are not prepared to accept this view. We do not think it can be reasonably assumed as a matter of law that in every case where a charge has become unenforceable against an auction purchaser by reason of the fact that it was not shown in the proclamation preceding the auction sale, it follows that the charge-holder has suffered substantial injury. Whether or not the injury suffered by the charge-holder is substantial, must depend upon several relevant facts. How many properties have been sold at the auction sale; how many out of them were the subject-matter of the charge; what is the extent of the claim which the charge-holder can legitimately expect to enforce against the properties charged, these and other relevant matters must be considered before deciding whether or not the injury suffered by the charge-holder is substantial. It is from this point of view that the material facts in the present case must now be considered.19. Properties which are the subject matter of the charge are five in number. Out of these properties, it is property No. 3 alone which has been sold at auction sale. It appears that properties Nos, 1 and 2 had already ceased to be available to the charge-holder, and so, the consideration of the question as to whether the injury suffered by respondent No. 1 is substantial, must depend upon the relative values of properties Nos. 4 and 6. This question has been considered by the Executing Court when the matter was sent back to that Court by the Judicial Commissioner and the Executing Court made a definite finding that the injury suffered by respondent No. 1 cannot be said to be substantial. According to it, properties Nos. 4 and 6 which would be available to respondent No. 1 would be enough to meet all her legitimate claims against the judgment debtor, respondent No. 3. The value of property No. 4 is Rs. 1,18,967/-, whereas the value of property No. 6 is Rs. 1,25,464 / -. The Executing Court has taken into account the amount which respondent No. 1 is entitled to claim by way of maintenance from respondent No. 3, has also borne in mind the fact that respondent No. 1 is an old lady past 70 years of age, and has come to the conclusion that, on the whole, the sale of property No. 3 to the auction-purchaser cannot be said to have caused substantial injury to her.In our opinion, it is difficult to differ from this conclusion; and so, it follows that though respondent No. 1 has been able to show that her charge could not be enforced against the appellant, it is not shown that this circumstance has caused substantial injury to her. The result, therefore, is that the requirement of the proviso to O. 21, R. 90 of the Code is not satisfied in the present case.20. We ought to add that pending the appeal before this Court, respondent No. 3, Umrao Mal has died leaving behind him his mother respondent No. 1 and his widow, and the estate of Umrao Mal has devolved on these two widows; and so, respondent No. 1 has now become the owner of part of the properties against which she would otherwise have been entitled to proceed in execution of her maintenance decree.21
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presently refer to this provision. At this stage, it is enough to state that if Mr. Sharma is right in contending that an auction sale of immoveable property which has followed the proclamation issued under O. 21 R. 66 in which no reference to a charge is made, materially affects the rights of thesome injury would automatically flow from the irregularity alleged in the application filed by respondent No. 1, and so, it would not be appropriate to hold that the said application should be dismissed on the ground that no substantial injury has been alleged as required by the proviso to O. 21 R 90 (1).10. It is true that before an application made under O.21, R.90 can succeed, the applicant has to show that the impugned sale was vitiated by a material irregularity or fraud in publishing or conducting it; and as required by the proviso, it is also necessary that he should show that in consequence of the said irregularity or fraud, he had sustained substantial injury. Therefore, Mr. Bishan Narain is right when he contends that the application made by respondent No. 1 ought to contain an allegation in regard to the material irregularity as well as an allegation as to substantial injury. But, in our opinion, in a case like the present where substantial injury is alleged to be implicit in the material irregularity set out in the application, it would be too technical to hold that the application should be dismissed on the preliminary ground that no specific or express averment has been made as to substantial injury suffered by respondent No.effect of this provision is that the provisions of the Transfer of Property Act will not apply to any transfer by operation of law or by, or in execution of, a decree or order of a Court of competent jurisdiction. This provision is clear and emphatic. It says that nothing in the Transfer of Property Act will apply to the transfers just indicated, and that would naturally take in the whole of S. 100. But there is an exception made to this provision by S. 2 (d) itself by the saving clause, and this exception covers cases provided by S. 57 and Chapter IV, Chapter IV deals with mortgages of immoveable property and charges, and includes sections 58 to 104. Section 100, therefore, falls within Chapter IV; and the result of the saving clause is that S. 100 would apply to transfers by operation of law. There is, therefore, no doubt that if the question as to the applicability of the latter part of S. 100 to cases of auction sales had to be determined only by reference to S. 2(d), the answer would clearly be in favour of such applicability.This position, however, has become somewhat complicated by reason of the provisions contained in S.5 of the Transfer of Property Act, Section 5 provides, inter alia, that in the following sections "transfer of property" means an act by which a living person conveys property, in present or in future, to one or more other living persons. In other words, in terms, the definition of the expression "transfer of property" as used in all the sections of the Transfer of Property Act is intended to take in transfers effected by acts of parties inter virus, and anclearly is not such an act. Section 5 would, therefore, appear to exclude auction sales from the purview of S.100 altogether. This result would appear to be consistent with the provision in the preamble of the Act which says that the Transfer of Property Act was enacted because it was thought expedient to define and amend certain parts of the law relating to the transfer of property by act of parties. That is the position which emerges from the reading of S. 5 coupled with the preamble; and that natrually raises the question as to how to reconcile these two inconsistent positions.16. In our opinion, the positive provision contained in S. 2(d) must prevail over the definition of "transfer of property" prescribed by S. 5. No doubt the purpose of the definition is to indicate the class of transfers to which the provisions of the Transfer of Property Act are intended to be applied; but a definition of this kind cannotthe clear and positive direction contained in the specific words used by S. 2(d). As we have already seen, the result of the saving clause enacted by S. 2(d) is to emphasise the fact that the provisions of S. 57 and those contained in Chapter IV must apply to transfer by operation of law. Such a positive provision cannot be made to yield to what may appear to be the effect of the definition prescribed by S. 5; cannot and so, we are inclined to hold that notwithstanding the definition prescribed by S. 5, the latter part of S. 100 must be deemed to include auction sales.17. This question has been considered by our High Courts on several occasions, and, on the whole, the majority view appears to be in favour of the conclusion which we have justwe must deal with the present appeal on the basis that as a result of the failure of the proclamation to refer to the charge in favour of respondent No. 1, she would not be able to enforce her charge against the property purchased by the appellant by auction sale; and that means that the impugned sale has been conducted in a materially irregular manner and as a consequence of the said irregularity, some injury has resulted to respondent No. 1.We ought to add that pending the appeal before this Court, respondent No. 3, Umrao Mal has died leaving behind him his mother respondent No. 1 and his widow, and the estate of Umrao Mal has devolved on these two widows; and so, respondent No. 1 has now become the owner of part of the properties against which she would otherwise have been entitled to proceed in execution of her maintenance
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Moti Lal Vs. Chandra Pratap Tiwari & Others | pamphlet Ext. P-4 over which there was a writing said to be in the hand of Indramani Prasad. The writing was an account of money distributed to 11 persons. It was not signed by Indramani Prasad but purported to contain the acknowledgements of the receipt of money by various electors. Many of them were examined as witnesses on behalf of respondent no, 1. Only one was examined on behalf of the appellant. He was Bhagwandin, P.W. 9. The High Court has held that it was very doubtful whether the writings on the pamphlet P-4 were in the pen of Indramani Prasad. It was not proved to be so. We see no justifiable reason to enable us to unset the findings of the High Court in regard to the alleged commission of the corrupt practice bribery by respondent no. 1 through Indramani Prasad. No adverse inference was at all possible to be drawn against respondent no. 1 for non-examination of Indramani Prasad as a witness in the case.10. The next set of issues are the following :"4 (a) Whether Kedarnath was an agent and worker of respondent no. 1 during the period from 5-3-1972 to 8-3-1972?(b)Whether during the period from 5-3-1972 to 8-3-1972 Kedarnath with the consent of respondent no. 1 distributed a sum of Rs. 1,000/- to the electors of the village Dhumma specified in paragraph 5 (C) of the petition?(c) Whether Kedarnath further demanded a sum of Rs. 1,000/- for being distributed among the electors in order to induce them to vote for the respondent no. 1 by letter dated 8-3-1972?".11. The High Court has rightly rejected the evidence adduced on behalf of the appellant with reference to these issues also. As in the case of Manbodhi so also in regard to Kedarnath in a dramatised fashion a letter is said to have been written by him on 8-3-1972 demanding a sum of Rs, 1,000/- from respondent no. 1 for being distributed among the electors in order to induce them to vote for him. This letter is also said to have been intercepted and ultimately reached the hands of the appellantIt is Ext P-5- Such a crude attempt to prove charges of bribery was bound to fail and has rightly failed in the High Court.12. The last and the fourth set of issues decided against the appellant and pressed for our consideration is the following"8 (a) Whether Rao Saheb Rampur Naikin was an agent and worker of respondent no. 1?(b) Whether Rao Saheb Rampur Naikin with the consent of respondent no. 1 published a pamphlet under the caption "Churhat Kshetra Ke Matadataon Se Appeal" and thereby exercised undue influence on the electors? ,(c) Whether between 3-3-1972 to 9-3-1972 the aforesaid pamphlet was widely distributed in all the villages which originally comprised the Ilaka Rampur Naikin by Shankereshwar Pratap Singh son of Rao Saheb Rampur Naikin?9. Whether Shankereshwar Pratap Singh was agent and worker of the respondent no, 1 during the period and he distributed the pamphlets with the consent of respondent no. 1?10. Whether respondent no. 1 in the company of Shankereshwar Pratap Singh distributed the aforesaid pamphlet in villages Rampur, Murtala, Baghwar, Sikargani, Bagher, Amlai and Kandhwar on 8-3-1972?11. Whether on 8-3-1972 Shankereshwar Pratap Singh threatened the voters of villages Kandhwar, Bagher and Dabaiya Tola belonging to Thakur community that they would be ex-communicated if they voted for the independent candidate Shyamlal and did not vote for the respondent no. 1?12. Whether the aforesaid threats were given by Shankereshwar Pratap singh with, the consent of respondent no. 1 in his presence and hearings?13. Whether Rao Saheb Rampur Naikin threatened the Thakur voters of village Rampur on 7-3-1972 that they will be ex-communicated if they did not vote for the respondent no. 1? ,14. Whether these threats were given by Rao Saheb Rampur Naikin with the consent of respondent no. 1 for furtherance of his election?15. Whether the aforesaid threats were given by Rao Saheb Rampur Naikin at a meeting convened on 7-3-1972 in which the persons mentioned in paragraph 7 (F) of the petition were specially called?16. Whether the respondent no. 1 thus committed corrupt practice of " undue influence under Section 123 (2) of the Representation of the People Act for furtherance of his election, and as such his election is liable to be set aside?"13. The High Court has held:(1) "There is no doubt that a pamphlet (Ext. P-7) was published and the publisher was shown to be Rao Saheb of Rampur."(2) it is not true that the Rao Saheb an old man moved in the company of respondent no. 1 to help him in the, election.(3) That the pamph1et published by Rao Saheb of Rampur or purporting to have been published on his be- half was not meant to advance the case of respondent no. 1 at the election.14. It is not necessary to state all the findings of the High Court which were against the appellant. Suffice it to say that no fact in regard to the above issues was found in favour of the appellant by the High Court to prove the charge of exercise of undue influence under Section 123 (2) of the Act. We may rest content by merely observing that the High Court has rightly found that the contents of the pamphlet (Ext. P-7) were not such as to prove the case of undue influence under S. 123 (2). The contents are quoted in the judgment of the High Court We find no threat or words in the pamphlet to enable us to hold that under influence i.e- to say any direct or. indirect interference or attempt to interfere on the part of respondent no. 1 was exercised or made with a free exercise of any electoral right .The pamphlet did not plead the case of respondent no, 1 or his party on whose ticket he was contesting the election, We have, therefore, no difficu1iy in rejecting the argument put forward on behalf of the appellant in this regard too. | 0[ds]We see no justifiable reason to enable us to unset the findings of the High Court in regard to the alleged commission of the corrupt practice bribery by respondent no. 1 through Indramani Prasad. No adverse inference was at all possible to be drawn against respondent no. 1 forof Indramani Prasad as a witness in theacted as a polling agent for respondent no, 1 onat some booth. He was so appointed by one of the trusted workers of respondent no. 1 to whom signed blank forms for appointing polling agents had been entrusted. It was not however, proved that Manbodhi had worked for respondent no. 1 at the time of canvassing of the votes or had distributed any money to the electors for inducing them to vote for respondent no. 1. The letter datedsaid to have been written by Manbodhi has not been found to be a genuine document. It appears to us that the whole drama in connection with the said letter was engineered by or on behalf of the appellant with the help of Shyamlal and his associates. It was a fantastic story that such a letter was written by Manbodhi and was successfully intercepted so as to reach the hands of the election petitioner. This Court is loathe to interfere with the findings of fact recorded by the High Court chiefly when such finding are based on appreciation of the oral evidence. Having perused the judgment of the High Court and the relevant pieces of evidence of certain witnesses examined on behalf of the appellant and respondent no. 1 we could see no infirmity in the decision of the issues aforesaid.Great stress was laid on behalf of the appellant for drawing adverse inference against respondent no, 1 forof Manbodhi to controvert the facts alleged by the appellants witnesses in their evidence.It appears to us that the part played by Manbodhi in the drama of bringing into existence the letter purported to be datedwas such that respondent no. 1 could not be expected to take the risk of examining him as his witness in court. No onus was cast upon him to prove any such fact that would entitle the Court to draw an adverse inference against him forof Manbodhi, In the alternative it was submitted that Manbodhi ought to have been examined as a court witness. We do not think that on the facts and in the circumstance of this case the Court was obliged to do so.It is not necessary to state all the findings of the High Court which were against the appellant. Suffice it to say that no fact in regard to the above issues was found in favour of the appellant by the High Court to prove the charge of exercise of undue influence under Section 123 (2) of the Act. We may rest content by merely observing that the High Court has rightly found that the contents of the pamphlet (Ext.were not such as to prove the case of undue influence under S. 123 (2). The contents are quoted in the judgment of the High Court We find no threat or words in the pamphlet to enable us to hold that under influence i.eto say any direct or. indirect interference or attempt to interfere on the part of respondent no. 1 was exercised or made with a free exercise of any electoral right .The pamphlet did not plead the case of respondent no, 1 or his party on whose ticket he was contesting the election, We have, therefore, no difficu1iy in rejecting the argument put forward on behalf of the appellant in this regard too. | 0 | 2,614 | 643 | ### Instruction:
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pamphlet Ext. P-4 over which there was a writing said to be in the hand of Indramani Prasad. The writing was an account of money distributed to 11 persons. It was not signed by Indramani Prasad but purported to contain the acknowledgements of the receipt of money by various electors. Many of them were examined as witnesses on behalf of respondent no, 1. Only one was examined on behalf of the appellant. He was Bhagwandin, P.W. 9. The High Court has held that it was very doubtful whether the writings on the pamphlet P-4 were in the pen of Indramani Prasad. It was not proved to be so. We see no justifiable reason to enable us to unset the findings of the High Court in regard to the alleged commission of the corrupt practice bribery by respondent no. 1 through Indramani Prasad. No adverse inference was at all possible to be drawn against respondent no. 1 for non-examination of Indramani Prasad as a witness in the case.10. The next set of issues are the following :"4 (a) Whether Kedarnath was an agent and worker of respondent no. 1 during the period from 5-3-1972 to 8-3-1972?(b)Whether during the period from 5-3-1972 to 8-3-1972 Kedarnath with the consent of respondent no. 1 distributed a sum of Rs. 1,000/- to the electors of the village Dhumma specified in paragraph 5 (C) of the petition?(c) Whether Kedarnath further demanded a sum of Rs. 1,000/- for being distributed among the electors in order to induce them to vote for the respondent no. 1 by letter dated 8-3-1972?".11. The High Court has rightly rejected the evidence adduced on behalf of the appellant with reference to these issues also. As in the case of Manbodhi so also in regard to Kedarnath in a dramatised fashion a letter is said to have been written by him on 8-3-1972 demanding a sum of Rs, 1,000/- from respondent no. 1 for being distributed among the electors in order to induce them to vote for him. This letter is also said to have been intercepted and ultimately reached the hands of the appellantIt is Ext P-5- Such a crude attempt to prove charges of bribery was bound to fail and has rightly failed in the High Court.12. The last and the fourth set of issues decided against the appellant and pressed for our consideration is the following"8 (a) Whether Rao Saheb Rampur Naikin was an agent and worker of respondent no. 1?(b) Whether Rao Saheb Rampur Naikin with the consent of respondent no. 1 published a pamphlet under the caption "Churhat Kshetra Ke Matadataon Se Appeal" and thereby exercised undue influence on the electors? ,(c) Whether between 3-3-1972 to 9-3-1972 the aforesaid pamphlet was widely distributed in all the villages which originally comprised the Ilaka Rampur Naikin by Shankereshwar Pratap Singh son of Rao Saheb Rampur Naikin?9. Whether Shankereshwar Pratap Singh was agent and worker of the respondent no, 1 during the period and he distributed the pamphlets with the consent of respondent no. 1?10. Whether respondent no. 1 in the company of Shankereshwar Pratap Singh distributed the aforesaid pamphlet in villages Rampur, Murtala, Baghwar, Sikargani, Bagher, Amlai and Kandhwar on 8-3-1972?11. Whether on 8-3-1972 Shankereshwar Pratap Singh threatened the voters of villages Kandhwar, Bagher and Dabaiya Tola belonging to Thakur community that they would be ex-communicated if they voted for the independent candidate Shyamlal and did not vote for the respondent no. 1?12. Whether the aforesaid threats were given by Shankereshwar Pratap singh with, the consent of respondent no. 1 in his presence and hearings?13. Whether Rao Saheb Rampur Naikin threatened the Thakur voters of village Rampur on 7-3-1972 that they will be ex-communicated if they did not vote for the respondent no. 1? ,14. Whether these threats were given by Rao Saheb Rampur Naikin with the consent of respondent no. 1 for furtherance of his election?15. Whether the aforesaid threats were given by Rao Saheb Rampur Naikin at a meeting convened on 7-3-1972 in which the persons mentioned in paragraph 7 (F) of the petition were specially called?16. Whether the respondent no. 1 thus committed corrupt practice of " undue influence under Section 123 (2) of the Representation of the People Act for furtherance of his election, and as such his election is liable to be set aside?"13. The High Court has held:(1) "There is no doubt that a pamphlet (Ext. P-7) was published and the publisher was shown to be Rao Saheb of Rampur."(2) it is not true that the Rao Saheb an old man moved in the company of respondent no. 1 to help him in the, election.(3) That the pamph1et published by Rao Saheb of Rampur or purporting to have been published on his be- half was not meant to advance the case of respondent no. 1 at the election.14. It is not necessary to state all the findings of the High Court which were against the appellant. Suffice it to say that no fact in regard to the above issues was found in favour of the appellant by the High Court to prove the charge of exercise of undue influence under Section 123 (2) of the Act. We may rest content by merely observing that the High Court has rightly found that the contents of the pamphlet (Ext. P-7) were not such as to prove the case of undue influence under S. 123 (2). The contents are quoted in the judgment of the High Court We find no threat or words in the pamphlet to enable us to hold that under influence i.e- to say any direct or. indirect interference or attempt to interfere on the part of respondent no. 1 was exercised or made with a free exercise of any electoral right .The pamphlet did not plead the case of respondent no, 1 or his party on whose ticket he was contesting the election, We have, therefore, no difficu1iy in rejecting the argument put forward on behalf of the appellant in this regard too.
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We see no justifiable reason to enable us to unset the findings of the High Court in regard to the alleged commission of the corrupt practice bribery by respondent no. 1 through Indramani Prasad. No adverse inference was at all possible to be drawn against respondent no. 1 forof Indramani Prasad as a witness in theacted as a polling agent for respondent no, 1 onat some booth. He was so appointed by one of the trusted workers of respondent no. 1 to whom signed blank forms for appointing polling agents had been entrusted. It was not however, proved that Manbodhi had worked for respondent no. 1 at the time of canvassing of the votes or had distributed any money to the electors for inducing them to vote for respondent no. 1. The letter datedsaid to have been written by Manbodhi has not been found to be a genuine document. It appears to us that the whole drama in connection with the said letter was engineered by or on behalf of the appellant with the help of Shyamlal and his associates. It was a fantastic story that such a letter was written by Manbodhi and was successfully intercepted so as to reach the hands of the election petitioner. This Court is loathe to interfere with the findings of fact recorded by the High Court chiefly when such finding are based on appreciation of the oral evidence. Having perused the judgment of the High Court and the relevant pieces of evidence of certain witnesses examined on behalf of the appellant and respondent no. 1 we could see no infirmity in the decision of the issues aforesaid.Great stress was laid on behalf of the appellant for drawing adverse inference against respondent no, 1 forof Manbodhi to controvert the facts alleged by the appellants witnesses in their evidence.It appears to us that the part played by Manbodhi in the drama of bringing into existence the letter purported to be datedwas such that respondent no. 1 could not be expected to take the risk of examining him as his witness in court. No onus was cast upon him to prove any such fact that would entitle the Court to draw an adverse inference against him forof Manbodhi, In the alternative it was submitted that Manbodhi ought to have been examined as a court witness. We do not think that on the facts and in the circumstance of this case the Court was obliged to do so.It is not necessary to state all the findings of the High Court which were against the appellant. Suffice it to say that no fact in regard to the above issues was found in favour of the appellant by the High Court to prove the charge of exercise of undue influence under Section 123 (2) of the Act. We may rest content by merely observing that the High Court has rightly found that the contents of the pamphlet (Ext.were not such as to prove the case of undue influence under S. 123 (2). The contents are quoted in the judgment of the High Court We find no threat or words in the pamphlet to enable us to hold that under influence i.eto say any direct or. indirect interference or attempt to interfere on the part of respondent no. 1 was exercised or made with a free exercise of any electoral right .The pamphlet did not plead the case of respondent no, 1 or his party on whose ticket he was contesting the election, We have, therefore, no difficu1iy in rejecting the argument put forward on behalf of the appellant in this regard too.
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M.C.MEHTA Vs. UNION OF INDIA | houses or constructions should not be demolished as suggested by the CEC.131. In this regard, it must be appreciated that the order dated 17th March, 1997 as modified on 13th May, 1998 permitted construction only in accordance with law and not de hors the notification dated 18th August, 1992. It is not the case of any of the applicants before us, and indeed it cannot be their case, that the orders of this Court gave a complete go by to the notification and virtually quashed it even though it was never under challenge at that point of time or even today. It appears that very large residential complexes have been constructed despite the orders of this Court, which did not give any blanket permission to the applicants to make constructions, according to their whims and fancies. For reasons that are not at all clear, such constructions were permitted by the concerned authorities despite the orders of this Court and even though the notification dated 18th August, 1992 prohibited breaking up of the land. It is difficult, under the circumstances, to take the view that the applicants and the concerned authorities had acted bona fide.132. We had asked learned counsel for the applicants to place before us the details of the construction made in Kant Enclave. The following chart was then placed before us on 24th July, 2018. This chart indicates that out of a total of about 1600 plots said to have been carved out by R. Kant & Co. in Kant Enclave, conveyance deeds have been executed only in respect of 284 residential plots and three commercial plots. On the residential plots, only 33 houses have been constructed and it appears that not one of them is a single-storey hutment.133. The extent of violation of the notification dated 18th August, 1992 is quite frightening and one can only imagine the phenomenal environmental and ecological damage caused to the area by the applicants. This could not have happened without the knowledge of the State of Haryana and its officers who permitted blatant disregard of the rule of law despite affidavits of the Chief Secretary of the State of Haryana. The rule of law seems to have broken down in Haryana and become the rule of men only to favour the applicants. At this point, we cannot help but referring to a passage from a judgment of this Court with regard to the Aravalli hills and the need for their protection. We had intended to avoid this reference only because it would be repetitive, but it is painful to see such a mockery of the law and total lack of concern for the environment and ecology of the Aravalli hills.134. In the order dated 18th March, 2004 (2004) 12 SCC 118 it was stated in paragraph 58 of the Report as follows:?The Aravallis, the most distinctive and ancient mountain chain of peninsular India, mark the site of one of the oldest geological formations in the world. Heavily eroded and with exposed outcrops of slate rock and granite, it has summits reaching 4950 feet above sea level. Due to its geological location, the Aravalli range harbours a mix of Saharan, Ethiopian, peninsular, oriental and even Malayan elements of flora and fauna. In the early part of this century, the Aravallis were well wooded. There were dense forests with waterfalls and one could encounter a large number of wild animals. Today, the changes in the environment at Aravalli are severe. Though one finds a number of tree species in the hills, timber-quality trees have almost disappeared. Despite the increase of population resulting in increase of demand from the forest, it cannot be questioned nor has it been questioned that to save the ecology of the Aravalli mountains, the laws have to be strictly implemented.? [Emphasis supplied by us].Relief135. The question that now remains for consideration is whether any relief is required to be granted to the applicants and if so what relief should be granted.136. There is no doubt that irreversible damage has been caused to the environment and ecology of the Aravalli hills. The damage was caused or allowed to be caused, despite a statutory notification issued under the provisions of the PLP Act. The brazenness of the applicants in flouting the law is quite apparent. But what is more unfortunate is the support given to the applicants by the Town & Country Department of the State of Haryana, despite the reservations of the Forest Department. The Town & Country Department in apparent collusion with R. Kant & Co. effectively led a very large number of people up the garden path. Fortunately, only 33 of them have made some personal constructions – but it is not clear whether their constructions are pre or post 18th August, 1992.137. Therefore, we have two categories of persons who have been taken for a ride by R. Kant & Co. The first category consists of those who have been conveyed land by R. Kant & Co. and the second category consists of those who have been conveyed land and have made constructions.138. As far as the first category of persons is concerned, the relief that can be awarded to them is a full refund of their investment along with interest at 18% per annum payable entirely by R. Kant & Co. from the date of the investment. We order accordingly.139. As far as the second category of persons is concerned, as submitted by Shri Dharam Vir, Chief Secretary of the State of Haryana in his affidavit of 15th March, 2009 there is an available, reasonable and appropriate course of action to adopt. This course of action is to save or allow to exist constructions made in Kant Enclave pursuant to the exemption granted to the applicant (R. Kant & Co.) on 17th April, 1984 under Section 23 of the Haryana Development and Regulation of Urban Areas Act, 1975 but before 18th August, 1992 when the notification under the provisions of the PLP Act came into force. | 1[ds]75. We may mention, without comment, that the purpose of issuing a notification under the PLP Act is to ensure that in the closed area there is no activity such as cultivation, pasturing of sheep and goats, erection of buildings, herding, pasturing or retaining cattle etc. Therefore, the notification is a clear indication that such closed areas must be forest land or treated as forest land so that such objectionableactivities are not carried out therein and that activities that are not normally carried out in forests are prohibited in forest land, so as to preserve and protect such forest land. A notification under the PLP Act does not convert land into forest land but recognizes it as such or at least requires it to be treated as such.In our opinion, there is nothing in these applications before us to remotely suggest that the various orders passed by this Court need any clarification or modification or recall. All issues raised by the applicants have been considered threadbare by several Benches of this Court and allof them have arrived at a similar conclusion namely that the environmental and ecological degradation of the Aravalli hills must stop and that everybody is bound by the terms of the notification issued under the provisions of the PLP Act and that closed land under the notification dated 18th August, 1992 is a forest and should be treated as a forest.That apart, the view expressed by this Court in Gurdip Singh Uban cannot be limited only to applications for modification, clarification or recall. There is a growing tendency to provide different nomenclatures to applications tothe rigours and limitations imposed on an applicant and the Court in dealing with a review petition. Applications can be and are titled as applications for directions, rehearing, reconsideration, revisiting etc. etc. One has only to open a thesaurus and find an equivalent word and give an application an appropriate nomenclature so that it could be taken up for consideration in open Court and on its merits and not as a review petition by circulation. In our opinion, the nomenclature given to an application is of absolutely no consequencewhat is of importance is the substance of the application and if it is found, in substance, to be an application for review, it should be dealt with by the Court as such, and by circulation.Considering the substantive applications filed by the applicant, we are of the clear opinion that these applications are nothing but disguisedreview petitions and they should not have been listed for hearing in open Court without an appropriate order passed by this Court. They should have first been circulated and dealt with as review petitions and if the concerned Bench was of the view that they were required to be heard in open Court, only then should they have been listed for hearing in open Court. However, we are not detaining ourselves any further in this regard since we propose to deal with these applications on merits, treating them as applications for clarification, modification, recall, reconsideration etc. of the orders passed by this Court from time to. We are unable to appreciate the relevance of this submission for the reason that, as per the Statement of Objects and Reasons, there was a multiplicity of local authorities in thearea with the result that integrated development of this area was not possible. Consequently, it was essential to devise a set up for administration of this area which would meet the objectives of rapid and integrated development and eliminate haphazard development. The said Act was intended to achieve this objective. Quite clearly, this has nothing to do with the notification dated 18th August, 1992. Moreover, Section 29(1) of the said Act related to any law for the time being in forcethe notification dated 18 th August, 1992came much later and was not in force when the said Act was enacted.. It was then contendedthat the exemption granted on 17th April, 1984 under the provisions of the Haryana Development and Regulation of Urban Areas Act, 1975 exempted the applicant or in any case Kant Enclave from all the provisions of the said Act.While this may be so, we do not see how the said Act exempts the applicant or Kant Enclave from the prohibitions imposed by the subsequent notification dated 18th August, 1992. The said Act has no relevance or reference to the provisions of the PLP Act.Learned counsel for the applicants also contended that in view of the decision rendered by this Court in Sandhu, the subject land ought to have been an existing forest as on 25th October, 1980 when the Forest (Conservation) Act, 1980 came into force.In our opinion, this is not at all a correct interpretation of the decision rendered by this Court in Sandhu. It is nobody?s case, and indeed it cannot be anybody?s case that no area can be declared as a forest after 25th October, 1980. If this were the interpretation given, then the entire purpose of the order dated 12th December, 1996 passed by this Court would be rendered meaningless since it was in terms of this order that forest land was directed to be identified, even if that land was not so recognised as forest land. Acceptance of the interpretation sought to be given by learned counsel would also emasculate the PLP Act.In this regard, it must be appreciated that the order dated 17th March, 1997 as modified on 13th May, 1998 permitted construction only in accordance with law and not de hors the notification dated 18th August, 1992. It is not the case of any of the applicants before us, and indeed it cannot be their case, that the orders of this Court gave a complete go by to the notification and virtually quashed it even though it was never under challenge at that point of time or even today. It appears that very large residential complexes have been constructed despite the orders of this Court, which did not give any blanket permission to the applicants to make constructions, according to their whims and fancies. For reasons that are not at all clear, such constructions were permitted by the concerned authorities despite the orders of this Court and even though the notification dated 18th August, 1992 prohibited breaking up of the land. It is difficult, under the circumstances, to take the view that the applicants and the concerned authorities had acted bona fide.As far as the second category of persons is concerned, as submittedby Shri Dharam Vir, Chief Secretary of the State of Haryana in his affidavit of 15th March, 2009 there is an available, reasonable and appropriate course of action to adopt. This course of action is to save or allow to exist constructions made in Kant Enclave pursuant to the exemption granted to the applicant (R. Kant & Co.) on 17th April, 1984 under Section 23 of the Haryana Development and Regulation of Urban Areas Act, 1975 but before 18th August, 1992 when the notification under the provisions of the PLP Act came into force. Any construction made after 18th August, 1992 is clearly illegal and contrary to law and must be demolished as recommended by the Central Empoweredthe present case of Kant Enclave, wellmeaning citizens have been virtually duped into investing huge amounts despite R. Kant & Co. and the Town & Country Department of the State of Haryana being fully aware of the statutory notification dated 18 th August, 1992 and the restrictions placed by the notification. R. Kant & Co. and the Town & Country Department of the State of Haryana were also fully aware that Kant Enclave is a forest or forest land or treated as a forest or forest land, and therefore any construction made on the land or utilisation of the land forpurposes, without the prior approval of the Central Government, would be illegal and violative of the provisions of the Forest (Conservation) Act, 1980. Notwithstanding this, constructions were made (or allowed to be made) in Kant Enclave with the support, tacit or otherwise, of R. Kant & Co. and the Town & Country Department of the State of Haryana. They must pay for this. This is not to suggest that those who have made constructions after 18th August, 1992 are completely innocent. Nevertheless, it is necessary to compensate them in view of the role played by the Town & Country Planning Department of the State of Haryana.The Polluter Pays Principle is a wholesome principle that has been universally accepted and also adopted and applied in our country through several decisions of this Court. In this context, we may draw attention to among two of the earliest decisions rendered by this Court, namely, Indian Council forAction v. Union of IndiaWelfare Forum v. Union of India.The law having been settled for more than two decades, we are of the view that it must be applied in a case such as the present. The damage caused to the Aravalli hills, as already noted, is irreversible. However, perhaps some of the damage could be remediedat least we hope so. According to R. Kant & Co. it has expended ? 50 crore in developing Kant Enclave. We do not know the exact or accurate figure but proceed on the basis as stated. | 1 | 21,521 | 1,687 | ### 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:
houses or constructions should not be demolished as suggested by the CEC.131. In this regard, it must be appreciated that the order dated 17th March, 1997 as modified on 13th May, 1998 permitted construction only in accordance with law and not de hors the notification dated 18th August, 1992. It is not the case of any of the applicants before us, and indeed it cannot be their case, that the orders of this Court gave a complete go by to the notification and virtually quashed it even though it was never under challenge at that point of time or even today. It appears that very large residential complexes have been constructed despite the orders of this Court, which did not give any blanket permission to the applicants to make constructions, according to their whims and fancies. For reasons that are not at all clear, such constructions were permitted by the concerned authorities despite the orders of this Court and even though the notification dated 18th August, 1992 prohibited breaking up of the land. It is difficult, under the circumstances, to take the view that the applicants and the concerned authorities had acted bona fide.132. We had asked learned counsel for the applicants to place before us the details of the construction made in Kant Enclave. The following chart was then placed before us on 24th July, 2018. This chart indicates that out of a total of about 1600 plots said to have been carved out by R. Kant & Co. in Kant Enclave, conveyance deeds have been executed only in respect of 284 residential plots and three commercial plots. On the residential plots, only 33 houses have been constructed and it appears that not one of them is a single-storey hutment.133. The extent of violation of the notification dated 18th August, 1992 is quite frightening and one can only imagine the phenomenal environmental and ecological damage caused to the area by the applicants. This could not have happened without the knowledge of the State of Haryana and its officers who permitted blatant disregard of the rule of law despite affidavits of the Chief Secretary of the State of Haryana. The rule of law seems to have broken down in Haryana and become the rule of men only to favour the applicants. At this point, we cannot help but referring to a passage from a judgment of this Court with regard to the Aravalli hills and the need for their protection. We had intended to avoid this reference only because it would be repetitive, but it is painful to see such a mockery of the law and total lack of concern for the environment and ecology of the Aravalli hills.134. In the order dated 18th March, 2004 (2004) 12 SCC 118 it was stated in paragraph 58 of the Report as follows:?The Aravallis, the most distinctive and ancient mountain chain of peninsular India, mark the site of one of the oldest geological formations in the world. Heavily eroded and with exposed outcrops of slate rock and granite, it has summits reaching 4950 feet above sea level. Due to its geological location, the Aravalli range harbours a mix of Saharan, Ethiopian, peninsular, oriental and even Malayan elements of flora and fauna. In the early part of this century, the Aravallis were well wooded. There were dense forests with waterfalls and one could encounter a large number of wild animals. Today, the changes in the environment at Aravalli are severe. Though one finds a number of tree species in the hills, timber-quality trees have almost disappeared. Despite the increase of population resulting in increase of demand from the forest, it cannot be questioned nor has it been questioned that to save the ecology of the Aravalli mountains, the laws have to be strictly implemented.? [Emphasis supplied by us].Relief135. The question that now remains for consideration is whether any relief is required to be granted to the applicants and if so what relief should be granted.136. There is no doubt that irreversible damage has been caused to the environment and ecology of the Aravalli hills. The damage was caused or allowed to be caused, despite a statutory notification issued under the provisions of the PLP Act. The brazenness of the applicants in flouting the law is quite apparent. But what is more unfortunate is the support given to the applicants by the Town & Country Department of the State of Haryana, despite the reservations of the Forest Department. The Town & Country Department in apparent collusion with R. Kant & Co. effectively led a very large number of people up the garden path. Fortunately, only 33 of them have made some personal constructions – but it is not clear whether their constructions are pre or post 18th August, 1992.137. Therefore, we have two categories of persons who have been taken for a ride by R. Kant & Co. The first category consists of those who have been conveyed land by R. Kant & Co. and the second category consists of those who have been conveyed land and have made constructions.138. As far as the first category of persons is concerned, the relief that can be awarded to them is a full refund of their investment along with interest at 18% per annum payable entirely by R. Kant & Co. from the date of the investment. We order accordingly.139. As far as the second category of persons is concerned, as submitted by Shri Dharam Vir, Chief Secretary of the State of Haryana in his affidavit of 15th March, 2009 there is an available, reasonable and appropriate course of action to adopt. This course of action is to save or allow to exist constructions made in Kant Enclave pursuant to the exemption granted to the applicant (R. Kant & Co.) on 17th April, 1984 under Section 23 of the Haryana Development and Regulation of Urban Areas Act, 1975 but before 18th August, 1992 when the notification under the provisions of the PLP Act came into force.
### Response:
1
### Explanation:
multiplicity of local authorities in thearea with the result that integrated development of this area was not possible. Consequently, it was essential to devise a set up for administration of this area which would meet the objectives of rapid and integrated development and eliminate haphazard development. The said Act was intended to achieve this objective. Quite clearly, this has nothing to do with the notification dated 18th August, 1992. Moreover, Section 29(1) of the said Act related to any law for the time being in forcethe notification dated 18 th August, 1992came much later and was not in force when the said Act was enacted.. It was then contendedthat the exemption granted on 17th April, 1984 under the provisions of the Haryana Development and Regulation of Urban Areas Act, 1975 exempted the applicant or in any case Kant Enclave from all the provisions of the said Act.While this may be so, we do not see how the said Act exempts the applicant or Kant Enclave from the prohibitions imposed by the subsequent notification dated 18th August, 1992. The said Act has no relevance or reference to the provisions of the PLP Act.Learned counsel for the applicants also contended that in view of the decision rendered by this Court in Sandhu, the subject land ought to have been an existing forest as on 25th October, 1980 when the Forest (Conservation) Act, 1980 came into force.In our opinion, this is not at all a correct interpretation of the decision rendered by this Court in Sandhu. It is nobody?s case, and indeed it cannot be anybody?s case that no area can be declared as a forest after 25th October, 1980. If this were the interpretation given, then the entire purpose of the order dated 12th December, 1996 passed by this Court would be rendered meaningless since it was in terms of this order that forest land was directed to be identified, even if that land was not so recognised as forest land. Acceptance of the interpretation sought to be given by learned counsel would also emasculate the PLP Act.In this regard, it must be appreciated that the order dated 17th March, 1997 as modified on 13th May, 1998 permitted construction only in accordance with law and not de hors the notification dated 18th August, 1992. It is not the case of any of the applicants before us, and indeed it cannot be their case, that the orders of this Court gave a complete go by to the notification and virtually quashed it even though it was never under challenge at that point of time or even today. It appears that very large residential complexes have been constructed despite the orders of this Court, which did not give any blanket permission to the applicants to make constructions, according to their whims and fancies. For reasons that are not at all clear, such constructions were permitted by the concerned authorities despite the orders of this Court and even though the notification dated 18th August, 1992 prohibited breaking up of the land. It is difficult, under the circumstances, to take the view that the applicants and the concerned authorities had acted bona fide.As far as the second category of persons is concerned, as submittedby Shri Dharam Vir, Chief Secretary of the State of Haryana in his affidavit of 15th March, 2009 there is an available, reasonable and appropriate course of action to adopt. This course of action is to save or allow to exist constructions made in Kant Enclave pursuant to the exemption granted to the applicant (R. Kant & Co.) on 17th April, 1984 under Section 23 of the Haryana Development and Regulation of Urban Areas Act, 1975 but before 18th August, 1992 when the notification under the provisions of the PLP Act came into force. Any construction made after 18th August, 1992 is clearly illegal and contrary to law and must be demolished as recommended by the Central Empoweredthe present case of Kant Enclave, wellmeaning citizens have been virtually duped into investing huge amounts despite R. Kant & Co. and the Town & Country Department of the State of Haryana being fully aware of the statutory notification dated 18 th August, 1992 and the restrictions placed by the notification. R. Kant & Co. and the Town & Country Department of the State of Haryana were also fully aware that Kant Enclave is a forest or forest land or treated as a forest or forest land, and therefore any construction made on the land or utilisation of the land forpurposes, without the prior approval of the Central Government, would be illegal and violative of the provisions of the Forest (Conservation) Act, 1980. Notwithstanding this, constructions were made (or allowed to be made) in Kant Enclave with the support, tacit or otherwise, of R. Kant & Co. and the Town & Country Department of the State of Haryana. They must pay for this. This is not to suggest that those who have made constructions after 18th August, 1992 are completely innocent. Nevertheless, it is necessary to compensate them in view of the role played by the Town & Country Planning Department of the State of Haryana.The Polluter Pays Principle is a wholesome principle that has been universally accepted and also adopted and applied in our country through several decisions of this Court. In this context, we may draw attention to among two of the earliest decisions rendered by this Court, namely, Indian Council forAction v. Union of IndiaWelfare Forum v. Union of India.The law having been settled for more than two decades, we are of the view that it must be applied in a case such as the present. The damage caused to the Aravalli hills, as already noted, is irreversible. However, perhaps some of the damage could be remediedat least we hope so. According to R. Kant & Co. it has expended ? 50 crore in developing Kant Enclave. We do not know the exact or accurate figure but proceed on the basis as stated.
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L.I.C. Of India Vs. Consumer Edn. & Research Centre | forever. With a view to have the services of the goods, the party enters into a contract with unreasonable or unfair terms contained therein and he would be left with no option but to sign the contract. 49. In National Textiles Workers Union etc. v. P.R. Ramkrishnan, 1983 (1) SCR 922 , the constitution bench per majority held that the socio-economic objectives set down in the directive principles of the Constitution should guide and shape the new corporate philosophy. The management of the private company should show profound concern for the workers. The socio-economic justice will inform all the institutions of textiles in the nation to promote fraternity and dignity of the individuals. In Workmen of Meenakshi Mills Ltd. v. Meenakshi Mills Ltd., 1992(3) SCT 77(SC) : 1992(3) SCC, 336, the right of the management to declare lay off under section 25-N of the Industrial Disputes Act, 1984 under Article 19(1)(g) of the Constitution are subject to the mandates containing Arts. 38, 39A, 41 and 43. Therefore, right under Article 19(1)(g) was held to be subject to the directive principles. In Consumer Education & Research Centre v. Union of India, JT 1995(1) SC 637, the right of the management in Asbestos industry to carry on its business is subject to their obligation to protect the health of the workmen and to preserve pollution free atmosphere and to provide safety and healthy condition of the workmen. 50. The authorities or a private person or industry are bound by the directives contain in part IV, Part III and the Preamble of the Constitution. It would thus be clear that the right to carry on trade is subject to the directives contained the Constitution, the Universal Declaration of Human Rights, European Convention of Social Economic and Culturan Right and the Convention on Right to development for socio-economic justice to the people and a means to livelihood. 51. Since medical report is admittedly a condition precedent for acceptance of the proposal, it would be open to the appellants to have the medical report from its recognised or accredited doctors. On its satisfaction of the health condition of the proposed life to be insured, it would be open to the appellants to accept or reject, as the case may be, of the proposal. The question then is whether a clause in the contract is severable by an order of the court. It is settled law that the arms of the court are long enough to reach injustice wherever it is found and the court would mould the relief appropriately to meet the peculiar and complicated requirements of the country vide Dwarkanath v. Income Tax Officer, Kanpur, 1965(3) SCR 536 at 540, Anadi Mukts Trust v. V.R. Rudani, 1989(2) SCC 691 at 699-700, Unni Krishnan v. State of A.P., 1993(2) SCT 512(SC) : 1993(1) SCC 645 at 693-97 and Hchitief Gammon v. State of Orissa, 1975(2) SCC 649 at 656. In M.J. Sivani and others v. State of Karnataka, S.L.P. No. 11012/1991 etc dated April 17, 1995 it was contended that since the High Court held that a part of the notification was inapplicable to the licence for Video games, it was not severable from the rest of the notification and the whole notification must be declared to be ultra vires or inapplicable to video games. Rejecting the contention of the licensees on that ground, this Court held that the entire order did not become invalid due to inapplicability of a particular provision or a clause in the general order unless the invalid part is inextricably interconnected with the valid part. The court would be entitled to consider whether the rule as a whole or in part is valid or becomes invalid or inapplicable. On finding that the extent of the rule was not relevant or invalid, the court is entitled to set aside or direct to disregard the invalid or inapplicable part leaving the rest intact and operative. In that case Para 3(2) of the notification of licensing public places or the places or public resort or amusement for conducting video in gaming house though was held to be inapplicable to video games the rest of the notification was declared valid. 52. In Praga Tools Corpn. v. C.A. Imanual, 1969(1) SCC 585 at 589, this Court held that mandamus may be issued to enforce duties and positive obligation of a public nature even though the persons or the authorities are not public officials or authorities. The same view was laid in Anadi Mukta v. V.R. Rudani, (supra), and Unnikrishnan v. State of A.P., (supra), In Comptroller & Auditor General of India v. K.S. Jagannathan, 1986(2) SCR 17 at 36-40, this Court held that a mandamus would be issued to implement directive principles when Government have adopted them. They are of public obligations to give preferential treatment implementing the rule of reservation under Arts. 14 and 16(1) and (4) of the Constitution. 53. It is seen that the respondents are not seeking any direction in their favour to call upon the appellants to enter into a contractual relations of terms policy in Table 58. Their privilege and legitimate expectation to seek acceptance of policy of life insurance are their freedom. Instead they sought for a declaration that the policy confining to only salaried class from government, semi-government or reputed commercial firms is discriminatory offending Article 14. Denial thereof to larger segments violates their constitutional rights. We are of the considered view that they are right. They are not seeking any mandamus to direct the appellants to enter into contract of life insurance with them. The rest of the conditions age etc. are valid and do not call for interference. The offending clause extending the benefit only the salaried class in government, semi-Government and reputed firms is unconstitutional. Subject to compliance with other terms and conditions, the appellant is free to enforce Table 58 policy with all eligible lives. The declaration given, therefore, is perfectly valid. The offending part is severable from the rest of the conditions. | 0[ds]6. We have given our anxious and careful consideration to the respective contentions. Since our answers to the questions involved are bound to have far reaching effect on the business of life insurance, we have minutely examined all the questions bearing in mind the larger public interest. Life insurance policies based on actuarial Tables and the Policy Holders needs suited to their requirements. It appears that LIC has, in assessing the risk, taken into consideration the factors: (a) present condition of health and physical build of the person whose life has to be insured; (b) his/her personal history i.e., record of illness suffered in the past by the person whose life has to be insured, risks to be covered and the persons habits in general; (c) family history, i.e. record of health and longevity of members of the family of the person to be insured; (d) occupation and environment of the person whose life has to be insured; and (e) the likelihood of any change in the occupation of the person whose life has to be insured, calculated to increase the risk of his/her life. Based thereon, the amount of premium would be charged depending upon whether a particular policy is a term insurance or an endowment or whole life policy etc. based on actuarial method. The terms and conditions subject to which the risk is to be covered, undoubtedly, would play a vital role in deciding the amount of premium payable and the conditions on which the policy is to be issued. In that behalf, it would be necessary to foresee mortality among insured lives within a relatively narrow margin of error. The insurer, therefore, would be entitled to devise its plans, relative terms and conditions, its advantages and other relevant factors. Therefore, the insurer would be entitled to specify eligibility criteria in various plans of life insurance. Each policy differs in its contents and conditions, the degree of risk, the amount of premium payable in that behalf and also mortality rate.7. Sezhiyan Committee Report after its elaborate study of the working of the LIC on insurance recommended in the year 1980 for improvement on several factors of the working system. It had recommended to make available policies to wider sections of the people. It analysed diverse life insurance policies in para 13.1(i) and concluded that the cost of providing life insurance through individual life insurance policies is high and beyond the means of a large section of the population both in urban and rural areas; (ii) in pursuance of one of its basic objectives, namely, mobilisation of savings through life insurance, the LIC has been concentrating its efforts mainly on upper strata and employed sections of the population which has a regular income and saving potential. The obligatory linking of life insurance to savings inherent in the conventional individual assurance plans and the LICs concentration on this type of business together, had the effect of denying life insurance cover to the vast section of the people who do not have regular income and whose savings potential is low; (iii) as a result of the above, only about 10% of the insurable male lives in the country have been provided cover against death. That too on the salary earning classes and persons in the higher income groups who take out LIC mainly because of the tax relief available. The coverage of persons in rural areas and of those employed in the unorganised sector in the urban areas in meagre; (vi) Life insurance in India can still be a viable savings medium, as it is in U.K., provided the LIC is enabled to improve substantially the yield on its investment and to control effectively its expenses of management. In para 13.18, the report further states that ``there is one other plan which the Committee feels the LIC ought to introduce and that is a level premium term insurance plan. The Committee has noted that the Committee of Actuaries had recommended introduction of such a plan...... Therefore, the term insurance policy introduced, though based on calculations of actuarial consideration, was intended to cover not only the elite and employed in government,and reputed commercial establishments but also need to cover wider public, self employed or those working in organised sectors. The term insurance policy under table 58 is beneficial to all sections and restricted to lives in specified area alone.The term insurance policy under Table 58, therefore, appears to be the cheapest and most accessible policy which a large number of people in the country both in rural and in urban sectors can afford to take for the reason that the premium is low and within affordable limit. The policy is for a short term of 5 to 7 years. There is no return for the insured at the end of the policy. In the event of death of the insured, it purely provides insurance cover to the family as social security to support the dependents. Pursuant to the recommendation made by Sczhiyan Committee, the term insurance policy was brought into vogue. In fact, this policy appears to be very popular even in the United States of America as per the material furnished before us which would indicate that during the years 1985 to 1989 among all the policies, the term insurance policy was the most popular one, which covered large number of lives.12. It is true that convertible whole life insurance was intended to meet the needs of a young person who is on the threshold of his career to provide maximum insurance with a minimum cost and at the same time intended to offer a flexible contract which can be altered into an endowment insurance without any need to pay premia after the age of 70 and without further medical examination. Convertible term insurance is designed to meet the needs of those who are initially unable to pay premium required for whole life or endowment insurance policy and hope to be able to pay for such a policy in the near future. Fixed term convertible is permissible except in the last two years without any further medical examination. As stated earlier at the end of the term, the assured will not get anything, if he survives. On his death, the nominee or the dependents will get the assured amount but it could be seen that the capacity to pay the premium would also be a relevant factor.m this material matrix, the question emerges whether the appellant is justified in law in restricting the term policy only to the specified class, namely, salaried persons in Government,or reputed commercial firms.The Preamble, the arch of the Constitution, assuresjustice to all the Indian citizens in matters of equality of status and of opportunity with assurance to dignity of the individual. Article 14 provides equality before law and its equal protection. Article 19 assures freedoms with rights to residence and settlement in any part of the country and Article 21 by receiving expansive interpretation of right to life extends to right to livelihood. Article 38 in the Chapter of Directive Principles enjoins the State to promote the welfare of the people by securing and protecting effective social order in whichjustice shall inform all the institutions of the national life. It enjoins to eliminate inequality in status, to provide facilities and opportunities among the individuals and groups of the people living in any part of the country and engaged in any avocation. Article 39 assures to secure the rights to livelihood, health and strength of workers, men and women and the children of tender age. The material resources of the community are required to be so distributed as best to subserve the common good. Social security has been assured under Article 41 and Article 47 imposes a positive duty on the State to raise the standard or living and to improve public health.15. Article 25 of the Universal Declaration of Human Rights envisages that everyone has the right of standard of living adequate for the health andof himself and of his family including food, clothing, housing and medical care and necessary social services and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in the circumstances beyond his control. Article 7 of the International Covenant on Economic and Social Rights equally assures right to everyone to the enjoyment of just and favourable conditions of work which ensures not only adequate remuneration and fair wages but also decent living to the workers for themselves and their families in accordance with the provisions of the Covenant. Covenant on Rights to Development enjoins the State to provide facilities and opportunities to make rights a reality and truism, so as to make these rights meaningful.It would thus be well settled law that the Preamble, Chapter of Fundamental Rights and Directive Principles accord right to livelihood as a meaningful life, social security and disablement benefits are integral schemes ofjustice to the people in particular to the middle class and lower middle class and all offendable people. Life insurance coverage is against disablement or in the event of death of the insured economic support for the dependants, social security to livelihood to the insured or the dependants. The appropriate life insurance policy within the paying capacity and means of the insured to pay premia is one of the social security measures envisaged under the Constitution to make right to life meaningful, worth living and right to livelihood a means for sustenance.19.The question, therefore, is whether the appellant is free to incorporate as a part of its business principles, any term of its choice.It is true that the appellant is entitled to accept insurance policy from a person possessed of health with first class life and before acceptance of the policy the insured is required to undergo medical examination as per policy at his expense to satisfy his condition of health. The question is whether the term policy needs to be restricted only to the employees of Govt.,or reputed commercial firms and whether such condition is just, fair and reasonable or based on reasonable classification consistent with Articles 14 and 21 of the Constitution. The contention of the appellants is that life insurance policy being a contract of insurance becomes a binding contract on appellants acceptance. Until a contract is entered into, the proposed insured does not acquire any right in insurance policy. The terms of the contract under Table 58 cannot be declared ultra vires before a concluded contract emerged. Contract of insurance operates in the arena of contractual relations. Refusal to enter into contract does not infringe any fundamental right or a legal right nor the respondents are entitled to compel the appellants to enter into favourable relations when they did not fulfill the essential terms of the proposal. Therefore, writ petition is not maintainable to enforce such rights in embryo nor they be entitled to declaration in their favour.20. It is true life insurance business as defined under section 2(11) of the Insurance Act, 1938, is business of effecting contracts of insurance upon human life, including any contract whereby the payment of money is assured on death (expect death by accident only) or the happening of any contingency dependent on human life, and any contract which subject to payment of premiums for a term dependent on human life including those enumerated in clauses (a) to (c) thereof. Thereby, the contract of insurance is hedged with bilateral agreement on human life upon payment of premia subject to the covenants contained thereunder. But as stated earlier, is the insurer entitled to impose unconstitutional conditions including that which denied the right of entering into the contract, limiting only to a class of persons under a particular policy ? We make it clear at this juncture that the insurer is free to evolve a policy based on business principles and conditions before floating the policy to the general public offering on insurance of the life of the insured but as seen earlier, the insurance being a social security measure, it should be consistent with the constitutional animation and conscience ofjustice adumbrated in the Constitution as elucidated hereinbefore.This Court has rejected the contention of an instrumentality or the State that its action is in the private law field and would be immuned from satisfying the tests laid under Article 14. The dichotomy between public law and private law rights and remedies, though may not be obliterated by anyformula, it would depend upon the factual matrix. The adjudication of the dispute arising out of a contract would, therefore, depend upon facts and circumstances in a given case. The distinction between public law remedy and private law field cannot be demarcated with precision. Each case will be examined on its facts and circumstances to find out the nature of the activity, scope and nature of the controversy. The distinction between public law and private law remedy has now become too thin and practicably obliterated.27. In the sphere of contractual relations the State, its instrumentality, public authorities or those whose acts bear insignia of public element, action to public duty or obligation are enjoined to act in a manner that is fair, just and equitable, after taking objectively all the relevant options into consideration and in a manner that is reasonable, relevant and germane to effectuate the purpose for public good and in general public interest and it must not take any irrelevant or irrational factors into consideration or arbitrary in its decision. Duty to act fairly is part of fair procedure envisaged under Articles 14 and 21. Every activity of the public authority or those under public duty or obligation must be informed by reason and guided by the public interest.The contention of the appellants is that the offending clause is a valid classification. The salaried group of lives from the government, semigovernment or reputed commercial institutions form a class with a view to identify the health conditions, the policy was applied to that class of lives. No mandamus would be issued to declare the classification as unconstitutional when it bears reasonable nexus to the object and there is intelligible differential between the salaried lives and the rest. The High Court, therefore, was wrong in declaring the offending clause as arbitrary violating Article 14. It is true that the appellant is entitled to issue the policy applicable to a particular group or class of lives entitled to avail contract of insurance with the appellant but a class or a group does mean that the classification meets the demand of equality, fairness and justness. The doctrine of classification is only a subsidiary rule evolved by the courts to give practical content to the doctrine of equality,on the doctrine of classification or anxious or sustained attempt to discover some basis for classification may gradually and imperceptily erode the profound potency of the glorious content of equality enshrined in Article 14 of the Constitution. Theon classification would inevitably result in substitution of the doctrine of classification to the doctrine of equality and the Preamble of the Constitution which is an integral part and scheme of the Constitution. Menaka Gandhi ratio extricated it from this moribund and put its elasticity for egalitarian path finder. Lest, the classification would deny equality to the larger segments of the society. The classification based on employment in government,and reputed commercial firms has the insidious and inevitable effect of excluding lives in vast rural and urban areas engaged in unorganized orsectors to have life insurance offending Article 14 of the Constitution andjustice.30. It is true that the appellants have to successfully operate the life insurance plan need to forecast mortality among the insured lives within a relatively narrow margin of error and are entitled to scrutinize the medical history of the lives to be covered under the appropriate policy including Table 58. It is seen that the term policy under Table 58 is the cheapest and accessible policy to the people and that the life of the policy is 5 to 7 years and the insurable lives are upto 50 years. Before acceptance of the policy the appellants also have the medical report submitted by the proposed policy holder at his expense. Though leave record of the government employees or those working inor reputed commercial firms has been introduced at a later stage, it may not by itself a foolproof of the good health of the concerned proposed policy holders. It would appear that the appellants have adopted a soft and easy course. The class of the employees sought to be covered under policy would, by and large generally be those already insured under whole life policy or endowment policy. Extending the Table 58 policy again to 10% of such a class from total population may not always be more successful apart, extending the benefit to other people who can afford to take the policy and continue to pay the premium would ensure social security. It would percolate not only to the salaried class to whom other policies stood extended but also latter segments not only in urban areas and also in the rural areas would reap the benefit. Though assured employment sources of income may be easily capable source, policy being volitious it may not be difficult for the people in other private sector, unorganised sector etc. or people insector to take policy under Table 58. Sezhiyan committee itself had recommended and it would be obvious that pursuant thereto Table 58 also was introduced into the market to benefit those lives in rural areas or in the unorganised sector. Confining the policy under Table 58 to already covered salaried sections would, therefore, be unreasonable and arbitrary and would deprive large segments in the rural areas or unorganised orwould be unjust and irrational and unfair.It is, therefore, the settled law that if a contract or a clause in a contract is found unreasonable or unfair or irrational one must look to the relative bargaining power of the contracting parties. In dotted line contracts there would be no occasion for a weaker party to bargain or to assume to have equal bargaining power. He has either to accept or leave the services or goods in terms of the dotted line contract. His option would be either to accept the unreasonable or unfair terms or forego the service forever. With a view to have the services of the goods, the party enters into a contract with unreasonable or unfair terms contained therein and he would be left with no option but to sign the contract.It is seen that the respondents are not seeking any direction in their favour to call upon the appellants to enter into a contractual relations of terms policy in Table 58. Their privilege and legitimate expectation to seek acceptance of policy of life insurance are their freedom. Instead they sought for a declaration that the policy confining to only salaried class from government,or reputed commercial firms is discriminatory offending Article 14. Denial thereof to larger segments violates their constitutional rights. We are of the considered view that they are right. They are not seeking any mandamus to direct the appellants to enter into contract of life insurance with them. The rest of the conditions age etc. are valid and do not call for interference. The offending clause extending the benefit only the salaried class in government,and reputed firms is unconstitutional. Subject to compliance with other terms and conditions, the appellant is free to enforce Table 58 policy with all eligible lives. The declaration given, therefore, is perfectly valid. The offending part is severable from the rest of the conditions. | 0 | 13,074 | 3,527 | ### 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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forever. With a view to have the services of the goods, the party enters into a contract with unreasonable or unfair terms contained therein and he would be left with no option but to sign the contract. 49. In National Textiles Workers Union etc. v. P.R. Ramkrishnan, 1983 (1) SCR 922 , the constitution bench per majority held that the socio-economic objectives set down in the directive principles of the Constitution should guide and shape the new corporate philosophy. The management of the private company should show profound concern for the workers. The socio-economic justice will inform all the institutions of textiles in the nation to promote fraternity and dignity of the individuals. In Workmen of Meenakshi Mills Ltd. v. Meenakshi Mills Ltd., 1992(3) SCT 77(SC) : 1992(3) SCC, 336, the right of the management to declare lay off under section 25-N of the Industrial Disputes Act, 1984 under Article 19(1)(g) of the Constitution are subject to the mandates containing Arts. 38, 39A, 41 and 43. Therefore, right under Article 19(1)(g) was held to be subject to the directive principles. In Consumer Education & Research Centre v. Union of India, JT 1995(1) SC 637, the right of the management in Asbestos industry to carry on its business is subject to their obligation to protect the health of the workmen and to preserve pollution free atmosphere and to provide safety and healthy condition of the workmen. 50. The authorities or a private person or industry are bound by the directives contain in part IV, Part III and the Preamble of the Constitution. It would thus be clear that the right to carry on trade is subject to the directives contained the Constitution, the Universal Declaration of Human Rights, European Convention of Social Economic and Culturan Right and the Convention on Right to development for socio-economic justice to the people and a means to livelihood. 51. Since medical report is admittedly a condition precedent for acceptance of the proposal, it would be open to the appellants to have the medical report from its recognised or accredited doctors. On its satisfaction of the health condition of the proposed life to be insured, it would be open to the appellants to accept or reject, as the case may be, of the proposal. The question then is whether a clause in the contract is severable by an order of the court. It is settled law that the arms of the court are long enough to reach injustice wherever it is found and the court would mould the relief appropriately to meet the peculiar and complicated requirements of the country vide Dwarkanath v. Income Tax Officer, Kanpur, 1965(3) SCR 536 at 540, Anadi Mukts Trust v. V.R. Rudani, 1989(2) SCC 691 at 699-700, Unni Krishnan v. State of A.P., 1993(2) SCT 512(SC) : 1993(1) SCC 645 at 693-97 and Hchitief Gammon v. State of Orissa, 1975(2) SCC 649 at 656. In M.J. Sivani and others v. State of Karnataka, S.L.P. No. 11012/1991 etc dated April 17, 1995 it was contended that since the High Court held that a part of the notification was inapplicable to the licence for Video games, it was not severable from the rest of the notification and the whole notification must be declared to be ultra vires or inapplicable to video games. Rejecting the contention of the licensees on that ground, this Court held that the entire order did not become invalid due to inapplicability of a particular provision or a clause in the general order unless the invalid part is inextricably interconnected with the valid part. The court would be entitled to consider whether the rule as a whole or in part is valid or becomes invalid or inapplicable. On finding that the extent of the rule was not relevant or invalid, the court is entitled to set aside or direct to disregard the invalid or inapplicable part leaving the rest intact and operative. In that case Para 3(2) of the notification of licensing public places or the places or public resort or amusement for conducting video in gaming house though was held to be inapplicable to video games the rest of the notification was declared valid. 52. In Praga Tools Corpn. v. C.A. Imanual, 1969(1) SCC 585 at 589, this Court held that mandamus may be issued to enforce duties and positive obligation of a public nature even though the persons or the authorities are not public officials or authorities. The same view was laid in Anadi Mukta v. V.R. Rudani, (supra), and Unnikrishnan v. State of A.P., (supra), In Comptroller & Auditor General of India v. K.S. Jagannathan, 1986(2) SCR 17 at 36-40, this Court held that a mandamus would be issued to implement directive principles when Government have adopted them. They are of public obligations to give preferential treatment implementing the rule of reservation under Arts. 14 and 16(1) and (4) of the Constitution. 53. It is seen that the respondents are not seeking any direction in their favour to call upon the appellants to enter into a contractual relations of terms policy in Table 58. Their privilege and legitimate expectation to seek acceptance of policy of life insurance are their freedom. Instead they sought for a declaration that the policy confining to only salaried class from government, semi-government or reputed commercial firms is discriminatory offending Article 14. Denial thereof to larger segments violates their constitutional rights. We are of the considered view that they are right. They are not seeking any mandamus to direct the appellants to enter into contract of life insurance with them. The rest of the conditions age etc. are valid and do not call for interference. The offending clause extending the benefit only the salaried class in government, semi-Government and reputed firms is unconstitutional. Subject to compliance with other terms and conditions, the appellant is free to enforce Table 58 policy with all eligible lives. The declaration given, therefore, is perfectly valid. The offending part is severable from the rest of the conditions.
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0
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authority or those under public duty or obligation must be informed by reason and guided by the public interest.The contention of the appellants is that the offending clause is a valid classification. The salaried group of lives from the government, semigovernment or reputed commercial institutions form a class with a view to identify the health conditions, the policy was applied to that class of lives. No mandamus would be issued to declare the classification as unconstitutional when it bears reasonable nexus to the object and there is intelligible differential between the salaried lives and the rest. The High Court, therefore, was wrong in declaring the offending clause as arbitrary violating Article 14. It is true that the appellant is entitled to issue the policy applicable to a particular group or class of lives entitled to avail contract of insurance with the appellant but a class or a group does mean that the classification meets the demand of equality, fairness and justness. The doctrine of classification is only a subsidiary rule evolved by the courts to give practical content to the doctrine of equality,on the doctrine of classification or anxious or sustained attempt to discover some basis for classification may gradually and imperceptily erode the profound potency of the glorious content of equality enshrined in Article 14 of the Constitution. Theon classification would inevitably result in substitution of the doctrine of classification to the doctrine of equality and the Preamble of the Constitution which is an integral part and scheme of the Constitution. Menaka Gandhi ratio extricated it from this moribund and put its elasticity for egalitarian path finder. Lest, the classification would deny equality to the larger segments of the society. The classification based on employment in government,and reputed commercial firms has the insidious and inevitable effect of excluding lives in vast rural and urban areas engaged in unorganized orsectors to have life insurance offending Article 14 of the Constitution andjustice.30. It is true that the appellants have to successfully operate the life insurance plan need to forecast mortality among the insured lives within a relatively narrow margin of error and are entitled to scrutinize the medical history of the lives to be covered under the appropriate policy including Table 58. It is seen that the term policy under Table 58 is the cheapest and accessible policy to the people and that the life of the policy is 5 to 7 years and the insurable lives are upto 50 years. Before acceptance of the policy the appellants also have the medical report submitted by the proposed policy holder at his expense. Though leave record of the government employees or those working inor reputed commercial firms has been introduced at a later stage, it may not by itself a foolproof of the good health of the concerned proposed policy holders. It would appear that the appellants have adopted a soft and easy course. The class of the employees sought to be covered under policy would, by and large generally be those already insured under whole life policy or endowment policy. Extending the Table 58 policy again to 10% of such a class from total population may not always be more successful apart, extending the benefit to other people who can afford to take the policy and continue to pay the premium would ensure social security. It would percolate not only to the salaried class to whom other policies stood extended but also latter segments not only in urban areas and also in the rural areas would reap the benefit. Though assured employment sources of income may be easily capable source, policy being volitious it may not be difficult for the people in other private sector, unorganised sector etc. or people insector to take policy under Table 58. Sezhiyan committee itself had recommended and it would be obvious that pursuant thereto Table 58 also was introduced into the market to benefit those lives in rural areas or in the unorganised sector. Confining the policy under Table 58 to already covered salaried sections would, therefore, be unreasonable and arbitrary and would deprive large segments in the rural areas or unorganised orwould be unjust and irrational and unfair.It is, therefore, the settled law that if a contract or a clause in a contract is found unreasonable or unfair or irrational one must look to the relative bargaining power of the contracting parties. In dotted line contracts there would be no occasion for a weaker party to bargain or to assume to have equal bargaining power. He has either to accept or leave the services or goods in terms of the dotted line contract. His option would be either to accept the unreasonable or unfair terms or forego the service forever. With a view to have the services of the goods, the party enters into a contract with unreasonable or unfair terms contained therein and he would be left with no option but to sign the contract.It is seen that the respondents are not seeking any direction in their favour to call upon the appellants to enter into a contractual relations of terms policy in Table 58. Their privilege and legitimate expectation to seek acceptance of policy of life insurance are their freedom. Instead they sought for a declaration that the policy confining to only salaried class from government,or reputed commercial firms is discriminatory offending Article 14. Denial thereof to larger segments violates their constitutional rights. We are of the considered view that they are right. They are not seeking any mandamus to direct the appellants to enter into contract of life insurance with them. The rest of the conditions age etc. are valid and do not call for interference. The offending clause extending the benefit only the salaried class in government,and reputed firms is unconstitutional. Subject to compliance with other terms and conditions, the appellant is free to enforce Table 58 policy with all eligible lives. The declaration given, therefore, is perfectly valid. The offending part is severable from the rest of the conditions.
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Liverpool & London S.P.& I. Asson. Ltd Vs. M.V. Sea Success I | of Defendant No. 1 Sea Success- I being sister ship of vessels "Sea Glory" and "Sea Ranger" in respect of whom the claim has been raised in the suit, we find it difficult to approve the view of the learned Single Judge in this regard. It cannot be overlooked that ship is a valuable commercial chattel and her arrest undeservingly severely prejudices third parties innocently as well as affect the interest of owner, crew member, cargo owner, shipper etc. adversely and, therefore, it is all the more necessary to analyse the plaint meaningfully at the threshold to find out whether it discloses cause of action or not and not on technical and formal reading that if discloses cause of action and wait for trial." The approach of the High Court, in our considered opinion, is not correct. For the purpose of rejecting a plaint it is not necessary to consider whether the averments made in the plaint prove the factum that the defendant No. 1 "Sea Success-I" is a sister ship of "Sea Glory" and "Sea Ranger" or the said two ships are beneficially owned by the defendant No. 2. The reasons which have been assigned in support of the said aforementioned finding that that the ship is a valuable commercial chattel and her arrest undeservingly prejudices third parties as well as affect the interest of owner and others is a question which must be gone into when passing a final order as regard interim arrest of ship or otherwise. For the aforementioned purpose the Vessel herein could file an application for vacation of stay. While considering such an application, the Court was entitled to consider not only a prima facie case but also the elements of balance of convenience and irreparable injury involved in the matter. In such a situation and particularly when both the parties disclose their documents which are in their possession, the Court would be in a position to ascertain even prima facie as to whether the Club has been able to make out that "Sea Glory" and "Sea Ranger" are sister vessels of the "Vessel".The reason for the aforementioned conclusion is that if a legal question is raised by the defendant in the written statement, it does not mean that the same has to be decided only by way of an application under Order 7 Rule 11 of the Code of Civil Procedure which may amount to pre-judging the matter.Furthermore, the question as to whether the asset of a 100% subsidy can be treated as an asset of the parent company would again depend upon the fact situation of each case. In The Aventicum [1978] 1 Lloyds L.R. it has been held: "I have no doubt that on a motion of this kind it is right to investigate the true beneficial ownership. I reject any suggestion that it is impossible "to pierce the corporate veil". I of course remember, as Mr. Howard urges, the case of Saloman v. Saloman & Co., [1897] A.C. 22, but of course it is plain that s.3(4) of the Act intends that the Court shall not be limited to a consideration of who is the registered owner or who is the person having legal ownership of the shares in the ship; the directions are to look at the beneficial ownership. Certainly in a case where there is a suggestion of a trusteeship or a nominee holding, there is no doubt that the Court can investigate it. I think that it may well be, without having to resolve the difference of opinion expressed by Mr. Justice Brandon and Mr. Justice Goff in the two cases to which I have referred that the Court has the power and should in some cases look even further." Yet again in The Andrea Ursula [1971] 1 Lloyds L.R. 145, the Court opined: "There is no definition in the Act of the expression "beneficially owned" as used in sect. 3(4). It could mean owned by someone who, whether he is the legal owner or not, is in any case the equitable owner. That would cover both the case of a ship the legal and equitable title to which are in one person, A, and also the case of a ship the legal title to which is in one person, A, but the equitable title to which is in another person, B. In the first case the ship would be beneficially owned by A, and in the second case by B. Trusts of ships, express or implied, are however, rare and the words seem to me to be capable also of a different and more practical meaning related not to title, legal or equitable, but to lawful possession and control with the use and benefit which are derived from them. If that meaning were right, a ship would be beneficially owned by a person who, whether he was the legal or equitable owner or not, lawfully had full possession and control of her, and, by virtue of such possession and control, had all the benefit and use of her which a legal or equitable owner would ordinarily have." Furthermore, the question as to whether the concept of ownership of a ship which has been introduced in 18th Century when there had been no joint stock companies and the concept of shares in a ship so as to encourage the individuals to pool their resources by a sister ship so that they may become co-owners is a matter which is required to be considered at an appropriate stage. We do not think that such a question can justifiably be gone into at this stage. We do not intend to delve deep into the questions as to whether the two ships named hereinabove are the sister ships of the respondent No. 1 Vessel or whether the requirement of law as regard ownership of a ship in the Respondent No. 1 as beneficial owner has been fulfilled or not. Such issues must be considered at an appropriate stage. CONCLUSION : | 1[ds]Some countries like Canada, Australia and South Africa as well as communist regimes like China and Korea have made statutes as a result whereof the maritime claims stand codified. The expression necessaries is not used in the said statutes except the statutes of United States. The domestic legislation indisputably will prevail over any international convention irrespective of the fact as to whether the country concerned is a party thereto or not.The rules for ship arrest in international fora are not uniform. Despite International Convention on the Arrest of Sea-going Ships 1952 as amended in the year 1999 either having been adopted by some countries or adopted by others, the law is enforced by the concerned countries having regard to their own domestic legal system. Where, how and when can a maritime claimant most advisedly arrest a ship in pursuit of its claim either in rem or in personem had all along been a complicated question keeping in view the principles of lex fori.As a matter of policy legislation or otherwise England did not want that arrears of insurance premium should be included as a maritime claim, but the same would not imply that in other countries despite the unpaid insurance premium being maritime claim, the same would not beregard to the changing scenario and keeping in tune with the changes in both domestic and international law as also the statutes adopted by several countries, a stand, however, bold, may have to be taken that unpaid insurance premium of P&I Club would come within the purview of the expression "Necessaries supplied to any ship". Other types of insurance, keeping in view the existing statutes may not amount to a "necessary". In any event, such a question, we are not called upon to answer at present. The discussions made hereinbefore under different sub-titles of this judgment separately and distinctly may not lead us to the said conclusion but the cumulative effect of the findings thereunder makes the conclusion inevitable. The question has not only been considered from the angle of history of the judicial decisions rendered by different Courts having great persuasive value but also from the angle that with the change in time interpretative changes are required to be made. We, therefore, in agreement with the judgment of the Bombay High Court, hold that unpaid insurance premium being a maritime claim would be enforceable inapproach of the High Court, in our considered opinion, is not correct. For the purpose of rejecting a plaint it is not necessary to consider whether the averments made in the plaint prove the factum that the defendant No. 1 "Sea Success-I" is a sister ship of "Sea Glory" and "Sea Ranger" or the said two ships are beneficially owned by the defendant No. 2. The reasons which have been assigned in support of the said aforementioned finding that that the ship is a valuable commercial chattel and her arrest undeservingly prejudices third parties as well as affect the interest of owner and others is a question which must be gone into when passing a final order as regard interim arrest of ship or otherwise. For the aforementioned purpose the Vessel herein could file an application for vacation of stay. While considering such an application, the Court was entitled to consider not only a prima facie case but also the elements of balance of convenience and irreparable injury involved in the matter. In such a situation and particularly when both the parties disclose their documents which are in their possession, the Court would be in a position to ascertain even prima facie as to whetherthe Club has been able to make out that "Sea Glory" and "Sea Ranger" are sister vessels of the"Vessel".The reason for the aforementioned conclusion is that if a legal question is raised by the defendant in the written statement, it does not mean that the same has to be decided only by way of an application under Order 7 Rule 11 of the Code of Civil Procedure which may amount to pre-judging the matter. | 1 | 24,154 | 732 | ### 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:
of Defendant No. 1 Sea Success- I being sister ship of vessels "Sea Glory" and "Sea Ranger" in respect of whom the claim has been raised in the suit, we find it difficult to approve the view of the learned Single Judge in this regard. It cannot be overlooked that ship is a valuable commercial chattel and her arrest undeservingly severely prejudices third parties innocently as well as affect the interest of owner, crew member, cargo owner, shipper etc. adversely and, therefore, it is all the more necessary to analyse the plaint meaningfully at the threshold to find out whether it discloses cause of action or not and not on technical and formal reading that if discloses cause of action and wait for trial." The approach of the High Court, in our considered opinion, is not correct. For the purpose of rejecting a plaint it is not necessary to consider whether the averments made in the plaint prove the factum that the defendant No. 1 "Sea Success-I" is a sister ship of "Sea Glory" and "Sea Ranger" or the said two ships are beneficially owned by the defendant No. 2. The reasons which have been assigned in support of the said aforementioned finding that that the ship is a valuable commercial chattel and her arrest undeservingly prejudices third parties as well as affect the interest of owner and others is a question which must be gone into when passing a final order as regard interim arrest of ship or otherwise. For the aforementioned purpose the Vessel herein could file an application for vacation of stay. While considering such an application, the Court was entitled to consider not only a prima facie case but also the elements of balance of convenience and irreparable injury involved in the matter. In such a situation and particularly when both the parties disclose their documents which are in their possession, the Court would be in a position to ascertain even prima facie as to whether the Club has been able to make out that "Sea Glory" and "Sea Ranger" are sister vessels of the "Vessel".The reason for the aforementioned conclusion is that if a legal question is raised by the defendant in the written statement, it does not mean that the same has to be decided only by way of an application under Order 7 Rule 11 of the Code of Civil Procedure which may amount to pre-judging the matter.Furthermore, the question as to whether the asset of a 100% subsidy can be treated as an asset of the parent company would again depend upon the fact situation of each case. In The Aventicum [1978] 1 Lloyds L.R. it has been held: "I have no doubt that on a motion of this kind it is right to investigate the true beneficial ownership. I reject any suggestion that it is impossible "to pierce the corporate veil". I of course remember, as Mr. Howard urges, the case of Saloman v. Saloman & Co., [1897] A.C. 22, but of course it is plain that s.3(4) of the Act intends that the Court shall not be limited to a consideration of who is the registered owner or who is the person having legal ownership of the shares in the ship; the directions are to look at the beneficial ownership. Certainly in a case where there is a suggestion of a trusteeship or a nominee holding, there is no doubt that the Court can investigate it. I think that it may well be, without having to resolve the difference of opinion expressed by Mr. Justice Brandon and Mr. Justice Goff in the two cases to which I have referred that the Court has the power and should in some cases look even further." Yet again in The Andrea Ursula [1971] 1 Lloyds L.R. 145, the Court opined: "There is no definition in the Act of the expression "beneficially owned" as used in sect. 3(4). It could mean owned by someone who, whether he is the legal owner or not, is in any case the equitable owner. That would cover both the case of a ship the legal and equitable title to which are in one person, A, and also the case of a ship the legal title to which is in one person, A, but the equitable title to which is in another person, B. In the first case the ship would be beneficially owned by A, and in the second case by B. Trusts of ships, express or implied, are however, rare and the words seem to me to be capable also of a different and more practical meaning related not to title, legal or equitable, but to lawful possession and control with the use and benefit which are derived from them. If that meaning were right, a ship would be beneficially owned by a person who, whether he was the legal or equitable owner or not, lawfully had full possession and control of her, and, by virtue of such possession and control, had all the benefit and use of her which a legal or equitable owner would ordinarily have." Furthermore, the question as to whether the concept of ownership of a ship which has been introduced in 18th Century when there had been no joint stock companies and the concept of shares in a ship so as to encourage the individuals to pool their resources by a sister ship so that they may become co-owners is a matter which is required to be considered at an appropriate stage. We do not think that such a question can justifiably be gone into at this stage. We do not intend to delve deep into the questions as to whether the two ships named hereinabove are the sister ships of the respondent No. 1 Vessel or whether the requirement of law as regard ownership of a ship in the Respondent No. 1 as beneficial owner has been fulfilled or not. Such issues must be considered at an appropriate stage. CONCLUSION :
### Response:
1
### Explanation:
Some countries like Canada, Australia and South Africa as well as communist regimes like China and Korea have made statutes as a result whereof the maritime claims stand codified. The expression necessaries is not used in the said statutes except the statutes of United States. The domestic legislation indisputably will prevail over any international convention irrespective of the fact as to whether the country concerned is a party thereto or not.The rules for ship arrest in international fora are not uniform. Despite International Convention on the Arrest of Sea-going Ships 1952 as amended in the year 1999 either having been adopted by some countries or adopted by others, the law is enforced by the concerned countries having regard to their own domestic legal system. Where, how and when can a maritime claimant most advisedly arrest a ship in pursuit of its claim either in rem or in personem had all along been a complicated question keeping in view the principles of lex fori.As a matter of policy legislation or otherwise England did not want that arrears of insurance premium should be included as a maritime claim, but the same would not imply that in other countries despite the unpaid insurance premium being maritime claim, the same would not beregard to the changing scenario and keeping in tune with the changes in both domestic and international law as also the statutes adopted by several countries, a stand, however, bold, may have to be taken that unpaid insurance premium of P&I Club would come within the purview of the expression "Necessaries supplied to any ship". Other types of insurance, keeping in view the existing statutes may not amount to a "necessary". In any event, such a question, we are not called upon to answer at present. The discussions made hereinbefore under different sub-titles of this judgment separately and distinctly may not lead us to the said conclusion but the cumulative effect of the findings thereunder makes the conclusion inevitable. The question has not only been considered from the angle of history of the judicial decisions rendered by different Courts having great persuasive value but also from the angle that with the change in time interpretative changes are required to be made. We, therefore, in agreement with the judgment of the Bombay High Court, hold that unpaid insurance premium being a maritime claim would be enforceable inapproach of the High Court, in our considered opinion, is not correct. For the purpose of rejecting a plaint it is not necessary to consider whether the averments made in the plaint prove the factum that the defendant No. 1 "Sea Success-I" is a sister ship of "Sea Glory" and "Sea Ranger" or the said two ships are beneficially owned by the defendant No. 2. The reasons which have been assigned in support of the said aforementioned finding that that the ship is a valuable commercial chattel and her arrest undeservingly prejudices third parties as well as affect the interest of owner and others is a question which must be gone into when passing a final order as regard interim arrest of ship or otherwise. For the aforementioned purpose the Vessel herein could file an application for vacation of stay. While considering such an application, the Court was entitled to consider not only a prima facie case but also the elements of balance of convenience and irreparable injury involved in the matter. In such a situation and particularly when both the parties disclose their documents which are in their possession, the Court would be in a position to ascertain even prima facie as to whetherthe Club has been able to make out that "Sea Glory" and "Sea Ranger" are sister vessels of the"Vessel".The reason for the aforementioned conclusion is that if a legal question is raised by the defendant in the written statement, it does not mean that the same has to be decided only by way of an application under Order 7 Rule 11 of the Code of Civil Procedure which may amount to pre-judging the matter.
|
State Of Maharashtra Vs. Dr. D Y Patil Vidyapeeth | General appearing for the Union of India, that the aforesaid reasons given by the High Court in coming to its prima facie conclusion were patently erroneous. On the other hand, Mr. P. Chidambaran and Dr. A.M. Singhvi, learned senior counsel, and other learned counsel appearing in the matters, supported the impugned order and also advanced arguments to the effect that the present case had to be tested having regard to the provisions of the Maharashtra Act XXVIII of 2015 which excluded deemed universities.8) We are not reproducing the submissions of counsel for both sides in detail as these questions of law are to be determined by the High Court in the writ petitions filed by the respondents herein. We, therefore, do not want to make any comments on the arguments raised by both sides so as not to influence the decision making process of the High Court. However, few comments are required to be made at this stage, which are as follows:(i) Insofar as judgment of the Constitution Bench of this Court in Modern Dental College and Research Centre case is concerned, it does not help the respondent universities at all. On the contrary, it is held by this Court in the said case that the process of admission encompasses not only Centralised Entrance Test (CET), but counselling as well. This is made abundantly clear by the Constitution Bench in its recent order dated September 22, 2016 in the case of State of Madhya Pradesh v. Jainarayan Chouksey & Ors. (Contempt Petition (C) No. 584 of 2016 in Civil Appeal No. 4060 of 2009) It is amazing that it is the respondents which had taken shelter under the aforesaid judgment in Modern Dental College and Research Centre case, before us this argument was abandoned and the respondents tried to distinguish this judgment, whereas the appellants heavily relied upon the said judgment.The question, however, is as to whether the said judgment is applicable to the deemed universities having regard to the provisions of the Maharashtra Act XXVIII of 2015, which aspect has to be decided by the High Court.(ii) Reliance upon the order dated August 26, 2016 passed by the Kerala High Court is also misconceived as the order passed pertained to private unaided medical institutions and not deemed universities. Since special leave petitions are preferred by the Union of India against the aforementioned order passed by the Kerala High Court, which are yet to be heard, we refrain ourselves from making any further comments.9) We are, however, confronted by a different situation altogether. The central issue highlighted above needs to be considered by the High Court. In the meantime, pursuant to the impugned orders passed by the High Court, the respondent universities, which had invited the successful students from the Merit List drawn on the basis of NEET to register for admission in their respective universities, went ahead with the counselling of those students who applied for admissions to them and a statement was also made at the Bar that even admissions have also been done on the basis of first counselling. So much so, classes have started and those admitted students are attending the course. We were informed that second and further counselling would be needed as many such students admitted in particular courses change their discipline of study and/or get admission in other medical institutions, thereby resulting into vacating the seats occupied by them. Last date for admission in MBBS/BDS courses is September 30, 2016. It was also argued by the learned counsel appearing for the respondents that admission was done strictly in accordance with the merit of the successful candidates of NEET who had applied in their respective universities.10) On the other hand, Mr. Diwan had made valiant effort to demonstrate that had there been a centralised counselling, many students who are higher in Merit could have got admission and they are deprived of their admission. It was pointed out that approximately 15,000 students had registered themselves with the State Government for taking admissions in the deemed universities of the State of Maharashtra on the understanding that the State would be conducting the counselling. A chart was submitted to show that had the list been prepared in respect of such students, the scenario would have been totally different in contrast with the admissions given by the respondents. In nutshell, it was contended that admission was given to many students whose ranking is much below in the Merit List and, therefore, admissions given by the deemed universities do not meet the triple test of Fair, Transparent and Non-exploitative. The respondents, on the other hand, countered the aforesaid argument by contending that the list which was prepared by the State Government in respect of the candidates who had registered with them was on the basis of applications received and it may not reflect the desire of such students to take admission in the respondent institutions. It was argued that the fee structure of the respondent universities was much higher than the Government colleges and even private unaided medical institutions and, therefore, those students who are not able to afford the fee may not be serious in getting admissions in their institutions. It was submitted that many of those students who got themselves registered with the State Government may have taken admission in Government colleges and other educational institutions not only of the State of Maharashtra but other such medical institutions spread throughout the country. In nutshell, their submission was that the exercise done by the appellants did not filter the aforesaid factors.11) This Court is conscious of the fact that it is dealing with the interim order passed by the High Court and the effect of the stay order given is that the respondent universities are permitted to do the counselling and admit the students. Having considered the respective submissions, our endeavour is to bring about an equitable solution in the context of the respondents, who are deemed universities and also keeping in mind the developments which have ensued. | 1[ds]8) We are not reproducing the submissions of counsel for both sides in detail as these questions of law are to be determined by the High Court in the writ petitions filed by the respondents herein. We, therefore, do not want to make any comments on the arguments raised by both sides so as not to influence the decision making process of the High Court. However, few comments are required to be made at this stage, which are as follows:(i) Insofar as judgment of the Constitution Bench of this Court in Modern Dental College and Research Centre case is concerned, it does not help the respondent universities at all. On the contrary, it is held by this Court in the said case that the process of admission encompasses not only Centralised Entrance Test (CET), but counselling as well. This is made abundantly clear by the Constitution Bench in its recent order dated September 22, 2016 in the case of State of Madhya Pradesh v. Jainarayan ChoukseyOrs. (Contempt Petition (C) No. 584 of 2016 in Civil Appeal No. 4060 of 2009) It is amazing that it is the respondents which had taken shelter under the aforesaid judgment in Modern Dental College and Research Centre case, before us this argument was abandoned and the respondents tried to distinguish this judgment, whereas the appellants heavily relied upon the saidReliance upon the order dated August 26, 2016 passed by the Kerala High Court is also misconceived as the order passed pertained to private unaided medical institutions and not deemed universities. Since special leave petitions are preferred by the Union of India against the aforementioned order passed by the Kerala High Court, which are yet to be heard, we refrain ourselves from making any further comments.9) We are, however, confronted by a different situation altogether. The central issue highlighted above needs to be considered by the High Court. In the meantime, pursuant to the impugned orders passed by the High Court, the respondent universities, which had invited the successful students from the Merit List drawn on the basis of NEET to register for admission in their respective universities, went ahead with the counselling of those students who applied for admissions to them and a statement was also made at the Bar that even admissions have also been done on the basis of first counselling. So much so, classes have started and those admitted students are attending the course. We were informed that second and further counselling would be needed as many such students admitted in particular courses change their discipline of study and/or get admission in other medical institutions, thereby resulting into vacating the seats occupied by them. Last date for admission in MBBS/BDS courses is September 30, 2016. It was also argued by the learned counsel appearing for the respondents that admission was done strictly in accordance with the merit of the successful candidates of NEET who had applied in their respectiveThis Court is conscious of the fact that it is dealing with the interim order passed by the High Court and the effect of the stay order given is that the respondent universities are permitted to do the counselling and admit the students. Having considered the respective submissions, our endeavour is to bring about an equitable solution in the context of the respondents, who are deemed universities and also keeping in mind the developments which have ensued. | 1 | 3,141 | 620 | ### 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:
General appearing for the Union of India, that the aforesaid reasons given by the High Court in coming to its prima facie conclusion were patently erroneous. On the other hand, Mr. P. Chidambaran and Dr. A.M. Singhvi, learned senior counsel, and other learned counsel appearing in the matters, supported the impugned order and also advanced arguments to the effect that the present case had to be tested having regard to the provisions of the Maharashtra Act XXVIII of 2015 which excluded deemed universities.8) We are not reproducing the submissions of counsel for both sides in detail as these questions of law are to be determined by the High Court in the writ petitions filed by the respondents herein. We, therefore, do not want to make any comments on the arguments raised by both sides so as not to influence the decision making process of the High Court. However, few comments are required to be made at this stage, which are as follows:(i) Insofar as judgment of the Constitution Bench of this Court in Modern Dental College and Research Centre case is concerned, it does not help the respondent universities at all. On the contrary, it is held by this Court in the said case that the process of admission encompasses not only Centralised Entrance Test (CET), but counselling as well. This is made abundantly clear by the Constitution Bench in its recent order dated September 22, 2016 in the case of State of Madhya Pradesh v. Jainarayan Chouksey & Ors. (Contempt Petition (C) No. 584 of 2016 in Civil Appeal No. 4060 of 2009) It is amazing that it is the respondents which had taken shelter under the aforesaid judgment in Modern Dental College and Research Centre case, before us this argument was abandoned and the respondents tried to distinguish this judgment, whereas the appellants heavily relied upon the said judgment.The question, however, is as to whether the said judgment is applicable to the deemed universities having regard to the provisions of the Maharashtra Act XXVIII of 2015, which aspect has to be decided by the High Court.(ii) Reliance upon the order dated August 26, 2016 passed by the Kerala High Court is also misconceived as the order passed pertained to private unaided medical institutions and not deemed universities. Since special leave petitions are preferred by the Union of India against the aforementioned order passed by the Kerala High Court, which are yet to be heard, we refrain ourselves from making any further comments.9) We are, however, confronted by a different situation altogether. The central issue highlighted above needs to be considered by the High Court. In the meantime, pursuant to the impugned orders passed by the High Court, the respondent universities, which had invited the successful students from the Merit List drawn on the basis of NEET to register for admission in their respective universities, went ahead with the counselling of those students who applied for admissions to them and a statement was also made at the Bar that even admissions have also been done on the basis of first counselling. So much so, classes have started and those admitted students are attending the course. We were informed that second and further counselling would be needed as many such students admitted in particular courses change their discipline of study and/or get admission in other medical institutions, thereby resulting into vacating the seats occupied by them. Last date for admission in MBBS/BDS courses is September 30, 2016. It was also argued by the learned counsel appearing for the respondents that admission was done strictly in accordance with the merit of the successful candidates of NEET who had applied in their respective universities.10) On the other hand, Mr. Diwan had made valiant effort to demonstrate that had there been a centralised counselling, many students who are higher in Merit could have got admission and they are deprived of their admission. It was pointed out that approximately 15,000 students had registered themselves with the State Government for taking admissions in the deemed universities of the State of Maharashtra on the understanding that the State would be conducting the counselling. A chart was submitted to show that had the list been prepared in respect of such students, the scenario would have been totally different in contrast with the admissions given by the respondents. In nutshell, it was contended that admission was given to many students whose ranking is much below in the Merit List and, therefore, admissions given by the deemed universities do not meet the triple test of Fair, Transparent and Non-exploitative. The respondents, on the other hand, countered the aforesaid argument by contending that the list which was prepared by the State Government in respect of the candidates who had registered with them was on the basis of applications received and it may not reflect the desire of such students to take admission in the respondent institutions. It was argued that the fee structure of the respondent universities was much higher than the Government colleges and even private unaided medical institutions and, therefore, those students who are not able to afford the fee may not be serious in getting admissions in their institutions. It was submitted that many of those students who got themselves registered with the State Government may have taken admission in Government colleges and other educational institutions not only of the State of Maharashtra but other such medical institutions spread throughout the country. In nutshell, their submission was that the exercise done by the appellants did not filter the aforesaid factors.11) This Court is conscious of the fact that it is dealing with the interim order passed by the High Court and the effect of the stay order given is that the respondent universities are permitted to do the counselling and admit the students. Having considered the respective submissions, our endeavour is to bring about an equitable solution in the context of the respondents, who are deemed universities and also keeping in mind the developments which have ensued.
### Response:
1
### Explanation:
8) We are not reproducing the submissions of counsel for both sides in detail as these questions of law are to be determined by the High Court in the writ petitions filed by the respondents herein. We, therefore, do not want to make any comments on the arguments raised by both sides so as not to influence the decision making process of the High Court. However, few comments are required to be made at this stage, which are as follows:(i) Insofar as judgment of the Constitution Bench of this Court in Modern Dental College and Research Centre case is concerned, it does not help the respondent universities at all. On the contrary, it is held by this Court in the said case that the process of admission encompasses not only Centralised Entrance Test (CET), but counselling as well. This is made abundantly clear by the Constitution Bench in its recent order dated September 22, 2016 in the case of State of Madhya Pradesh v. Jainarayan ChoukseyOrs. (Contempt Petition (C) No. 584 of 2016 in Civil Appeal No. 4060 of 2009) It is amazing that it is the respondents which had taken shelter under the aforesaid judgment in Modern Dental College and Research Centre case, before us this argument was abandoned and the respondents tried to distinguish this judgment, whereas the appellants heavily relied upon the saidReliance upon the order dated August 26, 2016 passed by the Kerala High Court is also misconceived as the order passed pertained to private unaided medical institutions and not deemed universities. Since special leave petitions are preferred by the Union of India against the aforementioned order passed by the Kerala High Court, which are yet to be heard, we refrain ourselves from making any further comments.9) We are, however, confronted by a different situation altogether. The central issue highlighted above needs to be considered by the High Court. In the meantime, pursuant to the impugned orders passed by the High Court, the respondent universities, which had invited the successful students from the Merit List drawn on the basis of NEET to register for admission in their respective universities, went ahead with the counselling of those students who applied for admissions to them and a statement was also made at the Bar that even admissions have also been done on the basis of first counselling. So much so, classes have started and those admitted students are attending the course. We were informed that second and further counselling would be needed as many such students admitted in particular courses change their discipline of study and/or get admission in other medical institutions, thereby resulting into vacating the seats occupied by them. Last date for admission in MBBS/BDS courses is September 30, 2016. It was also argued by the learned counsel appearing for the respondents that admission was done strictly in accordance with the merit of the successful candidates of NEET who had applied in their respectiveThis Court is conscious of the fact that it is dealing with the interim order passed by the High Court and the effect of the stay order given is that the respondent universities are permitted to do the counselling and admit the students. Having considered the respective submissions, our endeavour is to bring about an equitable solution in the context of the respondents, who are deemed universities and also keeping in mind the developments which have ensued.
|
Lekhraj Satramdas, Lalvani Vs. N.M. Shah, Deputy Custodian-Cum-Managing Officer & Others | 1950 Act have not been repealed and still continue to be in force. Under S. 10 (2) (b) of the 1950 Act the Deputy Custodian is the proper authority to cancel the appointment of a Manager and the order-Exs. P-13 and P-16, dated December 18, 1959 is, therefore, legally valid. It is true that the order Exs. P-13 and P-16 is signed by Mr. Mathur as "the Managing Officer-cum-Deputy Custodian of Evacuee Property" but the order of removal of the appellant from the management is valid because Mr. Mathur had the legal competence to make the order under the 1950 Act, though he has also described himself in that order as "Managing Officer?. It is well-established that when an authority passes an order which is within its competence, it cannot fail merely because it purports to be made under a wrong provision if it can be shown to be within its power under any other rule, and the validity of the impugned order should be judged on a consideration of its substance and not of its form. The principle is that we must ascribe the act of a public servant to an actual existing authority under which it would have validity rather than to one under which it would be void (See Balakotaiah v. Union of India, 1958 SCR 1052 at p. 1059: (AIR 1958 SC 232 at p. 236).We, therefore, reject the argument of the appellant on this aspect of the case. 5. In our opinion, the order of the Deputy Custodian-P-13 and P-16-removing the appellant from the management of the business is not vitiated by any illegality. But even on the assumption that the order of the Deputy Custodian terminating the management of the appellant is illegal, the appellant is not entitled to move the High Court for grant of a writ in the nature of mandamus under Art. 226 of the Constitution. The reason is that a writ of mandamus may be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge that statutory obligation. The chief function of the writ is to compel the performance of public duties prescribed by statute and to keep the subordinate tribunals and officers exercising public functions within the limits of their jurisdictions. In the present case, the appointment of the appellant as a Manager by the Custodian by virtue of his power under S. 10 (2) (b) of the 1950 Act is contractual in its nature and there is no statutory obligation as between him and the appellant. In our opinion, any duty or obligation falling upon a public servant out of a contract entered into by him as such public servant cannot be enforced by the machinery of a writ under Art. 226 of the Constitution. In Commr. of Income-tax, Bombay Presidency and Aden v. Bombay Trust Corporation Ltd., 63 Ind App 408: (AIR 1936 PC 269 ), an application was made under S. 45 for an order directing the Commissioner to set aside an assessment to income-tax and to repay the tax paid by the applicant the Bombay High Court made the order asked for but the decision of the Bombay High Court was set aside by the Judicial Committee. At p. 427 (of Ind App): (at p. 277 of AIR) of the report it is observed by the Judicial Committee :"Before Mandamus can issue to a public servant it must, therefore, be shown that a duty towards the applicant has been imposed upon the public servant by statute so that he can be charged thereon, and independently of any duty which as servant he may owe to the Crown, his principal." A similar view has been expressed by the Calcutta High Court in P. K. Banerjee v. L. J. Simonds. AIR 1947 Cal 307 . In our opinion, these cases lay down the correct law on the point. 6. We pass on to consider the next question presented on behalf of the appellant viz., whether there was a final allotment of the business in favour of the appellant by the Chief Settlement Commissioner. It was contended for the appellant that in view of Ex. P-5, dated April 25, 1956 there was final allotment of the business, though the terms of allotment had to be subsequently determined. In Ex. P-5 the Government of India state that "It has been decided in principle that the aforesaid evacuee concerns should be allotted to you" and the "terms of allotment would be communicated to you separately". Reference was made to Ex. P-8, dated June 21, 1956 wherein it is stated that the Government of India have decided that "the two evacuee concerns, viz., firms of Adam Hajee Peer Mohammed Essack and Hajee Ebrahim Kassan Cochinwala of Kozhikode are to be allotted to the present Manager Shri L. S. Lalvani and ultimately sold to him." It is also mentioned in the letter that "until the question of terms and conditions of allotment of the concerns is decided Shri Lalvani will continue to function as Custodians Manager for these concerns in terms of S. 10 (2) (b) of the Administration of Evacuee Property Act. 1950 read with R. 34 of the Rules made thereunder". It was submitted on behalf of the appellant that in view of these two letters it must be held that there was a final allotment of the business in favour of the appellant. We do not however, think there is any justification for this argument. It is manifest that the terms and conditions of allotment were not finally settled between the parties and there was no concluded contract of sale and, therefore, the appellant had no legal right to the business of the two concerns and the High Court was right in holding that the appellant was not entitled to the grant of a writ in the nature of mandamus with regard to the possession of the two business concerns. | 0[ds]5. In our opinion, the order of the Deputy Custodian-P-13 and P-16-removing the appellant from the management of the business is not vitiated by any illegality. But even on the assumption that the order of the Deputy Custodian terminating the management of the appellant is illegal, the appellant is not entitled to move the High Court for grant of a writ in the nature of mandamus under Art. 226 of the Constitution. The reason is that a writ of mandamus may be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge that statutory obligation. The chief function of the writ is to compel the performance of public duties prescribed by statute and to keep the subordinate tribunals and officers exercising public functions within the limits of their jurisdictions. In the present case, the appointment of the appellant as a Manager by the Custodian by virtue of his power under S. 10 (2) (b) of the 1950 Act is contractual in its nature and there is no statutory obligation as between him and the appellant. In our opinion, any duty or obligation falling upon a public servant out of a contract entered into by him as such public servant cannot be enforced by the machinery of a writ under Art. 226 of the Constitution. In Commr. of Income-tax, Bombay Presidency and Aden v. Bombay Trust Corporation Ltd., 63 Ind App 408: (AIR 1936 PC 269 ), an application was made under S. 45 for an order directing the Commissioner to set aside an assessment to income-tax and to repay the tax paid by the applicant the Bombay High Court made the order asked for but the decision of the Bombay High Court was set aside by the Judicial Committee. At p. 427 (of Ind App): (at p. 277 of AIR) of the report it is observed by the Judicial Committee :"Before Mandamus can issue to a public servant it must, therefore, be shown that a duty towards the applicant has been imposed upon the public servant by statute so that he can be charged thereon, and independently of any duty which as servant he may owe to the Crown, his principal."A similar view has been expressed by the Calcutta High Court in P. K. Banerjee v. L. J. Simonds. AIR 1947 Cal 307 . In our opinion, these cases lay down the correct law on the point6. We pass on to consider the next question presented on behalf of the appellant viz., whether there was a final allotment of the business in favour of the appellant by the Chief Settlement Commissioner. It was contended for the appellant that in view of Ex. P-5, dated April 25, 1956 there was final allotment of the business, though the terms of allotment had to be subsequently determined. In Ex. P-5 the Government of India state that "It has been decided in principle that the aforesaid evacuee concerns should be allotted to you" and the "terms of allotment would be communicated to you separately". Reference was made to Ex. P-8, dated June 21, 1956 wherein it is stated that the Government of India have decided that "the two evacuee concerns, viz., firms of Adam Hajee Peer Mohammed Essack and Hajee Ebrahim Kassan Cochinwala of Kozhikode are to be allotted to the present Manager Shri L. S. Lalvani and ultimately sold to him." It is also mentioned in the letter that "until the question of terms and conditions of allotment of the concerns is decided Shri Lalvani will continue to function as Custodians Manager for these concerns in terms of S. 10 (2) (b) of the Administration of Evacuee Property Act. 1950 read with R. 34 of the Rules made thereunder". It was submitted on behalf of the appellant that in view of these two letters it must be held that there was a final allotment of the business in favour of the appellant. We do not however, think there is any justification for this argument. It is manifest that the terms and conditions of allotment were not finally settled between the parties and there was no concluded contract of sale and, therefore, the appellant had no legal right to the business of the two concerns and the High Court was right in holding that the appellant was not entitled to the grant of a writ in the nature of mandamus with regard to the possession of the two business concerns. | 0 | 2,787 | 836 | ### 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:
1950 Act have not been repealed and still continue to be in force. Under S. 10 (2) (b) of the 1950 Act the Deputy Custodian is the proper authority to cancel the appointment of a Manager and the order-Exs. P-13 and P-16, dated December 18, 1959 is, therefore, legally valid. It is true that the order Exs. P-13 and P-16 is signed by Mr. Mathur as "the Managing Officer-cum-Deputy Custodian of Evacuee Property" but the order of removal of the appellant from the management is valid because Mr. Mathur had the legal competence to make the order under the 1950 Act, though he has also described himself in that order as "Managing Officer?. It is well-established that when an authority passes an order which is within its competence, it cannot fail merely because it purports to be made under a wrong provision if it can be shown to be within its power under any other rule, and the validity of the impugned order should be judged on a consideration of its substance and not of its form. The principle is that we must ascribe the act of a public servant to an actual existing authority under which it would have validity rather than to one under which it would be void (See Balakotaiah v. Union of India, 1958 SCR 1052 at p. 1059: (AIR 1958 SC 232 at p. 236).We, therefore, reject the argument of the appellant on this aspect of the case. 5. In our opinion, the order of the Deputy Custodian-P-13 and P-16-removing the appellant from the management of the business is not vitiated by any illegality. But even on the assumption that the order of the Deputy Custodian terminating the management of the appellant is illegal, the appellant is not entitled to move the High Court for grant of a writ in the nature of mandamus under Art. 226 of the Constitution. The reason is that a writ of mandamus may be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge that statutory obligation. The chief function of the writ is to compel the performance of public duties prescribed by statute and to keep the subordinate tribunals and officers exercising public functions within the limits of their jurisdictions. In the present case, the appointment of the appellant as a Manager by the Custodian by virtue of his power under S. 10 (2) (b) of the 1950 Act is contractual in its nature and there is no statutory obligation as between him and the appellant. In our opinion, any duty or obligation falling upon a public servant out of a contract entered into by him as such public servant cannot be enforced by the machinery of a writ under Art. 226 of the Constitution. In Commr. of Income-tax, Bombay Presidency and Aden v. Bombay Trust Corporation Ltd., 63 Ind App 408: (AIR 1936 PC 269 ), an application was made under S. 45 for an order directing the Commissioner to set aside an assessment to income-tax and to repay the tax paid by the applicant the Bombay High Court made the order asked for but the decision of the Bombay High Court was set aside by the Judicial Committee. At p. 427 (of Ind App): (at p. 277 of AIR) of the report it is observed by the Judicial Committee :"Before Mandamus can issue to a public servant it must, therefore, be shown that a duty towards the applicant has been imposed upon the public servant by statute so that he can be charged thereon, and independently of any duty which as servant he may owe to the Crown, his principal." A similar view has been expressed by the Calcutta High Court in P. K. Banerjee v. L. J. Simonds. AIR 1947 Cal 307 . In our opinion, these cases lay down the correct law on the point. 6. We pass on to consider the next question presented on behalf of the appellant viz., whether there was a final allotment of the business in favour of the appellant by the Chief Settlement Commissioner. It was contended for the appellant that in view of Ex. P-5, dated April 25, 1956 there was final allotment of the business, though the terms of allotment had to be subsequently determined. In Ex. P-5 the Government of India state that "It has been decided in principle that the aforesaid evacuee concerns should be allotted to you" and the "terms of allotment would be communicated to you separately". Reference was made to Ex. P-8, dated June 21, 1956 wherein it is stated that the Government of India have decided that "the two evacuee concerns, viz., firms of Adam Hajee Peer Mohammed Essack and Hajee Ebrahim Kassan Cochinwala of Kozhikode are to be allotted to the present Manager Shri L. S. Lalvani and ultimately sold to him." It is also mentioned in the letter that "until the question of terms and conditions of allotment of the concerns is decided Shri Lalvani will continue to function as Custodians Manager for these concerns in terms of S. 10 (2) (b) of the Administration of Evacuee Property Act. 1950 read with R. 34 of the Rules made thereunder". It was submitted on behalf of the appellant that in view of these two letters it must be held that there was a final allotment of the business in favour of the appellant. We do not however, think there is any justification for this argument. It is manifest that the terms and conditions of allotment were not finally settled between the parties and there was no concluded contract of sale and, therefore, the appellant had no legal right to the business of the two concerns and the High Court was right in holding that the appellant was not entitled to the grant of a writ in the nature of mandamus with regard to the possession of the two business concerns.
### Response:
0
### Explanation:
5. In our opinion, the order of the Deputy Custodian-P-13 and P-16-removing the appellant from the management of the business is not vitiated by any illegality. But even on the assumption that the order of the Deputy Custodian terminating the management of the appellant is illegal, the appellant is not entitled to move the High Court for grant of a writ in the nature of mandamus under Art. 226 of the Constitution. The reason is that a writ of mandamus may be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge that statutory obligation. The chief function of the writ is to compel the performance of public duties prescribed by statute and to keep the subordinate tribunals and officers exercising public functions within the limits of their jurisdictions. In the present case, the appointment of the appellant as a Manager by the Custodian by virtue of his power under S. 10 (2) (b) of the 1950 Act is contractual in its nature and there is no statutory obligation as between him and the appellant. In our opinion, any duty or obligation falling upon a public servant out of a contract entered into by him as such public servant cannot be enforced by the machinery of a writ under Art. 226 of the Constitution. In Commr. of Income-tax, Bombay Presidency and Aden v. Bombay Trust Corporation Ltd., 63 Ind App 408: (AIR 1936 PC 269 ), an application was made under S. 45 for an order directing the Commissioner to set aside an assessment to income-tax and to repay the tax paid by the applicant the Bombay High Court made the order asked for but the decision of the Bombay High Court was set aside by the Judicial Committee. At p. 427 (of Ind App): (at p. 277 of AIR) of the report it is observed by the Judicial Committee :"Before Mandamus can issue to a public servant it must, therefore, be shown that a duty towards the applicant has been imposed upon the public servant by statute so that he can be charged thereon, and independently of any duty which as servant he may owe to the Crown, his principal."A similar view has been expressed by the Calcutta High Court in P. K. Banerjee v. L. J. Simonds. AIR 1947 Cal 307 . In our opinion, these cases lay down the correct law on the point6. We pass on to consider the next question presented on behalf of the appellant viz., whether there was a final allotment of the business in favour of the appellant by the Chief Settlement Commissioner. It was contended for the appellant that in view of Ex. P-5, dated April 25, 1956 there was final allotment of the business, though the terms of allotment had to be subsequently determined. In Ex. P-5 the Government of India state that "It has been decided in principle that the aforesaid evacuee concerns should be allotted to you" and the "terms of allotment would be communicated to you separately". Reference was made to Ex. P-8, dated June 21, 1956 wherein it is stated that the Government of India have decided that "the two evacuee concerns, viz., firms of Adam Hajee Peer Mohammed Essack and Hajee Ebrahim Kassan Cochinwala of Kozhikode are to be allotted to the present Manager Shri L. S. Lalvani and ultimately sold to him." It is also mentioned in the letter that "until the question of terms and conditions of allotment of the concerns is decided Shri Lalvani will continue to function as Custodians Manager for these concerns in terms of S. 10 (2) (b) of the Administration of Evacuee Property Act. 1950 read with R. 34 of the Rules made thereunder". It was submitted on behalf of the appellant that in view of these two letters it must be held that there was a final allotment of the business in favour of the appellant. We do not however, think there is any justification for this argument. It is manifest that the terms and conditions of allotment were not finally settled between the parties and there was no concluded contract of sale and, therefore, the appellant had no legal right to the business of the two concerns and the High Court was right in holding that the appellant was not entitled to the grant of a writ in the nature of mandamus with regard to the possession of the two business concerns.
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M.S. BHATI Vs. NATIONAL INSURANCE COMPANY LTD | driving license….? 9. Learned counsel appearing on behalf of the insurer states, on instructions, that the third party claims which were awarded by the MACT have been duly satisfied. 10. It has been submitted on behalf of the appellant that the definition of the expression ?light motor vehicle? in Section 2(21) of the Motor Vehicles Act, 1988 covers a transport vehicle of which the gross weight does not exceed 7500 kilograms. It was submitted that the license of the deceased driver to drive a light motor vehicle was valid between 16 August 1994 and 18 May 2013 and would cover a transport vehicle whose gross weight was less than 7,500 kgs. Reliance has been placed on a decision of three Judge Bench of this Court in Mukund Dewangan vs. Oriental Insurance Co. Ltd. (2017) 14 SCC 663. 11. Learned counsel appearing on behalf of the insurer submitted that the District Forum correctly rejected the claim, since even according to the appellant, the license for a transport vehicle of the deceased driver had been renewed at 2.42 p.m. on 11 April 2008, after the accident took place in which the driver had died on the spot. Hence, it was submitted that the renewal of the transport license in favour of a dead individual was not a valid renewal in the eyes of law and as a matter of fact, according to the insurer even the period of license had expired on 16 January 2008. 12. Learned counsel further submitted on the alternative plea that the decision in Mukund Dewangan (supra) has been reserved for reconsideration by a larger Bench in M/s. Bajaj Alliance General Insurance Co. Ltd. vs. Rambha Devi & Ors. (Civil Appeal No 841 of 2018) by a two Judge Bench of this Court on 3 May 2018. 13. The law which has been laid down by a three Judge Bench of this Court in Mukund Dewangan (supra) binds this Court. As a matter of judicial discipline, we are duty bound to follow that decision which continues to hold the field. 14. In Mukund Dewangan (supra), a three Judge Bench had been constituted on a reference for resolving the issue as to whether a driver who has a license to drive a light motor vehicle and is driving a transport vehicle of that class is required additionally to obtain an endorsement to drive a transport vehicle. 15. The conflict of decision between two Judge Benches of this Court was resolved in Mukund Dewangan (supra). The conclusions in the decision of this Court read thus: ?60.1 ‘Light motor vehicle? as defined in section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54 of 1994. 60.2 A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller, ?unladen weight? of which does not exceed 7500 kg. and holder of a driving licence to drive class of ?light motor vehicle? as provided in section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg. or a motor car or tractor or roadroller, the ?unladen weight? of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under section 10(2)(d) continues to be valid after Amendment Act 54/1994 and 28.3.2001 in the form. 60.3 The effect of the amendment made by virtue of Act No.54 of 1994 w.e.f. 14-11-1994 while substituting clauses (e) to (h) of section 10(2) which contained ?medium goods vehicle? in section 10(2)(e), medium passenger motor vehicle in section 10(2)(f), heavy goods vehicle in section 10(2)(g)and ?heavy passenger motor vehicle? in section 10(2)(h) with expression ‘transport vehicle? as substituted in section 10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle, from the purview of section 10(2) (d) and section 2(41) of the Act i.e. light motor vehicle. 60.4 The effect of amendment of Form 4 by insertion of ?transport vehicle? is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of ?light motor vehicle? continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect.? 16. The fact that the driver had a license to drive a light motor vehicle which was valid on the date of the accident is not in dispute. The MACT returned a finding that the LMV license was valid from 16 August 1994 to 18 May 2013. The insurer has not urged anything in the course of the present proceedings to dispute this finding of fact. We have therefore proceeded on the basis that the driver had a valid LMV license on the date of the accident. Section 2(21) of the Motor Vehicles Act, 1988 defines the expression ?light motor vehicle? as follows:- ?(21) ?Light Motor Vehicle? means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or roadroller the unladen weight of any of which, does not exceed 7,500 kilograms;? 17. The above provision has been interpreted by the three Judge Bench of this Court in Mukund Dewangan(supra). The conclusions have been extracted earlier. It is not disputed by the insurer in the course of these proceedings that the gross weight of the vehicle was in conformity with Section 2(21). | 1[ds]13. The law which has been laid down by a three Judge Bench of this Court in Mukund Dewangan (supra) binds this Court. As a matter of judicial discipline, we are duty bound to follow that decision which continues to hold the field16. The fact that the driver had a license to drive a light motor vehicle which was valid on the date of the accident is not in dispute. The MACT returned a finding that the LMV license was valid from 16 August 1994 to 18 May 2013. The insurer has not urged anything in the course of the present proceedings to dispute this finding of fact. We have therefore proceeded on the basis that the driver had a valid LMV license on the date of the accident17. The above provision has been interpreted by the three Judge Bench of this Court in Mukund Dewangan(supra). The conclusions have been extracted earlier. It is not disputed by the insurer in the course of these proceedings that the gross weight of the vehicle was in conformity with Section 2(21). | 1 | 1,685 | 201 | ### 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:
driving license….? 9. Learned counsel appearing on behalf of the insurer states, on instructions, that the third party claims which were awarded by the MACT have been duly satisfied. 10. It has been submitted on behalf of the appellant that the definition of the expression ?light motor vehicle? in Section 2(21) of the Motor Vehicles Act, 1988 covers a transport vehicle of which the gross weight does not exceed 7500 kilograms. It was submitted that the license of the deceased driver to drive a light motor vehicle was valid between 16 August 1994 and 18 May 2013 and would cover a transport vehicle whose gross weight was less than 7,500 kgs. Reliance has been placed on a decision of three Judge Bench of this Court in Mukund Dewangan vs. Oriental Insurance Co. Ltd. (2017) 14 SCC 663. 11. Learned counsel appearing on behalf of the insurer submitted that the District Forum correctly rejected the claim, since even according to the appellant, the license for a transport vehicle of the deceased driver had been renewed at 2.42 p.m. on 11 April 2008, after the accident took place in which the driver had died on the spot. Hence, it was submitted that the renewal of the transport license in favour of a dead individual was not a valid renewal in the eyes of law and as a matter of fact, according to the insurer even the period of license had expired on 16 January 2008. 12. Learned counsel further submitted on the alternative plea that the decision in Mukund Dewangan (supra) has been reserved for reconsideration by a larger Bench in M/s. Bajaj Alliance General Insurance Co. Ltd. vs. Rambha Devi & Ors. (Civil Appeal No 841 of 2018) by a two Judge Bench of this Court on 3 May 2018. 13. The law which has been laid down by a three Judge Bench of this Court in Mukund Dewangan (supra) binds this Court. As a matter of judicial discipline, we are duty bound to follow that decision which continues to hold the field. 14. In Mukund Dewangan (supra), a three Judge Bench had been constituted on a reference for resolving the issue as to whether a driver who has a license to drive a light motor vehicle and is driving a transport vehicle of that class is required additionally to obtain an endorsement to drive a transport vehicle. 15. The conflict of decision between two Judge Benches of this Court was resolved in Mukund Dewangan (supra). The conclusions in the decision of this Court read thus: ?60.1 ‘Light motor vehicle? as defined in section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54 of 1994. 60.2 A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller, ?unladen weight? of which does not exceed 7500 kg. and holder of a driving licence to drive class of ?light motor vehicle? as provided in section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg. or a motor car or tractor or roadroller, the ?unladen weight? of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under section 10(2)(d) continues to be valid after Amendment Act 54/1994 and 28.3.2001 in the form. 60.3 The effect of the amendment made by virtue of Act No.54 of 1994 w.e.f. 14-11-1994 while substituting clauses (e) to (h) of section 10(2) which contained ?medium goods vehicle? in section 10(2)(e), medium passenger motor vehicle in section 10(2)(f), heavy goods vehicle in section 10(2)(g)and ?heavy passenger motor vehicle? in section 10(2)(h) with expression ‘transport vehicle? as substituted in section 10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle, from the purview of section 10(2) (d) and section 2(41) of the Act i.e. light motor vehicle. 60.4 The effect of amendment of Form 4 by insertion of ?transport vehicle? is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of ?light motor vehicle? continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect.? 16. The fact that the driver had a license to drive a light motor vehicle which was valid on the date of the accident is not in dispute. The MACT returned a finding that the LMV license was valid from 16 August 1994 to 18 May 2013. The insurer has not urged anything in the course of the present proceedings to dispute this finding of fact. We have therefore proceeded on the basis that the driver had a valid LMV license on the date of the accident. Section 2(21) of the Motor Vehicles Act, 1988 defines the expression ?light motor vehicle? as follows:- ?(21) ?Light Motor Vehicle? means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or roadroller the unladen weight of any of which, does not exceed 7,500 kilograms;? 17. The above provision has been interpreted by the three Judge Bench of this Court in Mukund Dewangan(supra). The conclusions have been extracted earlier. It is not disputed by the insurer in the course of these proceedings that the gross weight of the vehicle was in conformity with Section 2(21).
### Response:
1
### Explanation:
13. The law which has been laid down by a three Judge Bench of this Court in Mukund Dewangan (supra) binds this Court. As a matter of judicial discipline, we are duty bound to follow that decision which continues to hold the field16. The fact that the driver had a license to drive a light motor vehicle which was valid on the date of the accident is not in dispute. The MACT returned a finding that the LMV license was valid from 16 August 1994 to 18 May 2013. The insurer has not urged anything in the course of the present proceedings to dispute this finding of fact. We have therefore proceeded on the basis that the driver had a valid LMV license on the date of the accident17. The above provision has been interpreted by the three Judge Bench of this Court in Mukund Dewangan(supra). The conclusions have been extracted earlier. It is not disputed by the insurer in the course of these proceedings that the gross weight of the vehicle was in conformity with Section 2(21).
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Marikar (Motors) Limited, Trivandrum Vs. Sales Tax Officer, Special Circle, Trivandrum | Sales Tax Act, 1125, is beyond the competence of the State Legislature and is invalid.On behalf of the respondent, the Solicitor-General referred to the decision of this Court in Instalment Supply (P.) Ltd. and Another v. The Union of India and Others ([1962] 2 S.C.R. 644; 12 S.T.C. 489], but the material facts of that case are different. The question which arose for consideration in that case was the constitutional validity of section 24 of the Bengal Finance (Sales Tax) Act, 1941, as extended to Delhi State which provided as follows :-"Sale means any transfer of property in goods for cash or deferred payment or other valuable consideration, including a transfer of property in goods involved in the execution of a contract, but does not include a mortgage, hypothecation, charge or pledge.Explanation 1. - A transfer of goods on hire-purchase or other instalment system of payment shall, notwithstanding that the seller retains a title to any goods as security for payment of the price, be deemed to be a sale."5. It was argued that the explanation had the effect of extending the concept of "sale" to what, in law, was not a real sale, but only an incipient or inchoate sale, and that in so far as the law had extended the definition of "sale" it was unconstitutional. The argument was rejected by this Court. It was pointed out that under Article 246(4) of the Constitution it was Parliament which had the power to legislate for Part C States, that the power was untrammelled by the limitations prescribed by Article 246, clauses (2) and (3), and Entry 54 of List II, that the power of Parliament was plenary and absolute subject only to such restrictions as are imposed by the Constitution, and there was none material to the present question. It was, therefore, competent for Parliament to impose a tax on hire-purchase transactions and impose it under the name of sales tax. In Mithan Lal v. The State of Delhi and Another ([1959] S.C.R. 445; 9 S.T.C. 417), a similar question arose whether Parliament can enact a law imposing tax on the supply of materials used in building contracts. It was held by this Court for the same reasons that it was within the competence of Parliament to impose such a tax and the decision in The State of Madras v. Gannon Dunkerley & Co. (Madras) ltd. ([1959] S.C.R. 379; 9 S.T.C. 353), was held inapplicable. That decision was given on a statute passed by the Provincial Legislature under the Government of India Act, 1935, and it was pointed out in that case that the power of the Provincial Legislature to impose a tax on sales under Entry 48 in List II so Schedule VII of the Government of India Act, 1935, did not extend to imposing a tax on the value of material in building contracts which are entire and indivisible.The second argument of the appellant was that the Kerala Surcharge on Taxes Act, 1957, as amended by Kerala Act 12 of 1960 was discriminatory in character and violated the provisions under Article 14 of the Constitution. It was stated that levy of surcharge on those whose turnover was above Rs. 30, 000 resulted in illegal discrimination against those whose turnover exceeded that amount, especially when the surcharge cannot be passed on to the consumer. It was contended that the classification was based on no intelligible criteria and there was no nexus with the objects sough to be be achieved by the Act. Section 3 of the Kerala Surcharge on Taxes Act, 1957 (Act 11 of 1957) states as follows :"3. Levy of surcharge on sales and purchase taxes :(1) The tax payable under the Travancore-Cochin General Sales Tax Act, 1125, or the Madras General Sales Tax Act, 1939, shall, in the case of a dealer whose turnover exceeds thirty thousand rupees in a year, be increased by a surcharge at the rate two and a half per centum of the tax payable for that year and the provisions of the Travancore-Cochin General Sales Tax Act, 1125, or the Madras General Sales Tax Act, 1939, shall, as the case may be, apply to the levy and collection of the said surcharge :Provided that where in respect of declared goods as defined in clause (c) of section 2 of the Central Sales Tax Act, 1956, the tax payable by such dealer under the Travancore-Cochin General Sales Tax Act, 1125, or the Madras General Sales Tax Act, 1939, together with the surcharge payable under this sub-section, exceeds two per centum of the sale or purchase price, the rate of surcharge in respect of such goods shall be reduced to such an extent that the tax and the surcharge together shall not exceed two per centum of the sale or purchase price.(2) Notwithstanding anything contained in sub-section (1) of section 11 of the Travancore-Cochin General Sales Tax Act, 1125, or in sub-section (1) of section 8B of the Madras General Sales Tax Act, 1939, no dealer referred to in sub-section (1) shall be entitled to collect the surcharge payable under the said sub-section."6. It is conceded that the 2 1/2 per cent. levy referred to in section 3(1) has been increased by section 2 of the Kerala Surcharge on Taxes (Amendment) Act, 1960 (Kerala Act 12 of 1960). After arguing the point for some time Mr. Niren De conceded that in the writ petitions necessary particulars with regard to challenge under Article 14 of the Constitution have not been pleaded and proper materials have not been placed before the High Court in support of this contention. Mr. Niren De ultimately said that he did not wish to press this argument in the present case.7. For the reasons already given, we consider that the orders of assessment of sales tax made by the respondent for the two assessment years 1960-61 and 1961-62 are illegal in so far as the hire-purchase transactions are included in the computation of the taxable turnover of the appellant. | 1[ds]The argument put forward on behalf of the appellant isand must be accepted as correct.For the reasons already given, we consider that the orders of assessment of sales tax made by the respondent for the two assessment years62 are illegal in so far as thetransactions are included in the computation of the taxable turnover of the appellant. | 1 | 2,781 | 63 | ### 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:
Sales Tax Act, 1125, is beyond the competence of the State Legislature and is invalid.On behalf of the respondent, the Solicitor-General referred to the decision of this Court in Instalment Supply (P.) Ltd. and Another v. The Union of India and Others ([1962] 2 S.C.R. 644; 12 S.T.C. 489], but the material facts of that case are different. The question which arose for consideration in that case was the constitutional validity of section 24 of the Bengal Finance (Sales Tax) Act, 1941, as extended to Delhi State which provided as follows :-"Sale means any transfer of property in goods for cash or deferred payment or other valuable consideration, including a transfer of property in goods involved in the execution of a contract, but does not include a mortgage, hypothecation, charge or pledge.Explanation 1. - A transfer of goods on hire-purchase or other instalment system of payment shall, notwithstanding that the seller retains a title to any goods as security for payment of the price, be deemed to be a sale."5. It was argued that the explanation had the effect of extending the concept of "sale" to what, in law, was not a real sale, but only an incipient or inchoate sale, and that in so far as the law had extended the definition of "sale" it was unconstitutional. The argument was rejected by this Court. It was pointed out that under Article 246(4) of the Constitution it was Parliament which had the power to legislate for Part C States, that the power was untrammelled by the limitations prescribed by Article 246, clauses (2) and (3), and Entry 54 of List II, that the power of Parliament was plenary and absolute subject only to such restrictions as are imposed by the Constitution, and there was none material to the present question. It was, therefore, competent for Parliament to impose a tax on hire-purchase transactions and impose it under the name of sales tax. In Mithan Lal v. The State of Delhi and Another ([1959] S.C.R. 445; 9 S.T.C. 417), a similar question arose whether Parliament can enact a law imposing tax on the supply of materials used in building contracts. It was held by this Court for the same reasons that it was within the competence of Parliament to impose such a tax and the decision in The State of Madras v. Gannon Dunkerley & Co. (Madras) ltd. ([1959] S.C.R. 379; 9 S.T.C. 353), was held inapplicable. That decision was given on a statute passed by the Provincial Legislature under the Government of India Act, 1935, and it was pointed out in that case that the power of the Provincial Legislature to impose a tax on sales under Entry 48 in List II so Schedule VII of the Government of India Act, 1935, did not extend to imposing a tax on the value of material in building contracts which are entire and indivisible.The second argument of the appellant was that the Kerala Surcharge on Taxes Act, 1957, as amended by Kerala Act 12 of 1960 was discriminatory in character and violated the provisions under Article 14 of the Constitution. It was stated that levy of surcharge on those whose turnover was above Rs. 30, 000 resulted in illegal discrimination against those whose turnover exceeded that amount, especially when the surcharge cannot be passed on to the consumer. It was contended that the classification was based on no intelligible criteria and there was no nexus with the objects sough to be be achieved by the Act. Section 3 of the Kerala Surcharge on Taxes Act, 1957 (Act 11 of 1957) states as follows :"3. Levy of surcharge on sales and purchase taxes :(1) The tax payable under the Travancore-Cochin General Sales Tax Act, 1125, or the Madras General Sales Tax Act, 1939, shall, in the case of a dealer whose turnover exceeds thirty thousand rupees in a year, be increased by a surcharge at the rate two and a half per centum of the tax payable for that year and the provisions of the Travancore-Cochin General Sales Tax Act, 1125, or the Madras General Sales Tax Act, 1939, shall, as the case may be, apply to the levy and collection of the said surcharge :Provided that where in respect of declared goods as defined in clause (c) of section 2 of the Central Sales Tax Act, 1956, the tax payable by such dealer under the Travancore-Cochin General Sales Tax Act, 1125, or the Madras General Sales Tax Act, 1939, together with the surcharge payable under this sub-section, exceeds two per centum of the sale or purchase price, the rate of surcharge in respect of such goods shall be reduced to such an extent that the tax and the surcharge together shall not exceed two per centum of the sale or purchase price.(2) Notwithstanding anything contained in sub-section (1) of section 11 of the Travancore-Cochin General Sales Tax Act, 1125, or in sub-section (1) of section 8B of the Madras General Sales Tax Act, 1939, no dealer referred to in sub-section (1) shall be entitled to collect the surcharge payable under the said sub-section."6. It is conceded that the 2 1/2 per cent. levy referred to in section 3(1) has been increased by section 2 of the Kerala Surcharge on Taxes (Amendment) Act, 1960 (Kerala Act 12 of 1960). After arguing the point for some time Mr. Niren De conceded that in the writ petitions necessary particulars with regard to challenge under Article 14 of the Constitution have not been pleaded and proper materials have not been placed before the High Court in support of this contention. Mr. Niren De ultimately said that he did not wish to press this argument in the present case.7. For the reasons already given, we consider that the orders of assessment of sales tax made by the respondent for the two assessment years 1960-61 and 1961-62 are illegal in so far as the hire-purchase transactions are included in the computation of the taxable turnover of the appellant.
### Response:
1
### Explanation:
The argument put forward on behalf of the appellant isand must be accepted as correct.For the reasons already given, we consider that the orders of assessment of sales tax made by the respondent for the two assessment years62 are illegal in so far as thetransactions are included in the computation of the taxable turnover of the appellant.
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Satya Dev Bushahri* Vs. Padam Dev And Others | 1-12-1951. The appellant relied on certain letters and a telegram which were sent on behalf on the respondent on 3-10-1951, 27-11-1951 and 30-11-1951 as amounting to an acceptance of the contract. But no such point was taken before the Tribunal where it was admitted that the material date was 12-10-1951. As the question is one of fact, the appellant cannot be permitted at this stage to start a new and inconsistent case, and contend that there was an acceptance of the contract in October or November 1951.It was further argued that even on the footing that there was acceptance of the contract when the goods were despatched on 1-12-1951, that was sufficient to disqualify the respondent, as the terminus ad quo of the period during which the disqualification was operative was not the date of declaration which was 30-11-1951 but the date of the publication thereof in the Gazette, which was 20-11-1951. It may be conceded in favour of the appellant that the observation of this Court in - Chatturbhuj Vithaldas v. Moreshwar Parashram (A) that the material period starts with the nomination and ends with the announcement was not a decision on the point, as it proceeded on an agreed statement of counsel on both sides. But as the appellant contended before the Tribunal that the material date was the date of nomination and the entire trial proceeded on that basis, it is too late for him now to change his front and contended that the material date is 20-12-1951.15. It remains to consider the contention that Sri Padam Dev had procured the assistance of Government servant, and had thereby brought himself within the mischief of S. 123(8). The main objection before the Tribunal under this heading related to the subscribing of the nomination paper by Daulataram as proposer and Motiram as seconder. This question has since been decided adversely to the appellant in a recent decision of this Court reported in - Raj Krushna Bose v. Binod Kanungo, AIR 1954 SC 202 (B), where it was held that S. 33(2) conferred the privilege of proposing or seconding a candidate on any person who was registered in the electoral roll, and that S. 123(8) could not be construed as taking away that privilage. This objection must, therefore, be overruled.16. Then there is the question whether the appointment of Sital Singh as polling agent contravened S. 123(8). The majority of the Tribunal was of the opinion that the appointment of a Government servant as polling agent was not by itself objectionable, but the third member thought otherwise. They, however, agreed in deciding the point against the appellant on the ground that it had not been expressly raised in the petition. It was argued for the appellant that as it was admitted at the trial that Sital Singh was appointed polling agent, the point was open to him as it was a pure question of law. As the facts are admitted, and the question itself has been considered by the Tribunal, and as the point is one of considerable practical importance, we have heard arguments on it.17. Section 46 of Act No. 43 of 1951 empowers a candidate to "appoint in the prescribed manner such number of agents and relief agents as may be prescribed to act as polling agents of such candidate at each polling station". Rule 12 of the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1951 prescribed the formalities to be observed in the appointment of such agents, and Form 6 framed thereunder provides for the polling agent signing a declaration that he would do nothing forbidden by S. 128.That section enjoins that every agent shall maintain and aid in maintaining the secrecy of the voting. Thus, there is nothing in the Act or in the Rules barring the appointment of a Government servant as a polling agent. And on the reasoning adopted in - AIR 1954 SC 202 (B) with reference to S. 33(2),the conclusion must follow that such appointment does not per se contravene S. 123(8) Nor is there anything in the nature of the duties of a polling agent, which necessarily brings him within the prohibition enacted in that section. The duty of a polling agent is merely to identify the voter, and that could not by itself and without more, be said to further the election prospects of the candidate. So long as the polling agent confines himself to his work as such agent of merely identifying the voters, it cannot be said that S. 123(8) has, in any manner, been infringed.18. It is argued for the appellant that leaving aside the world of theories and entering into the realm of practical politics, the appointment of a Government servant as polling agent by one of the candidates must result in the dice being loaded heavily against the other candidate, and that situations might be conceived in which the presence of a Government servant of rank and importance as polling agent of one of the candidates might prove to be a source of unfair election practices. But if that is established, and if it is made out that the candidate or his agent had abused the right to appoint a Government servant as polling agent by exploiting the situation for furthering his election prospects, then the matter can be dealt with as an infringement of S. 123 (8). But the question which we have got to decide is whether as an abstract proposition of law the mere appointment of a Government servant as a polling agent is in itself and without more, an infringement of S. 123 (8). Our answer is in the negative. In the present case, the finding is that beyond acting as polling agent Sital Singh did nothing. Nor is there any finding that the respondent in any manner availed himself of his presence at the polling booth to further his own election prospects. Thus there are no grounds for holding that S. 123 (8) had been contravened. | 0[ds]10. The appellant did not dispute the correctness of this position. He contended that, as a matter of law, the contracts, of Sri Padam Dev were with the Central Government, and that, therefore, he would be disqualified under the terms of S. 7(d) read with S.9. The basis for this contention is Art. 239 of the Constitution, which enacts that the States specified in Part C shall be administered by the President through a Chief Commissioner ofto be appointed by him. Reference was also made to Art. 77, which provides that all executive action of the Government of India shall be expressed to be taken in the name of the President.The argument is that the executive action of the Central Government is vested in the President, that the President is also the executive head of Part C States, and that, therefore, the contracts entered into with Part C States, are, in law, contracts entered into with the Central Government.The fallacy of this reasoning is obvious. the President who is the executive head of the Part C States is not functioning as the executive head of the Central Government, but as the head of the State under powers specifically vested in him under Art.239. The authority conferred under Art. 239 to administer Part C States has not the effect of converting those States into the Central Government. Under Art. 239, the President occupies in regard to Part C States, a position analogous to that of a Governor in Part A States and of a Rajpramukh in Part B States. Though the Part C States are certainly administered under the provisions of Art. 239, they do not cease to be States and become merged with the Central Government.11. Article 240 and 241 provide for Parliament enacting laws for establishing legislative, executive and judicial authorities for those States, and Act No. 49 of 1951 was itself enacted under the power conferred under Art.240. Section 38(2) of that Act provides that all executive action of the State shall be expressed to be taken in the name of the Chief Commissioner. It will be seen that while the executive action of the Central Government is to be taken under Art. 77 in the name of the President, that of Part C States is to be taken under S. 38 (2), in the name of the Chief Commissioner.12.Thus, there is no basis for the contention that contracts with Part C States are to be construed as contracts with the Central Government. Nor has the appellant established as a fact that there were any contracts between Sri Padam Dev and the Central Government. The records only show that the dealings were with the Chief Commissioner, who was in charge of the administration of the State of Himachal Pradesh.The contention of the appellant that the contracts of Sri Padam Dev were with the Central Government cannot be supported either in law or on facts. It may seem anomalous that while under Ss. 7(d) and 9(1) of Act No. 43 of 1951 a contract with the State would operate as a disqualification for being chosen to the State Legislature and a contract with the Central Government would operate as a disqualification for being chosen to either House of Parliament, the respondent should be held to be not disqualified for election to the State Legislature when he holds a contract with the State Government. But that is because S. 7 (d) was not in terms extended to elections in Part C States, and came in only with the qualifications mentioned in S.answer is in the negative. In the present case, the finding is that beyond acting as polling agent Sital Singh did nothing. Nor is there any finding that the respondent in any manner availed himself of his presence at the polling booth to further his own election prospects. Thus there are no grounds for holding that S. 123 (8) had been contravened. | 0 | 4,508 | 732 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
1-12-1951. The appellant relied on certain letters and a telegram which were sent on behalf on the respondent on 3-10-1951, 27-11-1951 and 30-11-1951 as amounting to an acceptance of the contract. But no such point was taken before the Tribunal where it was admitted that the material date was 12-10-1951. As the question is one of fact, the appellant cannot be permitted at this stage to start a new and inconsistent case, and contend that there was an acceptance of the contract in October or November 1951.It was further argued that even on the footing that there was acceptance of the contract when the goods were despatched on 1-12-1951, that was sufficient to disqualify the respondent, as the terminus ad quo of the period during which the disqualification was operative was not the date of declaration which was 30-11-1951 but the date of the publication thereof in the Gazette, which was 20-11-1951. It may be conceded in favour of the appellant that the observation of this Court in - Chatturbhuj Vithaldas v. Moreshwar Parashram (A) that the material period starts with the nomination and ends with the announcement was not a decision on the point, as it proceeded on an agreed statement of counsel on both sides. But as the appellant contended before the Tribunal that the material date was the date of nomination and the entire trial proceeded on that basis, it is too late for him now to change his front and contended that the material date is 20-12-1951.15. It remains to consider the contention that Sri Padam Dev had procured the assistance of Government servant, and had thereby brought himself within the mischief of S. 123(8). The main objection before the Tribunal under this heading related to the subscribing of the nomination paper by Daulataram as proposer and Motiram as seconder. This question has since been decided adversely to the appellant in a recent decision of this Court reported in - Raj Krushna Bose v. Binod Kanungo, AIR 1954 SC 202 (B), where it was held that S. 33(2) conferred the privilege of proposing or seconding a candidate on any person who was registered in the electoral roll, and that S. 123(8) could not be construed as taking away that privilage. This objection must, therefore, be overruled.16. Then there is the question whether the appointment of Sital Singh as polling agent contravened S. 123(8). The majority of the Tribunal was of the opinion that the appointment of a Government servant as polling agent was not by itself objectionable, but the third member thought otherwise. They, however, agreed in deciding the point against the appellant on the ground that it had not been expressly raised in the petition. It was argued for the appellant that as it was admitted at the trial that Sital Singh was appointed polling agent, the point was open to him as it was a pure question of law. As the facts are admitted, and the question itself has been considered by the Tribunal, and as the point is one of considerable practical importance, we have heard arguments on it.17. Section 46 of Act No. 43 of 1951 empowers a candidate to "appoint in the prescribed manner such number of agents and relief agents as may be prescribed to act as polling agents of such candidate at each polling station". Rule 12 of the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1951 prescribed the formalities to be observed in the appointment of such agents, and Form 6 framed thereunder provides for the polling agent signing a declaration that he would do nothing forbidden by S. 128.That section enjoins that every agent shall maintain and aid in maintaining the secrecy of the voting. Thus, there is nothing in the Act or in the Rules barring the appointment of a Government servant as a polling agent. And on the reasoning adopted in - AIR 1954 SC 202 (B) with reference to S. 33(2),the conclusion must follow that such appointment does not per se contravene S. 123(8) Nor is there anything in the nature of the duties of a polling agent, which necessarily brings him within the prohibition enacted in that section. The duty of a polling agent is merely to identify the voter, and that could not by itself and without more, be said to further the election prospects of the candidate. So long as the polling agent confines himself to his work as such agent of merely identifying the voters, it cannot be said that S. 123(8) has, in any manner, been infringed.18. It is argued for the appellant that leaving aside the world of theories and entering into the realm of practical politics, the appointment of a Government servant as polling agent by one of the candidates must result in the dice being loaded heavily against the other candidate, and that situations might be conceived in which the presence of a Government servant of rank and importance as polling agent of one of the candidates might prove to be a source of unfair election practices. But if that is established, and if it is made out that the candidate or his agent had abused the right to appoint a Government servant as polling agent by exploiting the situation for furthering his election prospects, then the matter can be dealt with as an infringement of S. 123 (8). But the question which we have got to decide is whether as an abstract proposition of law the mere appointment of a Government servant as a polling agent is in itself and without more, an infringement of S. 123 (8). Our answer is in the negative. In the present case, the finding is that beyond acting as polling agent Sital Singh did nothing. Nor is there any finding that the respondent in any manner availed himself of his presence at the polling booth to further his own election prospects. Thus there are no grounds for holding that S. 123 (8) had been contravened.
### Response:
0
### Explanation:
10. The appellant did not dispute the correctness of this position. He contended that, as a matter of law, the contracts, of Sri Padam Dev were with the Central Government, and that, therefore, he would be disqualified under the terms of S. 7(d) read with S.9. The basis for this contention is Art. 239 of the Constitution, which enacts that the States specified in Part C shall be administered by the President through a Chief Commissioner ofto be appointed by him. Reference was also made to Art. 77, which provides that all executive action of the Government of India shall be expressed to be taken in the name of the President.The argument is that the executive action of the Central Government is vested in the President, that the President is also the executive head of Part C States, and that, therefore, the contracts entered into with Part C States, are, in law, contracts entered into with the Central Government.The fallacy of this reasoning is obvious. the President who is the executive head of the Part C States is not functioning as the executive head of the Central Government, but as the head of the State under powers specifically vested in him under Art.239. The authority conferred under Art. 239 to administer Part C States has not the effect of converting those States into the Central Government. Under Art. 239, the President occupies in regard to Part C States, a position analogous to that of a Governor in Part A States and of a Rajpramukh in Part B States. Though the Part C States are certainly administered under the provisions of Art. 239, they do not cease to be States and become merged with the Central Government.11. Article 240 and 241 provide for Parliament enacting laws for establishing legislative, executive and judicial authorities for those States, and Act No. 49 of 1951 was itself enacted under the power conferred under Art.240. Section 38(2) of that Act provides that all executive action of the State shall be expressed to be taken in the name of the Chief Commissioner. It will be seen that while the executive action of the Central Government is to be taken under Art. 77 in the name of the President, that of Part C States is to be taken under S. 38 (2), in the name of the Chief Commissioner.12.Thus, there is no basis for the contention that contracts with Part C States are to be construed as contracts with the Central Government. Nor has the appellant established as a fact that there were any contracts between Sri Padam Dev and the Central Government. The records only show that the dealings were with the Chief Commissioner, who was in charge of the administration of the State of Himachal Pradesh.The contention of the appellant that the contracts of Sri Padam Dev were with the Central Government cannot be supported either in law or on facts. It may seem anomalous that while under Ss. 7(d) and 9(1) of Act No. 43 of 1951 a contract with the State would operate as a disqualification for being chosen to the State Legislature and a contract with the Central Government would operate as a disqualification for being chosen to either House of Parliament, the respondent should be held to be not disqualified for election to the State Legislature when he holds a contract with the State Government. But that is because S. 7 (d) was not in terms extended to elections in Part C States, and came in only with the qualifications mentioned in S.answer is in the negative. In the present case, the finding is that beyond acting as polling agent Sital Singh did nothing. Nor is there any finding that the respondent in any manner availed himself of his presence at the polling booth to further his own election prospects. Thus there are no grounds for holding that S. 123 (8) had been contravened.
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M/s. Banshi Dhar Lachhman Prasad & Another Vs. Union of India & Others | contention of the learned counsel. It must be remembered that the demand notice - Exhibit A - gives full particulars regarding the substitution and shortage of tobacco. The Collector had issued the notice - Exhibit I - giving full particulars of these matters and the appellants had also sent a fairly exhaustive reply to the same. Finally the order - Exhibit Q - itself is very exhaustive and sets out meticulously, in great detail, the quantity of tobacco under the head of substitution and shortage. The order refers in extenso to the various points raised in the appellants reply dated February 2, 1957 as well as the further points pressed before the Collector on the date of hearing viz., June 3, 1957 by the appellants counsel, and it is after such a fairly exhaustive consideration of the objections of the appellants, the demand notice Exhibit A and the materials on record, that the Collector passed the order Exhibit Q. In fact, as already mentioned, it is not as if the Collector merely confirmed the demand under Exhibit A in toto. On the other hand, he modified it in favour of the appellant to some extent. It is such an exhaustive order passed by the Collector - Exhibit Q - that was the subject of consideration in the first instance, by the Central Board of Revenue, in Exhibit T, and later, by the Central Government in Exhibit V. Under those circumstances, we are not inclined to accept the contention of the learned counsel for the appellant that the orders - Exhibits T and V - require to be interfered with.16. The further grievance placed before us by the learned Counsel on behalf of the appellant is that before the High Court various objections had been raised in the writ petition regarding the manner in which the inspection was done by the Deputy Superintendent and none of these matters had been considered by the High Court. To a direct question put by us, as to whether all the points referred to in para 33 of the writ petition were really argued before the High Court, the counsel quite fairly stated that he has no instructions to say that these points were as a matter of fact pressed before the High Court.17. The counsel further urged that no opportunity had been given to cross-examine the Deputy Superintendent of Central Excise nor was a copy of his report made available to the appellants. The inspection was done without the knowledge of the appellants and without notice to them and Khuda Bux was not authorised to represent them at the time the inspection was conducted by the Deputy Superintendent. We are not inclined to accept these contentions of the learned counsel. So far as we could see, the appellant had made no grievance before the Collector of Central Excise that they should be allowed to examine witnesses nor did they urge that a copy of the report of the Deputy Superintendent had not been made available to them. They did not make any request for cross-examining the Deputy Superintendent of Central Excise. In view of all these circumstances, in our opinion the High Court was justified in holding that the appellants had a proper opportunity of contesting the demand made by the department and that there had been no failure of natural justice in the proceedings conducted by the respondents.18. A further grievance was made by the learned counsel for the appellants that the order - Exhibit N - dated February 6, 1958, passed by the Collector of Central Excise, was illegal and contrary to the proviso to sub-section (1) of Section 35 of the Act. According to the learned Counsel, the Assistant Collector, by his order Exhibit M, had condoned the losses by a certain percentage in respect of five lots whereas the order of remand for a de novo adjudication passed by the Collector under Exhibit N will have the result of depriving the appellants of the favourable directions obtained by them under Exhibit N and their liability would be enhanced. That is, according to the appellants, the order of remand, Exhibit N, passed by the Collector, will have the effect of subjecting them to a greater penalty than has been adjudged under the original order of the Assistant Collector, Exhibit M. We are not inclined to accept this contention of the appellant. Section 35 deals with appeals and sub-section (1) gives a right of appeal to an aggrieved party against any decision or order passed by officers under the Act and the Rules giving power to the appellate authority that such authority or officer may thereupon make such further inquiry and pass such order as he thinks fit, confirming, altering or annulling the decision or order appealed against, provided that no such order in appeal shall have the effect of subjecting any person to any greater confiscation or penalty than has been adjudged against him in the original decision or order. The fallacy underlying the contention of the learned counsel is the assumption that the consequence of the order of the Collector will be to subject the appellants to a greater penalty for which, in our opinion, there is no basis, as is seen from Section 35.What the Collector has done in this case is to give the appellants an opportunity of satisfying if they can, the authority concerned that there was no justification for the issue of the two notices, Exhibits K and L under R. 223-A. The order does nothing more than this. If the appellants are able to satisfy, the authority properly, the result may even be that no action will be taken under Rule 223-A.19. Lastly, it was feebly urged that there was a conflict between the orders of the Collector, Exhibit Q dated March 3, 1958 and Exhibit N, dated February 6, 1958. In our opinion, there is no scope for any conflict because the two orders relate to different types of proceedings initiated against the appellants. | 0[ds]14. We have very exhaustively referred to the various proceedings initiated against the appellants as well as the nature of the orders passed and as they will clearly show, in our opinion that the appellants grievancewhich will be presently dealt withe are not impressed with this contention of the learned counsel. It must be remembered that the demand noticees full particulars regarding the substitution and shortage of tobacco. The Collector had issued the noticeng full particulars of these matters and the appellants had also sent a fairly exhaustive reply to the same. Finally the orderlf is very exhaustive and sets out meticulously, in great detail, the quantity of tobacco under the head of substitution and shortage. The order refers in extenso to the various points raised in the appellants reply dated February 2, 1957 as well as the further points pressed before the Collector on the date of hearing viz., June 3, 1957 by the appellants counsel, and it is after such a fairly exhaustive consideration of the objections of the appellants, the demand notice Exhibit A and the materials on record, that the Collector passed the order Exhibit Q. In fact, as already mentioned, it is not as if the Collector merely confirmed the demand under Exhibit A in toto. On the other hand, he modified it in favour of the appellant to some extent. It is such an exhaustive order passed by the Collectorat was the subject of consideration in the first instance, by the Central Board of Revenue, in Exhibit T, and later, by the Central Government in Exhibit V. Under those circumstances, we are not inclined to accept the contention of the learned counsel for the appellant that the ordersExhibits T and Vrequire to be interferedare not inclined to accept these contentions of the learned counsel. So far as we could see, the appellant had made no grievance before the Collector of Central Excise that they should be allowed to examine witnesses nor did they urge that a copy of the report of the Deputy Superintendent had not been made available to them. They did not make any request forthe Deputy Superintendent of Central Excise. In view of all these circumstances, in our opinion the High Court was justified in holding that the appellants had a proper opportunity of contesting the demand made by the department and that there had been no failure of natural justice in the proceedings conducted by the respondents.We are not inclined to accept this contention of the appellant. Section 35 deals with appeals and(1) gives a right of appeal to an aggrieved party against any decision or order passed by officers under the Act and the Rules giving power to the appellate authority that such authority or officer may thereupon make such further inquiry and pass such order as he thinks fit, confirming, altering or annulling the decision or order appealed against, provided that no such order in appeal shall have the effect of subjecting any person to any greater confiscation or penalty than has been adjudged against him in the original decision or order. The fallacy underlying the contention of the learned counsel is the assumption that the consequence of the order of the Collector will be to subject the appellants to a greater penalty for which, in our opinion, there is no basis, as is seen from Section 35.What the Collector has done in this case is to give the appellants an opportunity of satisfying if they can, the authority concerned that there was no justification for the issue of the two notices, Exhibits K and L under R.The order does nothing more than this. If the appellants are able to satisfy, the authority properly, the result may even be that no action will be taken under RuleIn our opinion, there is no scope for any conflict because the two orders relate to different types of proceedings initiated against the appellants. | 0 | 3,047 | 704 | ### Instruction:
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contention of the learned counsel. It must be remembered that the demand notice - Exhibit A - gives full particulars regarding the substitution and shortage of tobacco. The Collector had issued the notice - Exhibit I - giving full particulars of these matters and the appellants had also sent a fairly exhaustive reply to the same. Finally the order - Exhibit Q - itself is very exhaustive and sets out meticulously, in great detail, the quantity of tobacco under the head of substitution and shortage. The order refers in extenso to the various points raised in the appellants reply dated February 2, 1957 as well as the further points pressed before the Collector on the date of hearing viz., June 3, 1957 by the appellants counsel, and it is after such a fairly exhaustive consideration of the objections of the appellants, the demand notice Exhibit A and the materials on record, that the Collector passed the order Exhibit Q. In fact, as already mentioned, it is not as if the Collector merely confirmed the demand under Exhibit A in toto. On the other hand, he modified it in favour of the appellant to some extent. It is such an exhaustive order passed by the Collector - Exhibit Q - that was the subject of consideration in the first instance, by the Central Board of Revenue, in Exhibit T, and later, by the Central Government in Exhibit V. Under those circumstances, we are not inclined to accept the contention of the learned counsel for the appellant that the orders - Exhibits T and V - require to be interfered with.16. The further grievance placed before us by the learned Counsel on behalf of the appellant is that before the High Court various objections had been raised in the writ petition regarding the manner in which the inspection was done by the Deputy Superintendent and none of these matters had been considered by the High Court. To a direct question put by us, as to whether all the points referred to in para 33 of the writ petition were really argued before the High Court, the counsel quite fairly stated that he has no instructions to say that these points were as a matter of fact pressed before the High Court.17. The counsel further urged that no opportunity had been given to cross-examine the Deputy Superintendent of Central Excise nor was a copy of his report made available to the appellants. The inspection was done without the knowledge of the appellants and without notice to them and Khuda Bux was not authorised to represent them at the time the inspection was conducted by the Deputy Superintendent. We are not inclined to accept these contentions of the learned counsel. So far as we could see, the appellant had made no grievance before the Collector of Central Excise that they should be allowed to examine witnesses nor did they urge that a copy of the report of the Deputy Superintendent had not been made available to them. They did not make any request for cross-examining the Deputy Superintendent of Central Excise. In view of all these circumstances, in our opinion the High Court was justified in holding that the appellants had a proper opportunity of contesting the demand made by the department and that there had been no failure of natural justice in the proceedings conducted by the respondents.18. A further grievance was made by the learned counsel for the appellants that the order - Exhibit N - dated February 6, 1958, passed by the Collector of Central Excise, was illegal and contrary to the proviso to sub-section (1) of Section 35 of the Act. According to the learned Counsel, the Assistant Collector, by his order Exhibit M, had condoned the losses by a certain percentage in respect of five lots whereas the order of remand for a de novo adjudication passed by the Collector under Exhibit N will have the result of depriving the appellants of the favourable directions obtained by them under Exhibit N and their liability would be enhanced. That is, according to the appellants, the order of remand, Exhibit N, passed by the Collector, will have the effect of subjecting them to a greater penalty than has been adjudged under the original order of the Assistant Collector, Exhibit M. We are not inclined to accept this contention of the appellant. Section 35 deals with appeals and sub-section (1) gives a right of appeal to an aggrieved party against any decision or order passed by officers under the Act and the Rules giving power to the appellate authority that such authority or officer may thereupon make such further inquiry and pass such order as he thinks fit, confirming, altering or annulling the decision or order appealed against, provided that no such order in appeal shall have the effect of subjecting any person to any greater confiscation or penalty than has been adjudged against him in the original decision or order. The fallacy underlying the contention of the learned counsel is the assumption that the consequence of the order of the Collector will be to subject the appellants to a greater penalty for which, in our opinion, there is no basis, as is seen from Section 35.What the Collector has done in this case is to give the appellants an opportunity of satisfying if they can, the authority concerned that there was no justification for the issue of the two notices, Exhibits K and L under R. 223-A. The order does nothing more than this. If the appellants are able to satisfy, the authority properly, the result may even be that no action will be taken under Rule 223-A.19. Lastly, it was feebly urged that there was a conflict between the orders of the Collector, Exhibit Q dated March 3, 1958 and Exhibit N, dated February 6, 1958. In our opinion, there is no scope for any conflict because the two orders relate to different types of proceedings initiated against the appellants.
### Response:
0
### Explanation:
14. We have very exhaustively referred to the various proceedings initiated against the appellants as well as the nature of the orders passed and as they will clearly show, in our opinion that the appellants grievancewhich will be presently dealt withe are not impressed with this contention of the learned counsel. It must be remembered that the demand noticees full particulars regarding the substitution and shortage of tobacco. The Collector had issued the noticeng full particulars of these matters and the appellants had also sent a fairly exhaustive reply to the same. Finally the orderlf is very exhaustive and sets out meticulously, in great detail, the quantity of tobacco under the head of substitution and shortage. The order refers in extenso to the various points raised in the appellants reply dated February 2, 1957 as well as the further points pressed before the Collector on the date of hearing viz., June 3, 1957 by the appellants counsel, and it is after such a fairly exhaustive consideration of the objections of the appellants, the demand notice Exhibit A and the materials on record, that the Collector passed the order Exhibit Q. In fact, as already mentioned, it is not as if the Collector merely confirmed the demand under Exhibit A in toto. On the other hand, he modified it in favour of the appellant to some extent. It is such an exhaustive order passed by the Collectorat was the subject of consideration in the first instance, by the Central Board of Revenue, in Exhibit T, and later, by the Central Government in Exhibit V. Under those circumstances, we are not inclined to accept the contention of the learned counsel for the appellant that the ordersExhibits T and Vrequire to be interferedare not inclined to accept these contentions of the learned counsel. So far as we could see, the appellant had made no grievance before the Collector of Central Excise that they should be allowed to examine witnesses nor did they urge that a copy of the report of the Deputy Superintendent had not been made available to them. They did not make any request forthe Deputy Superintendent of Central Excise. In view of all these circumstances, in our opinion the High Court was justified in holding that the appellants had a proper opportunity of contesting the demand made by the department and that there had been no failure of natural justice in the proceedings conducted by the respondents.We are not inclined to accept this contention of the appellant. Section 35 deals with appeals and(1) gives a right of appeal to an aggrieved party against any decision or order passed by officers under the Act and the Rules giving power to the appellate authority that such authority or officer may thereupon make such further inquiry and pass such order as he thinks fit, confirming, altering or annulling the decision or order appealed against, provided that no such order in appeal shall have the effect of subjecting any person to any greater confiscation or penalty than has been adjudged against him in the original decision or order. The fallacy underlying the contention of the learned counsel is the assumption that the consequence of the order of the Collector will be to subject the appellants to a greater penalty for which, in our opinion, there is no basis, as is seen from Section 35.What the Collector has done in this case is to give the appellants an opportunity of satisfying if they can, the authority concerned that there was no justification for the issue of the two notices, Exhibits K and L under R.The order does nothing more than this. If the appellants are able to satisfy, the authority properly, the result may even be that no action will be taken under RuleIn our opinion, there is no scope for any conflict because the two orders relate to different types of proceedings initiated against the appellants.
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State Of Orissa Vs. Divnl. Manager, L.I.C. | 1. This appeal is treated as special leave petition under Article 136 of the Constitution. 2. Leave granted. 3. We have heard the learned counsel on both sides. 4. This appeal arises from the order dated 17-2-1995 in FA No. 510 of 1992 of the National Consumer and Redressal Commission, New Delhi. The respondent Haribandhu Setha filed a claim before the State Commission, Orissa under the Consumer Protection Act, 1986 (for short, the Act) for damages. The State Commission awarded damages against the first respondent-LIC. In appeal, the appellant was impleaded as party-respondent and the National Forum awarded damages against the State in a sum of Rs 1, 00, 000 (Rupees one lakh only) and directed to pay compensation within a period of three months. Thus, this appeal by special leave 5. The only question is : whether the appellant is liable to pay compensation to Haribandhu Setha under the Act and whether the claim is maintainable. Section 2(1)(o) of the Act defines services as under "services means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying a news or other information, but does not include the rendering of any service free of charge or under a contract of personal service." * 6. A reading of the definition would indicate that the services contemplated thereunder alone are the services within the meaning of the Act except excluded services mentioned thereunder. The excluded services are "service free of charge or under a contract of personal service". The concept of contract of personal service was considered in a recent judgment of this Court in Indian Medical Assn. v. V.P. Shantha. This Court had held therein that the expression "personal service" has a well-known legal connotation and has been construed in the context of the right to seek enforcement of such a contract under the Specific Relief Act, 1963. For that purpose, a contract of personal service has been held to cover a civil servant, the managing agents of a company and a professor in the University. There can be a contract of personal service if there is relationship of master and servant between a doctor and the availing of his services and in that event the services rendered by the doctor to his employer would be excluded from the purview of the expression under Section 2(1)(o) of the Act by virtue of the exclusionary clause in the said definition. The other excluded service is service rendered free of charge. 7. It is not in dispute that the respondent was a government servant and, therefore, he is bound by the service conditions and the State was rendering services free of charge to the contesting respondent. Under those circumstances, the government servant has been excluded from the purview of the Act to claim any damages against the State under the Act. Therefore, if any claim arises for the contesting respondent, it would be open to him to claim, in any other forum, but not under the Act. If the claim is barred by limitation, time taken during the entire proceedings shall stand excluded | 1[ds]6. A reading of the definition would indicate that the services contemplated thereunder alone are the services within the meaning of the Act except excluded services mentioned thereunder. The excluded services are "service free of charge or under a contract of personal service".It is not in dispute that the respondent was a government servant and, therefore, he is bound by the service conditions and the State was rendering services free of charge to the contesting respondent. Under those circumstances, the government servant has been excluded from the purview of the Act to claim any damages against the State under the Act. Therefore, if any claim arises for the contesting respondent, it would be open to him to claim, in any other forum, but not under the Act. If the claim is barred by limitation, time taken during the entire proceedings shall stand excluded | 1 | 623 | 163 | ### Instruction:
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1. This appeal is treated as special leave petition under Article 136 of the Constitution. 2. Leave granted. 3. We have heard the learned counsel on both sides. 4. This appeal arises from the order dated 17-2-1995 in FA No. 510 of 1992 of the National Consumer and Redressal Commission, New Delhi. The respondent Haribandhu Setha filed a claim before the State Commission, Orissa under the Consumer Protection Act, 1986 (for short, the Act) for damages. The State Commission awarded damages against the first respondent-LIC. In appeal, the appellant was impleaded as party-respondent and the National Forum awarded damages against the State in a sum of Rs 1, 00, 000 (Rupees one lakh only) and directed to pay compensation within a period of three months. Thus, this appeal by special leave 5. The only question is : whether the appellant is liable to pay compensation to Haribandhu Setha under the Act and whether the claim is maintainable. Section 2(1)(o) of the Act defines services as under "services means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying a news or other information, but does not include the rendering of any service free of charge or under a contract of personal service." * 6. A reading of the definition would indicate that the services contemplated thereunder alone are the services within the meaning of the Act except excluded services mentioned thereunder. The excluded services are "service free of charge or under a contract of personal service". The concept of contract of personal service was considered in a recent judgment of this Court in Indian Medical Assn. v. V.P. Shantha. This Court had held therein that the expression "personal service" has a well-known legal connotation and has been construed in the context of the right to seek enforcement of such a contract under the Specific Relief Act, 1963. For that purpose, a contract of personal service has been held to cover a civil servant, the managing agents of a company and a professor in the University. There can be a contract of personal service if there is relationship of master and servant between a doctor and the availing of his services and in that event the services rendered by the doctor to his employer would be excluded from the purview of the expression under Section 2(1)(o) of the Act by virtue of the exclusionary clause in the said definition. The other excluded service is service rendered free of charge. 7. It is not in dispute that the respondent was a government servant and, therefore, he is bound by the service conditions and the State was rendering services free of charge to the contesting respondent. Under those circumstances, the government servant has been excluded from the purview of the Act to claim any damages against the State under the Act. Therefore, if any claim arises for the contesting respondent, it would be open to him to claim, in any other forum, but not under the Act. If the claim is barred by limitation, time taken during the entire proceedings shall stand excluded
### Response:
1
### Explanation:
6. A reading of the definition would indicate that the services contemplated thereunder alone are the services within the meaning of the Act except excluded services mentioned thereunder. The excluded services are "service free of charge or under a contract of personal service".It is not in dispute that the respondent was a government servant and, therefore, he is bound by the service conditions and the State was rendering services free of charge to the contesting respondent. Under those circumstances, the government servant has been excluded from the purview of the Act to claim any damages against the State under the Act. Therefore, if any claim arises for the contesting respondent, it would be open to him to claim, in any other forum, but not under the Act. If the claim is barred by limitation, time taken during the entire proceedings shall stand excluded
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Sanjay Kumar Singh Vs. The State of Jharkhand | an appeal before the High Court being First Appeal No. 44/2007. Before the High Court, the appellant herein filed an application for additional evidence under Order 41 Rule 27 of the Code of Civil Procedure (for short, CPC) and proposed to bring on record certain sale deeds and the certified copy of the judgment and award dated 23.08.2006 and 21.09.2006 passed in Land Acquisition Case Nos. 12/1989; 27/1989; 32/1989 and 52/1989, which, according to the appellant, were relevant for the purpose of determining the fair market value. The said application under Order 41 Rule 27 CPC being IA No. 1384/2019 has been dismissed by the High Court while deciding the appeal, by the impugned judgment and order after rejecting IA No. 1384/2019, thus by the impugned judgment and order, the High Court has dismissed the First Appeal. 2.2 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court dismissing the First Appeal as well as rejecting IA No. 1384/2019, the appellant herein – original claimant has preferred the present appeal. 3. We have heard the learned counsel for the respective parties at length. 3.1 At the outset, it is required to be noted that before the Reference Court as well as before the High Court, the only evidence produced on record was the sale deed dated 29.12.1987 which was rejected from being considered. Hence, as such, there was no other evidence/material on record to arrive at a fair market value for the acquired land. Therefore, before the High Court, the appellant filed an application under Order 41 Rule 27 CPC for additional evidence to bring on record the sale deeds and certified copy of the judgment and award passed by the Reference Court which, according to the appellant, would have a direct bearing on the determination of the fair market value of the acquired land. The High Court has rejected the said application by observing that the application does not satisfy the requirement of Order 41 Rule 27 read with Section 96 of the CPC. The High Court has also observed that the appellant has failed to establish that notwithstanding exercise of due diligence, such additional evidence was not within his knowledge and could not after exercise of due diligence be produced before the courts below. However, the High Court while considering the application for additional evidence has not appreciated the fact that the documents which were sought to be produced as additional evidence might have a bearing on determination of the fair market value of the acquired land. It is to be noted that except the sale deed dated 29.12.1987, which was rejected by the courts below, no further evidence was on record to determine the fair market value of the acquired land. It was a case of awarding of fair compensation to the land owner whose land has been acquired for public purpose. It cannot be disputed that the claimant whose land is acquired is entitled to the fair market value of his land. 4. It is true that the general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. It may also be true that the appellate court may permit additional evidence if the conditions laid down in this Rule are found to exist and the parties are not entitled, as of right, to the admission of such evidence. However, at the same time, where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed. Even, one of the circumstances in which the production of additional evidence under Order 41 Rule 27 CPC by the appellate court is to be considered is, whether or not the appellate court requires the additional evidence so as to enable it to pronouncement judgment or for any other substantial cause of like nature. As observed and held by this Court in the case of A. Andisamy Chettiar v. A. Subburaj Chettiar, reported in (2015) 17 SCC 713, the admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. It is further observed that the true test, therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. 5. Applying the law laid down by this Court in the aforesaid decision to the facts of the case on hand, we are of the opinion that while considering the application for additional evidence, the High Court has not at all adverted to the aforesaid relevant consideration, i.e., whether the additional evidence sought to be adduced would have a direct bearing on pronouncing the judgment or for any other substantial cause. As observed hereinabove, except sale deed 29.12.1987, which as such was rejected, there was no other material available on record to arrive at a fair market value of the acquired land. Therefore, in the facts and circumstances of the case, the High Court ought to have allowed the application for additional evidence. However, at the same time, even after permitting to adduce the additional evidence, the applicant has to prove the existence, authenticity and genuineness of the documents including contents thereof, in accordance with law and for the aforesaid purpose, the matter is to be remanded to the Reference Court. | 1[ds]It is to be noted that except the sale deed dated 29.12.1987, which was rejected by the courts below, no further evidence was on record to determine the fair market value of the acquired land. It was a case of awarding of fair compensation to the land owner whose land has been acquired for public purpose. It cannot be disputed that the claimant whose land is acquired is entitled to the fair market value of his land.4. It is true that the general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. It may also be true that the appellate court may permit additional evidence if the conditions laid down in this Rule are found to exist and the parties are not entitled, as of right, to the admission of such evidence. However, at the same time, where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed. Even, one of the circumstances in which the production of additional evidence under Order 41 Rule 27 CPC by the appellate court is to be considered is, whether or not the appellate court requires the additional evidence so as to enable it to pronouncement judgment or for any other substantial cause of like nature. As observed and held by this Court in the case of A. Andisamy Chettiar v. A. Subburaj Chettiar, reported in (2015) 17 SCC 713, the admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. It is further observed that the true test, therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced.5. Applying the law laid down by this Court in the aforesaid decision to the facts of the case on hand, we are of the opinion that while considering the application for additional evidence, the High Court has not at all adverted to the aforesaid relevant consideration, i.e., whether the additional evidence sought to be adduced would have a direct bearing on pronouncing the judgment or for any other substantial cause. As observed hereinabove, except sale deed 29.12.1987, which as such was rejected, there was no other material available on record to arrive at a fair market value of the acquired land. Therefore, in the facts and circumstances of the case, the High Court ought to have allowed the application for additional evidence. However, at the same time, even after permitting to adduce the additional evidence, the applicant has to prove the existence, authenticity and genuineness of the documents including contents thereof, in accordance with law and for the aforesaid purpose, the matter is to be remanded to the Reference Court. | 1 | 1,280 | 629 | ### Instruction:
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an appeal before the High Court being First Appeal No. 44/2007. Before the High Court, the appellant herein filed an application for additional evidence under Order 41 Rule 27 of the Code of Civil Procedure (for short, CPC) and proposed to bring on record certain sale deeds and the certified copy of the judgment and award dated 23.08.2006 and 21.09.2006 passed in Land Acquisition Case Nos. 12/1989; 27/1989; 32/1989 and 52/1989, which, according to the appellant, were relevant for the purpose of determining the fair market value. The said application under Order 41 Rule 27 CPC being IA No. 1384/2019 has been dismissed by the High Court while deciding the appeal, by the impugned judgment and order after rejecting IA No. 1384/2019, thus by the impugned judgment and order, the High Court has dismissed the First Appeal. 2.2 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court dismissing the First Appeal as well as rejecting IA No. 1384/2019, the appellant herein – original claimant has preferred the present appeal. 3. We have heard the learned counsel for the respective parties at length. 3.1 At the outset, it is required to be noted that before the Reference Court as well as before the High Court, the only evidence produced on record was the sale deed dated 29.12.1987 which was rejected from being considered. Hence, as such, there was no other evidence/material on record to arrive at a fair market value for the acquired land. Therefore, before the High Court, the appellant filed an application under Order 41 Rule 27 CPC for additional evidence to bring on record the sale deeds and certified copy of the judgment and award passed by the Reference Court which, according to the appellant, would have a direct bearing on the determination of the fair market value of the acquired land. The High Court has rejected the said application by observing that the application does not satisfy the requirement of Order 41 Rule 27 read with Section 96 of the CPC. The High Court has also observed that the appellant has failed to establish that notwithstanding exercise of due diligence, such additional evidence was not within his knowledge and could not after exercise of due diligence be produced before the courts below. However, the High Court while considering the application for additional evidence has not appreciated the fact that the documents which were sought to be produced as additional evidence might have a bearing on determination of the fair market value of the acquired land. It is to be noted that except the sale deed dated 29.12.1987, which was rejected by the courts below, no further evidence was on record to determine the fair market value of the acquired land. It was a case of awarding of fair compensation to the land owner whose land has been acquired for public purpose. It cannot be disputed that the claimant whose land is acquired is entitled to the fair market value of his land. 4. It is true that the general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. It may also be true that the appellate court may permit additional evidence if the conditions laid down in this Rule are found to exist and the parties are not entitled, as of right, to the admission of such evidence. However, at the same time, where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed. Even, one of the circumstances in which the production of additional evidence under Order 41 Rule 27 CPC by the appellate court is to be considered is, whether or not the appellate court requires the additional evidence so as to enable it to pronouncement judgment or for any other substantial cause of like nature. As observed and held by this Court in the case of A. Andisamy Chettiar v. A. Subburaj Chettiar, reported in (2015) 17 SCC 713, the admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. It is further observed that the true test, therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. 5. Applying the law laid down by this Court in the aforesaid decision to the facts of the case on hand, we are of the opinion that while considering the application for additional evidence, the High Court has not at all adverted to the aforesaid relevant consideration, i.e., whether the additional evidence sought to be adduced would have a direct bearing on pronouncing the judgment or for any other substantial cause. As observed hereinabove, except sale deed 29.12.1987, which as such was rejected, there was no other material available on record to arrive at a fair market value of the acquired land. Therefore, in the facts and circumstances of the case, the High Court ought to have allowed the application for additional evidence. However, at the same time, even after permitting to adduce the additional evidence, the applicant has to prove the existence, authenticity and genuineness of the documents including contents thereof, in accordance with law and for the aforesaid purpose, the matter is to be remanded to the Reference Court.
### Response:
1
### Explanation:
It is to be noted that except the sale deed dated 29.12.1987, which was rejected by the courts below, no further evidence was on record to determine the fair market value of the acquired land. It was a case of awarding of fair compensation to the land owner whose land has been acquired for public purpose. It cannot be disputed that the claimant whose land is acquired is entitled to the fair market value of his land.4. It is true that the general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. It may also be true that the appellate court may permit additional evidence if the conditions laid down in this Rule are found to exist and the parties are not entitled, as of right, to the admission of such evidence. However, at the same time, where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed. Even, one of the circumstances in which the production of additional evidence under Order 41 Rule 27 CPC by the appellate court is to be considered is, whether or not the appellate court requires the additional evidence so as to enable it to pronouncement judgment or for any other substantial cause of like nature. As observed and held by this Court in the case of A. Andisamy Chettiar v. A. Subburaj Chettiar, reported in (2015) 17 SCC 713, the admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. It is further observed that the true test, therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced.5. Applying the law laid down by this Court in the aforesaid decision to the facts of the case on hand, we are of the opinion that while considering the application for additional evidence, the High Court has not at all adverted to the aforesaid relevant consideration, i.e., whether the additional evidence sought to be adduced would have a direct bearing on pronouncing the judgment or for any other substantial cause. As observed hereinabove, except sale deed 29.12.1987, which as such was rejected, there was no other material available on record to arrive at a fair market value of the acquired land. Therefore, in the facts and circumstances of the case, the High Court ought to have allowed the application for additional evidence. However, at the same time, even after permitting to adduce the additional evidence, the applicant has to prove the existence, authenticity and genuineness of the documents including contents thereof, in accordance with law and for the aforesaid purpose, the matter is to be remanded to the Reference Court.
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Dev Kanta Barooah Vs. Kusharam Nath & Others | Number of proposer ...Assam Legislative Assembly Constituency, Part No. 10 of the Electoral Roll of village Phulaniati, Mouza Hatichung, Police Station Sadar, Nowgong, Roll No. 59/1956.3. Name of the candidates father ...Krishna Ram Nath.4. Full postal address of candidate ...Village Phulaniati, Post Office Chakalaghat, District Nowgong, Assam.5. Electoral Roll Number of candidate ...Assam Legislative Assembly Constituency, Part No. 10 of the Electoral roll of village Phulaniati, Mouza Hatichung, Police Station Sadar, Nowgong, Roll No. 275/1956.Date : 28-1-57Sd. Lahi Ram Nath.Signature of proposer.It is clear that this nomination paper specifies the serial number of the entry in the electoral roll as well as the serial number of the part of the electoral roll in which such entry occurs. Both these entries are to be found against cols. 2 and 5. It is, however, urged that the name of the constituency to which the electoral roll relates has not been mentioned either in col. 2 or col. 5. No doubt in both the entries reference is made to Nowgong but the constituency is Nowgong Assembly Constituency, and since the words "Assembly Constituency" do not follow the word Nowgong it cannot be said that the name of the constituency has been properly stated. That is the gist of the argument urged on behalf of the appellant. This argument has been rejected both by the Election Tribunal as well as by the High Court; and we see no reason to take a different view. It is significant that in both the columns the words "Assam Legislative Assembly Constituency" are entered, and then is mentioned Nowgong. Reading each of the two entries as a whole it would not be unreasonable to conclude that the two entries refer to Nowgong Assembly Constituency. The nomination paper begins with the statement that respondent 1 is nominated as a candidate for election from the Nowgong Assembly Constituency, and then in stating the electoral roll number of the proposer and the candidate respectively in cols. 2 and 5 the words "Assam Legislative Assembly Constituency" as well as Nowgong are used. Technically it would have been more accurate to have described the constituency as Nowgong Assembly Constituency, but, having regard to the manner in which both the columns have been filled, we do not think that the High Court was in error in coming to the conclusion that in substance the name of the constituency has been mentioned in the two columns. It is not disputed that the serial number of the entry and the serial number of the part of the electoral roll mentioned in the nomination paper referred to this constituency; and so it is not at all unreasonable to construe the relevant entries in the manner adopted by the Election Tribunal and the High Court. Therefore, having regard to the manner in which the nomination paper has been filled and taking into account the whole of the relevant entry against cols. 2 and 5, we are satisfied that the High Court was right in not upholding the technical objection raised by the appellant. We are not impressed by the argument that the details mentioned in the two columns before Nowgong indicate that Nowgong there means the place of residence of the proposer and the candidate respectively and not the name of the constituency.9. Incidentally we may refer to annexure C mentioned in the judgment of the High Court. This annexure is a notification under S. 30(d) of the Act specifying the dates for the purpose of holding the election. In this notification the serial numbers and the names of the Assembly Constituencies were indicated in the table annexed to it. The relevant Assembly Constituency was shown as "No. 69-Nowgong". Nobody suggested that this description was inaccurate. The learned judges of the High Court thought that in the circumstances of the case the word Nowgong" used in cols. 2 and 5 of the nomination papers signified in the context "Nowgong Assembly Constituency"; and we are satisfied that this view is right.10. Once it is held that on a reasonable construction of the nomination papers the requirements of S. 33 (4) have been complied with, it becomes unnecessary to consider whether the alleged defect was of a substantial character under S. 36(4) of the Act. That is why we do not propose to deal with or discuss the decisions to which our attention was drawn by Mr. Viswanatha Sastri for the appellant. These decisions are : P. N. Balasubrahmanyan v. Election Tribunal of North Arcot, ILR (1954) Mad 677 : (AIR 1954 Mad 730 ), R. v. Tugwell, (1868) 3 QB 704, Gothard v. Clarke, (1880) 5 CPD 253, Baldwin v. Ellis, (1929) 1 KB 273 and Brij Sundar Sharma v. Election Tribunal, Jaipur, 12 ELR 216 : (S (S) AIR 1957 Raj 189 ). In all these decisions a defect or irregularity had been proved in the nomination paper, and so it was necessary to consider the effect of the said defect or irregularity. Since we have held that the nomination paper in the present case is not defective we do not propose to express any opinion on the alternative argument which was urged before us on behalf of the appellant. Mr. Viswanatha Sastri has also fairly invited our attention to the decision of this Court in Karail Singh v. Election Tribunal, Hissar, 10 ELR 189 (SC), which is against his contention. In that case the name of the part of the electoral roll in which the name of the candidate appeared was not filled up against col. 8 of the nomination paper but there was no difficulty in identifying the candidate and the entry of his name in the roll was pointed out to the returning officer, but nevertheless he rejected the nomination paper on the ground that it had not been duly filled up. This Court held, affirming the decision of the majority of the Election Tribunal, that the defect was only technical and not of a substantial character and that the nomination paper was improperly rejected. | 0[ds]This argument has been rejected both by the Election Tribunal as well as by the High Court; and we see no reason to take a differenthaving regard to the manner in which the nomination paper has been filled and taking into account the whole of the relevant entry against cols. 2 and 5, we are satisfied that the High Court was right in not upholding the technical objection raised by the appellant. | 0 | 2,383 | 80 | ### 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:
Number of proposer ...Assam Legislative Assembly Constituency, Part No. 10 of the Electoral Roll of village Phulaniati, Mouza Hatichung, Police Station Sadar, Nowgong, Roll No. 59/1956.3. Name of the candidates father ...Krishna Ram Nath.4. Full postal address of candidate ...Village Phulaniati, Post Office Chakalaghat, District Nowgong, Assam.5. Electoral Roll Number of candidate ...Assam Legislative Assembly Constituency, Part No. 10 of the Electoral roll of village Phulaniati, Mouza Hatichung, Police Station Sadar, Nowgong, Roll No. 275/1956.Date : 28-1-57Sd. Lahi Ram Nath.Signature of proposer.It is clear that this nomination paper specifies the serial number of the entry in the electoral roll as well as the serial number of the part of the electoral roll in which such entry occurs. Both these entries are to be found against cols. 2 and 5. It is, however, urged that the name of the constituency to which the electoral roll relates has not been mentioned either in col. 2 or col. 5. No doubt in both the entries reference is made to Nowgong but the constituency is Nowgong Assembly Constituency, and since the words "Assembly Constituency" do not follow the word Nowgong it cannot be said that the name of the constituency has been properly stated. That is the gist of the argument urged on behalf of the appellant. This argument has been rejected both by the Election Tribunal as well as by the High Court; and we see no reason to take a different view. It is significant that in both the columns the words "Assam Legislative Assembly Constituency" are entered, and then is mentioned Nowgong. Reading each of the two entries as a whole it would not be unreasonable to conclude that the two entries refer to Nowgong Assembly Constituency. The nomination paper begins with the statement that respondent 1 is nominated as a candidate for election from the Nowgong Assembly Constituency, and then in stating the electoral roll number of the proposer and the candidate respectively in cols. 2 and 5 the words "Assam Legislative Assembly Constituency" as well as Nowgong are used. Technically it would have been more accurate to have described the constituency as Nowgong Assembly Constituency, but, having regard to the manner in which both the columns have been filled, we do not think that the High Court was in error in coming to the conclusion that in substance the name of the constituency has been mentioned in the two columns. It is not disputed that the serial number of the entry and the serial number of the part of the electoral roll mentioned in the nomination paper referred to this constituency; and so it is not at all unreasonable to construe the relevant entries in the manner adopted by the Election Tribunal and the High Court. Therefore, having regard to the manner in which the nomination paper has been filled and taking into account the whole of the relevant entry against cols. 2 and 5, we are satisfied that the High Court was right in not upholding the technical objection raised by the appellant. We are not impressed by the argument that the details mentioned in the two columns before Nowgong indicate that Nowgong there means the place of residence of the proposer and the candidate respectively and not the name of the constituency.9. Incidentally we may refer to annexure C mentioned in the judgment of the High Court. This annexure is a notification under S. 30(d) of the Act specifying the dates for the purpose of holding the election. In this notification the serial numbers and the names of the Assembly Constituencies were indicated in the table annexed to it. The relevant Assembly Constituency was shown as "No. 69-Nowgong". Nobody suggested that this description was inaccurate. The learned judges of the High Court thought that in the circumstances of the case the word Nowgong" used in cols. 2 and 5 of the nomination papers signified in the context "Nowgong Assembly Constituency"; and we are satisfied that this view is right.10. Once it is held that on a reasonable construction of the nomination papers the requirements of S. 33 (4) have been complied with, it becomes unnecessary to consider whether the alleged defect was of a substantial character under S. 36(4) of the Act. That is why we do not propose to deal with or discuss the decisions to which our attention was drawn by Mr. Viswanatha Sastri for the appellant. These decisions are : P. N. Balasubrahmanyan v. Election Tribunal of North Arcot, ILR (1954) Mad 677 : (AIR 1954 Mad 730 ), R. v. Tugwell, (1868) 3 QB 704, Gothard v. Clarke, (1880) 5 CPD 253, Baldwin v. Ellis, (1929) 1 KB 273 and Brij Sundar Sharma v. Election Tribunal, Jaipur, 12 ELR 216 : (S (S) AIR 1957 Raj 189 ). In all these decisions a defect or irregularity had been proved in the nomination paper, and so it was necessary to consider the effect of the said defect or irregularity. Since we have held that the nomination paper in the present case is not defective we do not propose to express any opinion on the alternative argument which was urged before us on behalf of the appellant. Mr. Viswanatha Sastri has also fairly invited our attention to the decision of this Court in Karail Singh v. Election Tribunal, Hissar, 10 ELR 189 (SC), which is against his contention. In that case the name of the part of the electoral roll in which the name of the candidate appeared was not filled up against col. 8 of the nomination paper but there was no difficulty in identifying the candidate and the entry of his name in the roll was pointed out to the returning officer, but nevertheless he rejected the nomination paper on the ground that it had not been duly filled up. This Court held, affirming the decision of the majority of the Election Tribunal, that the defect was only technical and not of a substantial character and that the nomination paper was improperly rejected.
### Response:
0
### Explanation:
This argument has been rejected both by the Election Tribunal as well as by the High Court; and we see no reason to take a differenthaving regard to the manner in which the nomination paper has been filled and taking into account the whole of the relevant entry against cols. 2 and 5, we are satisfied that the High Court was right in not upholding the technical objection raised by the appellant.
|
New India Assurance Co. Ltd Vs. Sadanand Mukhi | in the claim petition or otherwise, he himself was to be blamed for the accident. The accident did not involve motor vehicle other than the one which he was driving. The question which arises for consideration is that the deceased himself being negligent, the claim petition under Section 166 of the Motor Vehicles Act, 1988 would be maintainable.11. Liability of the insurer Company is to the extent of indemnification of the insured against the respondent or an injured person, a third person or in respect of damages of property. Thus, if the insured cannot be fastened with any liability under the provisions of the Motor Vehicles Act, the question of the insurer being liable to indemnify the insured, therefore, does not arise." It was furthermore held :- "13. The additional premium was not paid in respect of the entire risk of death or bodily injury of the owner of the vehicle. If that be so, Section 147(b) of the Motor Vehicles Act which in no uncertain terms covers a risk of a third party only would be attracted in the present case." The matter came up for consideration yet again in Oriental Insurance Co. Ltd. v. Meena Variyal [(2007) 5 SCC 428] wherein it was observed :- "13. As we understand Section 147(1) of the Act, an insurance policy thereunder need not cover the liability in respect of death or injury arising out of and in the course of the employment of an employee of the person insured by the policy, unless it be a liability arising under the Workmens Compensation Act, 1923 in respect of a driver, also the conductor, in the case of a public service vehicle, and the one carried in the vehicle as owner of the goods or his representative, if it is a goods vehicle. It is provided that the policy also shall not be required to cover any contractual liability. Uninfluenced by authorities, we find no difficulty in understanding this provision as one providing that the policy must insure an owner against any liability to a third party caused by or arising out of the use of the vehicle in a public place, and against death or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of vehicle in a public place. The proviso clarifies that the policy shall not be required to cover an employee of the insured in respect of bodily injury or death arising out of and in the course of his employment. Then, an exception is provided to the last foregoing to the effect that the policy must cover a liability arising under the Workmens Compensation Act, 1923 in respect of the death or bodily injury to an employee who is engaged in driving the vehicle or who serves as a conductor in a public service vehicle or an employee who travels in the vehicle of the employer carrying goods if it is a goods carriage. Section 149(1), which casts an obligation on an insurer to satisfy an award, also speaks only of award in respect of such liability as is required to be covered by a policy under clause (b) of sub- section (1) of Section 147 (being a liability covered by the terms of the policy). This provision cannot therefore be used to enlarge the liability if it does not exist in terms of Section 147 of the Act.14. The object of the insistence on insurance under Chapter XI of the Act thus seems to be to compulsorily cover the liability relating to their person or properties of third parties and in respect of employees of the insured employer, the liability that may arise under the Workmens Compensation Act, 1923 in respect of the driver, the conductor and the one carried in a goods vehicle carrying goods. On this plain understanding of Section 147, we find it difficult to hold that the Insurance Company, in the case on hand, was liable to indemnify the owner, the employer Company, the insured, in respect of the death of one of its employees, who according to the claim, was not the driver. Be it noted that the liability is not one arising under the Workmens Compensation Act, 1923 and it is doubtful, on the case put forward by the claimant, whether the deceased could be understood as a workman coming within the Workmens Compensation Act, 1923. Therefore, on a plain reading of Section 147 of the Act, it appears to be clear that the Insurance Company is not liable to indemnify the insured in the case on hand." The said principle was reiterated in United India Insurance Co. Ltd. v. Davinder Singh, [ (2007) 8 SCC 698 ] holding :- "10. It is, thus, axiomatic that whereas an insurance company may be held to be liable to indemnify the owner for the purpose of meeting the object and purport of the provisions of the Motor Vehicles Act, the same may not be necessary in a case where an insurance company may refuse to compensate the owner of the vehicle towards his own loss. A distinction must be borne in mind as regards the statutory liability of the insurer vis-à-vis the purport and object sought to be achieved by a beneficent legislation before a forum constituted under the Motor Vehicles Act and enforcement of a contract qua contract before a Consumer Forum." 19. Learned counsel for the respondents would contend that the object and purport of the Act being to cover the risk to life of any person, the said decision should be applied in this case also. We do not think that it would be a correct reading of the said judgment as therein National Insurance Co. Ltd. v. Laxmi Narain Dhut, [ (2007) 3 SCC 700 ] has been followed. In Laxmi Narain Dhut (supra) a distinction between a statutory policy and a contractual policy has clearly been made out.These decisions, clearly, are applicable to the fact of the present case.20. | 1[ds]The provisions of the Act, therefore, provide for two types of insurance - one statutory in nature and the other contractual in nature. Whereas the insurance company is bound to compensate the owner or the driver of the motor vehicle in case any person dies or suffers injury as a result of an accident; in case involving owner of the vehicle or others are proposed to be covered, an additional premium is required to be paid for covering their life andis not a case where even Section 163-A of the Act was resorted to. Respondents filed an application under Section 166 of the Act. Only an act policy was taken in respect of the motor vehicle. Submission of the learned counsel that being a two wheelers, the vehicle was more prone to accident and, therefore, whosoever becomes victim of an accident arising out of the use thereof would come within the purview of the term "a person" as provided for in Section 147 of the Act, in our opinion, is notbecause driving of a motor vehicle may cause accident involving loss of life and property not only of a third party but also the owner of the vehicle and the insured vehicle itself, different provisions have been made in the Insurance Act as also the Act laying down different types of insurance policies. The amount of premium required to be paid for each of the policy is governed by the Insurance Act. A statutory regulatory authority fixes the norms and theUnited India Insurance Co. Ltd. v. Tilak Singh, [ (2006) 4 SCC 404 ] this Court considered the provisions of the Motor Vehicles Act, 1939 as also 1988 Act and inter alia opined that the insurance company would have no liability towards the injuries suffered by the deceased who was a pillion rider, as the insurance policy was a statutory policy which did not cover the gratuitousdo not think that it would be a correct reading of the said judgment as therein National Insurance Co. Ltd. v. Laxmi Narain Dhut, [ (2007) 3 SCC 700 ] has been followed. In Laxmi Narain Dhut (supra) a distinction between a statutory policy and a contractual policy has clearly been made out.These decisions, clearly, are applicable to the fact of the present case. | 1 | 3,718 | 416 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
in the claim petition or otherwise, he himself was to be blamed for the accident. The accident did not involve motor vehicle other than the one which he was driving. The question which arises for consideration is that the deceased himself being negligent, the claim petition under Section 166 of the Motor Vehicles Act, 1988 would be maintainable.11. Liability of the insurer Company is to the extent of indemnification of the insured against the respondent or an injured person, a third person or in respect of damages of property. Thus, if the insured cannot be fastened with any liability under the provisions of the Motor Vehicles Act, the question of the insurer being liable to indemnify the insured, therefore, does not arise." It was furthermore held :- "13. The additional premium was not paid in respect of the entire risk of death or bodily injury of the owner of the vehicle. If that be so, Section 147(b) of the Motor Vehicles Act which in no uncertain terms covers a risk of a third party only would be attracted in the present case." The matter came up for consideration yet again in Oriental Insurance Co. Ltd. v. Meena Variyal [(2007) 5 SCC 428] wherein it was observed :- "13. As we understand Section 147(1) of the Act, an insurance policy thereunder need not cover the liability in respect of death or injury arising out of and in the course of the employment of an employee of the person insured by the policy, unless it be a liability arising under the Workmens Compensation Act, 1923 in respect of a driver, also the conductor, in the case of a public service vehicle, and the one carried in the vehicle as owner of the goods or his representative, if it is a goods vehicle. It is provided that the policy also shall not be required to cover any contractual liability. Uninfluenced by authorities, we find no difficulty in understanding this provision as one providing that the policy must insure an owner against any liability to a third party caused by or arising out of the use of the vehicle in a public place, and against death or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of vehicle in a public place. The proviso clarifies that the policy shall not be required to cover an employee of the insured in respect of bodily injury or death arising out of and in the course of his employment. Then, an exception is provided to the last foregoing to the effect that the policy must cover a liability arising under the Workmens Compensation Act, 1923 in respect of the death or bodily injury to an employee who is engaged in driving the vehicle or who serves as a conductor in a public service vehicle or an employee who travels in the vehicle of the employer carrying goods if it is a goods carriage. Section 149(1), which casts an obligation on an insurer to satisfy an award, also speaks only of award in respect of such liability as is required to be covered by a policy under clause (b) of sub- section (1) of Section 147 (being a liability covered by the terms of the policy). This provision cannot therefore be used to enlarge the liability if it does not exist in terms of Section 147 of the Act.14. The object of the insistence on insurance under Chapter XI of the Act thus seems to be to compulsorily cover the liability relating to their person or properties of third parties and in respect of employees of the insured employer, the liability that may arise under the Workmens Compensation Act, 1923 in respect of the driver, the conductor and the one carried in a goods vehicle carrying goods. On this plain understanding of Section 147, we find it difficult to hold that the Insurance Company, in the case on hand, was liable to indemnify the owner, the employer Company, the insured, in respect of the death of one of its employees, who according to the claim, was not the driver. Be it noted that the liability is not one arising under the Workmens Compensation Act, 1923 and it is doubtful, on the case put forward by the claimant, whether the deceased could be understood as a workman coming within the Workmens Compensation Act, 1923. Therefore, on a plain reading of Section 147 of the Act, it appears to be clear that the Insurance Company is not liable to indemnify the insured in the case on hand." The said principle was reiterated in United India Insurance Co. Ltd. v. Davinder Singh, [ (2007) 8 SCC 698 ] holding :- "10. It is, thus, axiomatic that whereas an insurance company may be held to be liable to indemnify the owner for the purpose of meeting the object and purport of the provisions of the Motor Vehicles Act, the same may not be necessary in a case where an insurance company may refuse to compensate the owner of the vehicle towards his own loss. A distinction must be borne in mind as regards the statutory liability of the insurer vis-à-vis the purport and object sought to be achieved by a beneficent legislation before a forum constituted under the Motor Vehicles Act and enforcement of a contract qua contract before a Consumer Forum." 19. Learned counsel for the respondents would contend that the object and purport of the Act being to cover the risk to life of any person, the said decision should be applied in this case also. We do not think that it would be a correct reading of the said judgment as therein National Insurance Co. Ltd. v. Laxmi Narain Dhut, [ (2007) 3 SCC 700 ] has been followed. In Laxmi Narain Dhut (supra) a distinction between a statutory policy and a contractual policy has clearly been made out.These decisions, clearly, are applicable to the fact of the present case.20.
### Response:
1
### Explanation:
The provisions of the Act, therefore, provide for two types of insurance - one statutory in nature and the other contractual in nature. Whereas the insurance company is bound to compensate the owner or the driver of the motor vehicle in case any person dies or suffers injury as a result of an accident; in case involving owner of the vehicle or others are proposed to be covered, an additional premium is required to be paid for covering their life andis not a case where even Section 163-A of the Act was resorted to. Respondents filed an application under Section 166 of the Act. Only an act policy was taken in respect of the motor vehicle. Submission of the learned counsel that being a two wheelers, the vehicle was more prone to accident and, therefore, whosoever becomes victim of an accident arising out of the use thereof would come within the purview of the term "a person" as provided for in Section 147 of the Act, in our opinion, is notbecause driving of a motor vehicle may cause accident involving loss of life and property not only of a third party but also the owner of the vehicle and the insured vehicle itself, different provisions have been made in the Insurance Act as also the Act laying down different types of insurance policies. The amount of premium required to be paid for each of the policy is governed by the Insurance Act. A statutory regulatory authority fixes the norms and theUnited India Insurance Co. Ltd. v. Tilak Singh, [ (2006) 4 SCC 404 ] this Court considered the provisions of the Motor Vehicles Act, 1939 as also 1988 Act and inter alia opined that the insurance company would have no liability towards the injuries suffered by the deceased who was a pillion rider, as the insurance policy was a statutory policy which did not cover the gratuitousdo not think that it would be a correct reading of the said judgment as therein National Insurance Co. Ltd. v. Laxmi Narain Dhut, [ (2007) 3 SCC 700 ] has been followed. In Laxmi Narain Dhut (supra) a distinction between a statutory policy and a contractual policy has clearly been made out.These decisions, clearly, are applicable to the fact of the present case.
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Manipal University Vs. Union Of India | in excess of the 15 per cent of the intake, the quota reserved for other categories will be reduced adversely affecting the merit based selection. He also submitted that the 1997 Regulations empower the second Respondent to issue suitable directions to ensure merit based selections. Therefore, the second Respondent was competent to issue directions to restrict admissions to NRI seats for the years 2005 to 2008. He relied upon a judgment of this Court in Mridul Dhar v. Union of India (2008) 17 SCC 435 , wherein it was held that excess admission made by an institution in the management quota can be offset by reduction of seats in the succeeding years. He further submitted that there was no need for the second Respondent to challenge the findings of the High Court that Section 10-A of the Medical Council Act does not confer power on the second Respondent to regulate or supervise the admissions to sub categories. 8. The issues before us are:- I. Whether the MCI is the competent authority/justified to issue direction disallowing the Appellant to make admissions in the NRI quota for three years?II. Whether the decision in PA Inamdar (supra) operates retrospectively with respect to the letter dated 08.02.2005?III. Whether the decision in PA Inamdar applies to Deemed Universities or only to private colleges? 9. There is no doubt that the Appellant was granted the status of a Deemed University in the year 1993. There is also no controversy about the directions issued by this Court regarding pegging of the NRI quota in medical colleges at 15 per cent. Admittedly, the Appellant has made admissions to NRI quota beyond 15 per cent. Both sides agree that the Medical Council of India does not have the power to fix the quotas to sub categories within the total intake. The principal question that arises for our consideration is regarding the correctness of the directions issued by the second Respondent to the Appellant not to fill up 103 seats in the category of NRI/foreign students during the years 2005 to 2008. 10. Determination of a quota for NRI seats is beyond the domain of the second Respondent. The direction given by the second Respondent by its letter dated 08.02.2005 directing the Appellant not to make admissions in the NRI quota to the extent of 103 seats during the years 2005 to 2008 amounts to interfering with the quota. We do not agree with the submission made by Mr. Vikas Singh that the second Respondent has power to issue such directions in the interest of merit based selection as provided by Regulation 5 of the 1997 Regulations. It is no doubt true that the second Respondent has a duty to ensure merit based selections. However, no direction can be issued by the second Respondent interfering with the regulation or supervision of sub categories. The direction issued by the second Respondent by its letter dated 08.02.2005 is ultra vires and is liable to be declared illegal. Exercise of power by an authority has to be within the contours conferred by the statute and for the purpose of promoting the objectives of the statute. There is no express power conferred on the second Respondent in the Medical Council of India Act to interfere in allocation of quotas for sub categories. In the facts and circumstances of this case it is not possible to hold that the second Respondent has power to issue directions pertaining to NRI quota even by reasonable implication. It is relevant to refer to a judgment of the House of Lords in Baroness Wenlock v. River Dee Co., (1885) 10 AC 354 at 362: "But I cannot assent to the doctrine which was contended for by Mr. Rigby. Whenever a corporation is created by an Act of Parliament, with reference to the purposes of the Act, and solely with a view to carry on these purposes into execution, I am of opinion, not only that the objects which the Corporation may legitimately pursue must be ascertained from the Act itself, but that the powers which the corporation may lawfully use in furtherance of these objects must either be expressly conferred or derived by reasonable implication from its provisions. That appears to me to be the principle recognised by this House in Ashbury Company v. Riche (Law Rep. 7 H.L. 653) and in Attorney-General v. Great Eastern Railway Company (5 App. Cas. 473)". 11. There is no dispute that this Court permitted the Medical Colleges to admit NRI students to the extent of 15 per cent of their quota. There is also no dispute that the Appellant made admissions beyond 15 per cent to the NRI quota of the total intake. The question is whether the second Respondent has jurisdiction to restrict admissions to the NRI quota on the ground that the Appellant acted in violation of the interim orders of this Court. The Appellant being a Deemed University is governed by the provisions of the UGC Act and the competent authority to take any action for violation of the provisions of the Act regarding maintenance of standards is the Commission.12. The 1997 Regulations obligate the second Respondent to ensure merit based selection to admissions in medical colleges. However, the second Respondent cannot issue directions interfering with the quota in the guise of exercising power under Regulation 5 of the said Regulations. It is settled law that what cannot be done directly, cannot be done indirectly. See State of Tamil Nadu and Ors. v. K. Shyam Sunder an21772d Ors. (2011) 8 SCC 737 ( Para 43).13. As we have held that that the direction issued by the second Respondent in its letter 08.02.2005 is vitiated as it suffers from the vice of lack of jurisdiction, it is not necessary to deal with the other submissions made on behalf of the Appellant. We also take note of the fact that the direction issued by the Medical Council of India was not implemented either for the years 2005 to 2008 or thereafter. | 1[ds]9. There is no doubt that the Appellant was granted the status of a Deemed University in the year 1993. There is also no controversy about the directions issued by this Court regarding pegging of the NRI quota in medical colleges at 15 per cent. Admittedly, the Appellant has made admissions to NRI quota beyond 15 per cent. Both sides agree that the Medical Council of India does not have the power to fix the quotas to sub categories within the totaldirection given by the second Respondent by its letter dated 08.02.2005 directing the Appellant not to make admissions in the NRI quota to the extent of 103 seats during the years 2005 to 2008 amounts to interfering with the quota. We do not agree with the submission made by Mr. Vikas Singh that the second Respondent has power to issue such directions in the interest of merit based selection as provided by Regulation 5 of the 1997 Regulations. It is no doubt true that the second Respondent has a duty to ensure merit based selections. However, no direction can be issued by the second Respondent interfering with the regulation or supervision of sub categories. The direction issued by the second Respondent by its letter dated 08.02.2005 is ultra vires and is liable to be declared illegal. Exercise of power by an authority has to be within the contours conferred by the statute and for the purpose of promoting the objectives of the statute. There is no express power conferred on the second Respondent in the Medical Council of India Act to interfere in allocation of quotas for sub categories. In the facts and circumstances of this case it is not possible to hold that the second Respondent has power to issue directions pertaining to NRI quota even by reasonable implication.There is no dispute that this Court permitted the Medical Colleges to admit NRI students to the extent of 15 per cent of their quota. There is also no dispute that the Appellant made admissions beyond 15 per cent to the NRI quota of the total intake. The question is whether the second Respondent has jurisdiction to restrict admissions to the NRI quota on the ground that the Appellant acted in violation of the interim orders of this Court. The Appellant being a Deemed University is governed by the provisions of the UGC Act and the competent authority to take any action for violation of the provisions of the Act regarding maintenance of standards is the Commission.12. The 1997 Regulations obligate the second Respondent to ensure merit based selection to admissions in medical colleges. However, the second Respondent cannot issue directions interfering with the quota in the guise of exercising power under Regulation 5 of the said Regulations. It is settled law that what cannot be done directly, cannot be done indirectly. See State of Tamil Nadu and Ors. v. K. Shyam Sunder an21772d Ors. (2011) 8 SCC 737 ( Para 43).13. As we have held that that the direction issued by the second Respondent in its letter 08.02.2005 is vitiated as it suffers from the vice of lack of jurisdiction, it is not necessary to deal with the other submissions made on behalf of the Appellant. We also take note of the fact that the direction issued by the Medical Council of India was not implemented either for the years 2005 to 2008 or thereafter. | 1 | 2,190 | 605 | ### Instruction:
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in excess of the 15 per cent of the intake, the quota reserved for other categories will be reduced adversely affecting the merit based selection. He also submitted that the 1997 Regulations empower the second Respondent to issue suitable directions to ensure merit based selections. Therefore, the second Respondent was competent to issue directions to restrict admissions to NRI seats for the years 2005 to 2008. He relied upon a judgment of this Court in Mridul Dhar v. Union of India (2008) 17 SCC 435 , wherein it was held that excess admission made by an institution in the management quota can be offset by reduction of seats in the succeeding years. He further submitted that there was no need for the second Respondent to challenge the findings of the High Court that Section 10-A of the Medical Council Act does not confer power on the second Respondent to regulate or supervise the admissions to sub categories. 8. The issues before us are:- I. Whether the MCI is the competent authority/justified to issue direction disallowing the Appellant to make admissions in the NRI quota for three years?II. Whether the decision in PA Inamdar (supra) operates retrospectively with respect to the letter dated 08.02.2005?III. Whether the decision in PA Inamdar applies to Deemed Universities or only to private colleges? 9. There is no doubt that the Appellant was granted the status of a Deemed University in the year 1993. There is also no controversy about the directions issued by this Court regarding pegging of the NRI quota in medical colleges at 15 per cent. Admittedly, the Appellant has made admissions to NRI quota beyond 15 per cent. Both sides agree that the Medical Council of India does not have the power to fix the quotas to sub categories within the total intake. The principal question that arises for our consideration is regarding the correctness of the directions issued by the second Respondent to the Appellant not to fill up 103 seats in the category of NRI/foreign students during the years 2005 to 2008. 10. Determination of a quota for NRI seats is beyond the domain of the second Respondent. The direction given by the second Respondent by its letter dated 08.02.2005 directing the Appellant not to make admissions in the NRI quota to the extent of 103 seats during the years 2005 to 2008 amounts to interfering with the quota. We do not agree with the submission made by Mr. Vikas Singh that the second Respondent has power to issue such directions in the interest of merit based selection as provided by Regulation 5 of the 1997 Regulations. It is no doubt true that the second Respondent has a duty to ensure merit based selections. However, no direction can be issued by the second Respondent interfering with the regulation or supervision of sub categories. The direction issued by the second Respondent by its letter dated 08.02.2005 is ultra vires and is liable to be declared illegal. Exercise of power by an authority has to be within the contours conferred by the statute and for the purpose of promoting the objectives of the statute. There is no express power conferred on the second Respondent in the Medical Council of India Act to interfere in allocation of quotas for sub categories. In the facts and circumstances of this case it is not possible to hold that the second Respondent has power to issue directions pertaining to NRI quota even by reasonable implication. It is relevant to refer to a judgment of the House of Lords in Baroness Wenlock v. River Dee Co., (1885) 10 AC 354 at 362: "But I cannot assent to the doctrine which was contended for by Mr. Rigby. Whenever a corporation is created by an Act of Parliament, with reference to the purposes of the Act, and solely with a view to carry on these purposes into execution, I am of opinion, not only that the objects which the Corporation may legitimately pursue must be ascertained from the Act itself, but that the powers which the corporation may lawfully use in furtherance of these objects must either be expressly conferred or derived by reasonable implication from its provisions. That appears to me to be the principle recognised by this House in Ashbury Company v. Riche (Law Rep. 7 H.L. 653) and in Attorney-General v. Great Eastern Railway Company (5 App. Cas. 473)". 11. There is no dispute that this Court permitted the Medical Colleges to admit NRI students to the extent of 15 per cent of their quota. There is also no dispute that the Appellant made admissions beyond 15 per cent to the NRI quota of the total intake. The question is whether the second Respondent has jurisdiction to restrict admissions to the NRI quota on the ground that the Appellant acted in violation of the interim orders of this Court. The Appellant being a Deemed University is governed by the provisions of the UGC Act and the competent authority to take any action for violation of the provisions of the Act regarding maintenance of standards is the Commission.12. The 1997 Regulations obligate the second Respondent to ensure merit based selection to admissions in medical colleges. However, the second Respondent cannot issue directions interfering with the quota in the guise of exercising power under Regulation 5 of the said Regulations. It is settled law that what cannot be done directly, cannot be done indirectly. See State of Tamil Nadu and Ors. v. K. Shyam Sunder an21772d Ors. (2011) 8 SCC 737 ( Para 43).13. As we have held that that the direction issued by the second Respondent in its letter 08.02.2005 is vitiated as it suffers from the vice of lack of jurisdiction, it is not necessary to deal with the other submissions made on behalf of the Appellant. We also take note of the fact that the direction issued by the Medical Council of India was not implemented either for the years 2005 to 2008 or thereafter.
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9. There is no doubt that the Appellant was granted the status of a Deemed University in the year 1993. There is also no controversy about the directions issued by this Court regarding pegging of the NRI quota in medical colleges at 15 per cent. Admittedly, the Appellant has made admissions to NRI quota beyond 15 per cent. Both sides agree that the Medical Council of India does not have the power to fix the quotas to sub categories within the totaldirection given by the second Respondent by its letter dated 08.02.2005 directing the Appellant not to make admissions in the NRI quota to the extent of 103 seats during the years 2005 to 2008 amounts to interfering with the quota. We do not agree with the submission made by Mr. Vikas Singh that the second Respondent has power to issue such directions in the interest of merit based selection as provided by Regulation 5 of the 1997 Regulations. It is no doubt true that the second Respondent has a duty to ensure merit based selections. However, no direction can be issued by the second Respondent interfering with the regulation or supervision of sub categories. The direction issued by the second Respondent by its letter dated 08.02.2005 is ultra vires and is liable to be declared illegal. Exercise of power by an authority has to be within the contours conferred by the statute and for the purpose of promoting the objectives of the statute. There is no express power conferred on the second Respondent in the Medical Council of India Act to interfere in allocation of quotas for sub categories. In the facts and circumstances of this case it is not possible to hold that the second Respondent has power to issue directions pertaining to NRI quota even by reasonable implication.There is no dispute that this Court permitted the Medical Colleges to admit NRI students to the extent of 15 per cent of their quota. There is also no dispute that the Appellant made admissions beyond 15 per cent to the NRI quota of the total intake. The question is whether the second Respondent has jurisdiction to restrict admissions to the NRI quota on the ground that the Appellant acted in violation of the interim orders of this Court. The Appellant being a Deemed University is governed by the provisions of the UGC Act and the competent authority to take any action for violation of the provisions of the Act regarding maintenance of standards is the Commission.12. The 1997 Regulations obligate the second Respondent to ensure merit based selection to admissions in medical colleges. However, the second Respondent cannot issue directions interfering with the quota in the guise of exercising power under Regulation 5 of the said Regulations. It is settled law that what cannot be done directly, cannot be done indirectly. See State of Tamil Nadu and Ors. v. K. Shyam Sunder an21772d Ors. (2011) 8 SCC 737 ( Para 43).13. As we have held that that the direction issued by the second Respondent in its letter 08.02.2005 is vitiated as it suffers from the vice of lack of jurisdiction, it is not necessary to deal with the other submissions made on behalf of the Appellant. We also take note of the fact that the direction issued by the Medical Council of India was not implemented either for the years 2005 to 2008 or thereafter.
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Adhyaksha Mathur Babu'S Sakti Oushadhalaya Dacca (P) Ltd.A Vs. Union Of India | appear that any action on the lines suggested by the Committee was taken by the Government of India. In these circumstances we have on the one side the three standard Ayurvedic text books according to which these preparations are prepared; we have also the affidavits of a large number of Ayurvedic practitioners of obvious repute to the effect that these preparations are medicinal preparations which are used to alleviate human suffering in certain conditions. On the other hand, there is no affidavit from an Ayurvedic expert on behalf of the respondents. We may, however in this connection refer to an affidavit of the Assistant Chemical Examiner to the Government of West Bengal who is experienced in examining and analysing alcoholic liquors. According to him, the chief basis of these three preparations is molasses and gur, which is a fact as we have already pointed out from the recipe in the Ayurvedic text books. He further says that in these three preparations there are several steam volatile products, namely, furfural, aldehydes, ketones and acids but the presence of the same does not destroy or minimise the effect of alcoholic intoxication of these preparations. He further says that the taste or smell of these preparations does not make them unfit for drinking in a large dose and they can be used as an alcoholic beverage. Even this affidavit does not say these are not medicinal preparations. All that it says is that these preparations contain about 42 per centum of alcohol and can be used as ordinary alcoholic beverages. So if these preparations are medicinal preparations but are also capable of being used as ordinary alcoholic beverage, they will fall under the Act and will be liable to duty under Item No. 1 of the Schedule at the rate of Rs. 17.50 nP. per gallon of the strength of London proof spirit.16. On a consideration of the material that has been placed before us, therefore, the only conclusion to which we can come is that these preparations are medicinal preparations according to the standard Ayurvedic text books referred to already though they are also capable of being used as ordinary alcoholic beverages. They will therefore clearly fall within the definition of "medicinal preparation" and would be liable to duty under Item 1 of the Schedule to the Act. So far as the decision of the Standing Committee is concerned which resulted in the omission of these three preparations from the list attached to the Rules, that is not conclusive on the question whether these are medicinal preparations or not. Further the fact that these preparations are omitted from the list attached to the Rules would make no difference to their being medicinal preparations within the meaning of the Act, liable to duty under Item 1 of the Schedule, if they are in fact medicinal preparations as we hold them to be. They will therefore be liable to duty under Item 1 of the Schedule to the Act as they undoubtedly fall under that item and are capable of being consumed as ordinary alcoholic beverages. They cannot however be taxed under the various Excise Acts in force in the concerned States in view of their being medicinal preparations which are governed by the Act.17. Lastly, it was urged on behalf of the respondents that these preparations are not prepared according to the formulae in the Ayurvedic text books referred to above. That is a question of fact which it is not possible for us to decide on the materials placed before us. The averment in this connection on behalf of the respondents is also not categorical; for example, it has been stated on behalf of the Union of India that it is not admitted that these preparations are prepared according to the specifications by utilising the proper ingredients and are manufactured according to the recipe and direction given in the Ayurvedic text books referred to above. Nothing has been brought on the record to show that these preparations were analysed and the analysis showed that the ingredients mentioned in the Ayurvedic text books were not present in the preparations. Besides as it appears from the West Bengal Rules, (ref. West Bengal Excise Compilation, Pt. 2) which we have quoted above, these preparations are prepared in bond and these are various restrictions before the issue of the preparations by the manufacturer. Nothing has been said to show that these preparations are not in fact made in accordance with the direction contained in the Ayurvedic text books. If this was not so the excise staff would be there to check their preparation. As a mater of fact the first rule with respect to the manufacture of these preparations in the West Bengal Excise Compilation lays down that they will be prepared according to the recipe and direction in Arka Prakash, Ayurved Sangraha and Bhaisajya-Ratnabali; and if that rule is being disobeyed we should have expected some-one to swear that though the rule says that the preparations should be made according to the directions in these text book they are in fact not so made. Further if the rule is being contravened, there must be power in the State Government to take action against those who contravene the rule. But nothing has been brought to our notice to show that any action had been taken. In these circumstances we are not prepared to hold that these preparations are not prepared according to the Ayurvedic text books; and in any case our decision holding these three preparations as medicinal preparations is based on the these preparations being made in accordance with the directions contained in the Ayurvedic text books and also in accordance with the Rules in the West Bengal Excise Compilation. We presume that the same must be the State of affairs in other States where these preparations are manufactured, though it appears that the petitioners in the present case are mostly from Calcutta and the manufacture in these case must be going on in Calcutta.18. | 1[ds]Further in 1958, Mritasanjibani and Mritasanjibani Sudha were also added under the head "medicinal preparations" in the Schedule to the Rules as the three are really one and the same medicine. The Act and the. Rules came into force from April l, 1957 in accordance with the provision of Section 1(3) of the Act, which gives power to the Central Government to enforce the Act on such date as it may, by notification in the official gazette, appoint. The petitioners case is that thereafter they began to pay duties of excise on these three medicines under item 1 in the Schedule to the Act at the rate of Rs. 17.50 nP. per gallon of the strength of London proof spirit, as these preparations were considered medicinal preparations containing alcohol which were prepared by distillation or to which alcohol was added and which were capable of being used as ordinary alcoholic beverages. This continued till August 1960 when the Central Government purporting to act under Section 19 of the Act amended the Rules and omitted from the Schedule to the Rules two of the three preparations, namely, Mritasanjibani and Mritasanjibani Sudha. Further in December, 1960 the Central Government again amended the Rules and omitted from the Schedule to the Rules the third preparation (namely, Mritasanjibani Sura). Consequently, variousbegan demanding duties of excise on these three preparations at rates which are much higher than the rate of Rs.1750 Np. prescribed in the Schedule to the Act. The contention of the petitioners is that on the coming into force of the Act, the levy of excise duties on these medicinal preparations fell within item 84 of List I, with the result that thereafter it is not open toto levy duties of excise on these preparation in accordance with the various Excise Acts in force in the States. It is further contended that if these preparations in fact come within the definition of "medicinal preparation" in S. 2(g) of the Act and are covered by the Schedule to the Act the omission of these three preparations from the list attached to the Rules would make no difference and would not give power to theto tax them under the various Excise Acts in force in the Statethey are medicinal preparations as defined therein they will be governed by the Act, and the omission of these preparations from the list appended to the Rules will not make any difference to their being medicinal preparations within the meaning of the Act. Before, however, we deal with this main question, we may dispose of a contention raised on behalf of the State of Bihar that even if the three preparations are medicinal preparations they will be liable to duty both under the Act as well as under the various Excise Acts, in force in the various States. We have already pointed out that under the Government of India Act, 1935, medicinal and toilet preparations were liable to duties of excise under Entry 40 of List II of the Seventh Schedule to that Act. Correspondingly under Item 45 of List I ibid which provides for duties of excise on tobacco and other goods manufactured or produced in India, medicinal and toilet preparations were excepted from that entry. Therefore, till the Constitution came into force thehad power to levy duties of excise on medicinal and toilet preparations. We have further pointed out that the Constitution has made a change, and medicinal and toilet preparations were excepted from Entry 51 of List II of the Seventh Schedule to the Constitution relating to duties of excise leviable by States and were put in Entry 84 of List I ibid which provides for duties of excise leviable by the Union. However, Art. 277 provides that any taxes or duties etc., which immediately before the commencement of the Constitution, were being lawfully levied by the Government of any State, etc., may notwithstanding that those taxes, duties etc., are mentioned in. the Union List, continue to be levied and to be applied to the same purpose until provision to the contrary is made by Parliament by law.Therefore, so long as Parliament did not make any law relating to medicinal and toilet preparations, the position under the Government of India Act would continue and the States would have the power to continue levying duties of excise on medicinal and toilet preparations to the same extent to which they were levying them immediately before the commencement of the Constitution. In 1955, Parliament passed the Act for levy of duties of excise on medicinal and toilet preparations. This Act was brought into force from April 1, 1957, and the consequence of this enactment was that the power of the State to levy duties any further on medicinal and toilet preparations came to an end in view of Art. 277 of the Constitution. There can in our opinion be no doubt that Art. 277 which saved the power of the States to levy duties of excise etc., which came in the Union List on the passing of the Constitution is no longer applicable as soon as Parliament makes a provision to the contrary. Once therefore a provision to the contrary is made, the saving provided in Art. 277 comes to an end and thereafter thecannot continue to levy any duty which they might have been levying by virtue of Art. 277 till provision to the Contrary was made. Further, this conclusion which follows from Art. 277 is made perfectly clear by Section 21 of the Act. which providesimmediately before the commencement of the Act there is in force in any State any law corresponding to this Act, that law is herebyto the West Bengal Excise Rules, which deal with the manufacture of these three preparations, it appears that the preparations are to be made according to the recipe and direction laid down in Arka Prakash, Ayurved Sangraha, and Bhaisajya Ratanabali, and have to be manufactured only in bond by a qualified Kabiraj or by a Kabirji frim having a qualified Kabiraj for supervision of the manufacturing operations. Further, the alcoholic content of the preparations must be below 42 per centum. According to the recipe found in these Ayuuvedic books, the basic ingredient out of which these preparations are manufactured is gur; besides gur there are 42 other ingredients which have to be mixed. These ingredients are medicinal drugs according to Ayurveda. In addition to these ingredients, water is also mixed and the whole mixture is kept sealed for 20 days, presumably for the purpose of fermentation and thereafter the preparation is obtained by distillation and as already stated contains about 42 per centum of alcohol, further according to these books the preparation is used as a tonic to build body and physique to increase strength and appetite and to make appearance healthy and bright. It is also used in Sannipat Jwara (typhoid fever) in critical stages. It is also prescribed for cholera in frequent doses and finally is used in all conditions of collapse. Thefiled on behalf of the Union and the States which are opposing these petitions do not definitely state that these preparations are not medicinal preparations. For example, in the affidavit of the State of West Bengal, it is stated that it is not admitted that these preparations are exclusively for medicinal purposes. It is also stated that these alcoholic preparations are capable of being used as ordinary alcoholic beverages. Similarly, in the affidavit of the Union, it is stated that it is not admitted that the preparations are efficacious remedies for any human ailment on the other hand a number of affidavits have been filed on behalf of the petitioners from registered Kabirajas to show that these preparations art manufactured according to the three Ayurvedic books already mentioned and are used for certain diseases including cholera. The respondents, however rely on the advice of the Standing Committee consisting of the Drugs Controller of the Government of India, and the Chief Chemist, Central Revenues Control Laboratory, which was of opinion after examining the formulae and the analytical data and the claims given on the label of the preparations and also after carrying out tasting test, that these three preparations should be considered straightforward beverages and not as medicinal preparations. It was in consequence of this decision that these three preparations were taken out of the list attached to the Rules framed under the Act. The two members of the Standing Committee do not appear to be experts in Ayurvedic medicines and no affidavit has been filed of any Ayurvedic expert on behalf of the respondents. There seems no reason therefore not to accept the affidavits filed on behalf of the petitioners from qualified Ayurvedic practitioners: series F to F 16. These Ayurvedic practitioners are not connected with the petitioners and what they say in their affidavits is in accordance with the use to which these preparations can be put as medicines according to the three Ayurvedic text books already referred to. In these circumstances it would in our opinion be impossible to say that these preparations are not remedies prepared for internal use of human beings and are not intended to be used for or in the treatment, mitigation or prevention of disease in human beings.If therefore they are a remedy preparaed for internal use of human being and are intended to be used for or in treatment, mitigation and prevention of disease in human beings, they would clearly be medicinal preparations within the meaning of S 2(g) of the Act; and if so, they would be liable to be taxed under the Schedule to the Act and not under the various Excise Acts of the different States concerned. It is only necessary to add that the definition of medicinal preparation" contained in S.2(g) of the Act, does not depart from the meaning of that expression when it occurs in item 84 of List I, and hence on the Act coming into force, the State lost the power to levy excise duty on thesehas been sworn by an Excise Inspector of the Excise and Intelligence Bureau of the State of Uttar Pradesh. It is not clear however from the counter affidavit what qualifications the deponent has to make such a statement; nor are we able to understand which laws of biochemistry are contravened by the mode of preparation prescribed in the three Ayurvedic text books already referred to. As against this, we may refer to the report of the Chopra Committee on indigenous Drugs of India. In para 265, the Committee says that in different parts of India, as many as 900 indigenous drugs (vegetable, mineral and metallic) and over 1000 preparations made from these drugs are used by the Ayurvedic physicians,seems to be little doubt that out of the large number of drugs used by the Hindu physicians for centuries past and still in use there are some that deserve the reputation they have earned aspara 266 the Committee point out the difficulties in the way of assessment of the proper value of indigenous drugs. These difficulties are of two kinds; firstly the modern scientists are not acquainted with the exact connotation of terms of Indian pharmacology, and secondly, whereas western medicine tries to explain the action of a drug in terms of its chemical components, such as alkaloids, glucosides, essential oils, antibiotics, hormones etc., Indian medicine takes into account the action of the drug in its entirety, as they hold that the action of the whole drug is often different from that of any one of its constituents considered separately. The Committee further says that there is a good deal of truth in this assertion. In para 268, dealing with compound preparations, the Committee mentions another difficulty that usually confronts pharmacologists in the problem of investigating the value of compound medicines which are more frequently used than single drugs. It further points out that "the investigation of the pharmacological properties and therapeutic value is considered to be more in the particular combination than that of any one of the drug taken separately." They therefore urge on the need for an investigation into the combination as a whole. But for this no modern methods are yetaverment in this connection on behalf of the respondents is also not categorical; for example, it has been stated on behalf of the Union of India that it is not admitted that these preparations are prepared according to the specifications by utilising the proper ingredients and are manufactured according to the recipe and direction given in the Ayurvedic text books referred to above. Nothing has been brought on the record to show that these preparations were analysed and the analysis showed that the ingredients mentioned in the Ayurvedic text books were not present in the preparations. Besides as it appears from the West Bengal Rules, (ref. West Bengal Excise Compilation, Pt. 2) which we have quoted above, these preparations are prepared in bond and these are various restrictions before the issue of the preparations by the manufacturer. Nothing has been said to show that these preparations are not in fact made in accordance with the direction contained in the Ayurvedic text books. If this was not so the excise staff would be there to check their preparation. As a mater of fact the first rule with respect to the manufacture of these preparations in the West Bengal Excise Compilation lays down that they will be prepared according to the recipe and direction in Arka Prakash, Ayurved Sangraha andand if that rule is being disobeyed we should have expectedto swear that though the rule says that the preparations should be made according to the directions in these text book they are in fact not so made. Further if the rule is being contravened, there must be power in the State Government to take action against those who contravene the rule. But nothing has been brought to our notice to show that any action had been taken. In these circumstances we are not prepared to hold that these preparations are not prepared according to the Ayurvedic text books; and in any case our decision holding these three preparations as medicinal preparations is based on the these preparations being made in accordance with the directions contained in the Ayurvedic text books and also in accordance with the Rules in the West Bengal Excise Compilation. We presume that the same must be the State of affairs in other States where these preparations are manufactured, though it appears that the petitioners in the present case are mostly from Calcutta and the manufacture in these case must be going on in Calcutta. | 1 | 6,246 | 2,632 | ### Instruction:
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appear that any action on the lines suggested by the Committee was taken by the Government of India. In these circumstances we have on the one side the three standard Ayurvedic text books according to which these preparations are prepared; we have also the affidavits of a large number of Ayurvedic practitioners of obvious repute to the effect that these preparations are medicinal preparations which are used to alleviate human suffering in certain conditions. On the other hand, there is no affidavit from an Ayurvedic expert on behalf of the respondents. We may, however in this connection refer to an affidavit of the Assistant Chemical Examiner to the Government of West Bengal who is experienced in examining and analysing alcoholic liquors. According to him, the chief basis of these three preparations is molasses and gur, which is a fact as we have already pointed out from the recipe in the Ayurvedic text books. He further says that in these three preparations there are several steam volatile products, namely, furfural, aldehydes, ketones and acids but the presence of the same does not destroy or minimise the effect of alcoholic intoxication of these preparations. He further says that the taste or smell of these preparations does not make them unfit for drinking in a large dose and they can be used as an alcoholic beverage. Even this affidavit does not say these are not medicinal preparations. All that it says is that these preparations contain about 42 per centum of alcohol and can be used as ordinary alcoholic beverages. So if these preparations are medicinal preparations but are also capable of being used as ordinary alcoholic beverage, they will fall under the Act and will be liable to duty under Item No. 1 of the Schedule at the rate of Rs. 17.50 nP. per gallon of the strength of London proof spirit.16. On a consideration of the material that has been placed before us, therefore, the only conclusion to which we can come is that these preparations are medicinal preparations according to the standard Ayurvedic text books referred to already though they are also capable of being used as ordinary alcoholic beverages. They will therefore clearly fall within the definition of "medicinal preparation" and would be liable to duty under Item 1 of the Schedule to the Act. So far as the decision of the Standing Committee is concerned which resulted in the omission of these three preparations from the list attached to the Rules, that is not conclusive on the question whether these are medicinal preparations or not. Further the fact that these preparations are omitted from the list attached to the Rules would make no difference to their being medicinal preparations within the meaning of the Act, liable to duty under Item 1 of the Schedule, if they are in fact medicinal preparations as we hold them to be. They will therefore be liable to duty under Item 1 of the Schedule to the Act as they undoubtedly fall under that item and are capable of being consumed as ordinary alcoholic beverages. They cannot however be taxed under the various Excise Acts in force in the concerned States in view of their being medicinal preparations which are governed by the Act.17. Lastly, it was urged on behalf of the respondents that these preparations are not prepared according to the formulae in the Ayurvedic text books referred to above. That is a question of fact which it is not possible for us to decide on the materials placed before us. The averment in this connection on behalf of the respondents is also not categorical; for example, it has been stated on behalf of the Union of India that it is not admitted that these preparations are prepared according to the specifications by utilising the proper ingredients and are manufactured according to the recipe and direction given in the Ayurvedic text books referred to above. Nothing has been brought on the record to show that these preparations were analysed and the analysis showed that the ingredients mentioned in the Ayurvedic text books were not present in the preparations. Besides as it appears from the West Bengal Rules, (ref. West Bengal Excise Compilation, Pt. 2) which we have quoted above, these preparations are prepared in bond and these are various restrictions before the issue of the preparations by the manufacturer. Nothing has been said to show that these preparations are not in fact made in accordance with the direction contained in the Ayurvedic text books. If this was not so the excise staff would be there to check their preparation. As a mater of fact the first rule with respect to the manufacture of these preparations in the West Bengal Excise Compilation lays down that they will be prepared according to the recipe and direction in Arka Prakash, Ayurved Sangraha and Bhaisajya-Ratnabali; and if that rule is being disobeyed we should have expected some-one to swear that though the rule says that the preparations should be made according to the directions in these text book they are in fact not so made. Further if the rule is being contravened, there must be power in the State Government to take action against those who contravene the rule. But nothing has been brought to our notice to show that any action had been taken. In these circumstances we are not prepared to hold that these preparations are not prepared according to the Ayurvedic text books; and in any case our decision holding these three preparations as medicinal preparations is based on the these preparations being made in accordance with the directions contained in the Ayurvedic text books and also in accordance with the Rules in the West Bengal Excise Compilation. We presume that the same must be the State of affairs in other States where these preparations are manufactured, though it appears that the petitioners in the present case are mostly from Calcutta and the manufacture in these case must be going on in Calcutta.18.
### Response:
1
### Explanation:
accept the affidavits filed on behalf of the petitioners from qualified Ayurvedic practitioners: series F to F 16. These Ayurvedic practitioners are not connected with the petitioners and what they say in their affidavits is in accordance with the use to which these preparations can be put as medicines according to the three Ayurvedic text books already referred to. In these circumstances it would in our opinion be impossible to say that these preparations are not remedies prepared for internal use of human beings and are not intended to be used for or in the treatment, mitigation or prevention of disease in human beings.If therefore they are a remedy preparaed for internal use of human being and are intended to be used for or in treatment, mitigation and prevention of disease in human beings, they would clearly be medicinal preparations within the meaning of S 2(g) of the Act; and if so, they would be liable to be taxed under the Schedule to the Act and not under the various Excise Acts of the different States concerned. It is only necessary to add that the definition of medicinal preparation" contained in S.2(g) of the Act, does not depart from the meaning of that expression when it occurs in item 84 of List I, and hence on the Act coming into force, the State lost the power to levy excise duty on thesehas been sworn by an Excise Inspector of the Excise and Intelligence Bureau of the State of Uttar Pradesh. It is not clear however from the counter affidavit what qualifications the deponent has to make such a statement; nor are we able to understand which laws of biochemistry are contravened by the mode of preparation prescribed in the three Ayurvedic text books already referred to. As against this, we may refer to the report of the Chopra Committee on indigenous Drugs of India. In para 265, the Committee says that in different parts of India, as many as 900 indigenous drugs (vegetable, mineral and metallic) and over 1000 preparations made from these drugs are used by the Ayurvedic physicians,seems to be little doubt that out of the large number of drugs used by the Hindu physicians for centuries past and still in use there are some that deserve the reputation they have earned aspara 266 the Committee point out the difficulties in the way of assessment of the proper value of indigenous drugs. These difficulties are of two kinds; firstly the modern scientists are not acquainted with the exact connotation of terms of Indian pharmacology, and secondly, whereas western medicine tries to explain the action of a drug in terms of its chemical components, such as alkaloids, glucosides, essential oils, antibiotics, hormones etc., Indian medicine takes into account the action of the drug in its entirety, as they hold that the action of the whole drug is often different from that of any one of its constituents considered separately. The Committee further says that there is a good deal of truth in this assertion. In para 268, dealing with compound preparations, the Committee mentions another difficulty that usually confronts pharmacologists in the problem of investigating the value of compound medicines which are more frequently used than single drugs. It further points out that "the investigation of the pharmacological properties and therapeutic value is considered to be more in the particular combination than that of any one of the drug taken separately." They therefore urge on the need for an investigation into the combination as a whole. But for this no modern methods are yetaverment in this connection on behalf of the respondents is also not categorical; for example, it has been stated on behalf of the Union of India that it is not admitted that these preparations are prepared according to the specifications by utilising the proper ingredients and are manufactured according to the recipe and direction given in the Ayurvedic text books referred to above. Nothing has been brought on the record to show that these preparations were analysed and the analysis showed that the ingredients mentioned in the Ayurvedic text books were not present in the preparations. Besides as it appears from the West Bengal Rules, (ref. West Bengal Excise Compilation, Pt. 2) which we have quoted above, these preparations are prepared in bond and these are various restrictions before the issue of the preparations by the manufacturer. Nothing has been said to show that these preparations are not in fact made in accordance with the direction contained in the Ayurvedic text books. If this was not so the excise staff would be there to check their preparation. As a mater of fact the first rule with respect to the manufacture of these preparations in the West Bengal Excise Compilation lays down that they will be prepared according to the recipe and direction in Arka Prakash, Ayurved Sangraha andand if that rule is being disobeyed we should have expectedto swear that though the rule says that the preparations should be made according to the directions in these text book they are in fact not so made. Further if the rule is being contravened, there must be power in the State Government to take action against those who contravene the rule. But nothing has been brought to our notice to show that any action had been taken. In these circumstances we are not prepared to hold that these preparations are not prepared according to the Ayurvedic text books; and in any case our decision holding these three preparations as medicinal preparations is based on the these preparations being made in accordance with the directions contained in the Ayurvedic text books and also in accordance with the Rules in the West Bengal Excise Compilation. We presume that the same must be the State of affairs in other States where these preparations are manufactured, though it appears that the petitioners in the present case are mostly from Calcutta and the manufacture in these case must be going on in Calcutta.
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Kotha Narasimham Amburi Kotaiah And Others Vs. State Of Andhra Pradesh And Others | Controller relating to the supply of rice. We are concerned in these writ petitions with similar control orders for the years 1964, 1965, 1966 and 1967. The provisions of the control orders for the subsequent years are similar to those of the Control Order 1964 referred to above. The effect of the control orders, therefore, is that the rice miller has to sell the rice only to the Government up to 1965 and thereafter certain percentage to the Food Corporation, a statutory body, or its agents and the balance to the persons as per the orders of the District Collector at such prices as fixed by the State Government under the control orders. Though the miller cannot sell to whomsoever he likes except to the State Government, Food Corporation or its agents at prices fixed by the control orders, he has a choice with regard to the mode of payment of the price and delivery to be effected in respect of these transactions. The contracting parties, i.e., the rice miller and the retail dealer are entitled to mutually agree amongst themselves in respect of the place, time and manner of the transport and delivery of the goods and the price payable under the contracts. The parties are no doubt compelled under the control orders to transact the sale of rice of definite quantity at a controlled price by definite parties but with a choice to have an agreement with regard to the mode, place and time of delivery of goods to be effected and the price payable. Though the agreement to purchase rice by the retailer and the sale by the miller are superimposed by the control orders, the transaction must, none the less, be held to be a sale as it is a contract entered into by the parties according to law but not vitiated by any fraud, misrepresentation or coercion. The consent of the parties to the agreement of sale of rice in the instant cases can by no stretch of reasoning be held to be void or voidable though they are obliged under the control orders to enter into such an agreement. Indisputably, the contract is for valid consideration and the actual tittle in the goods has passed from the miller to the retail dealer. The transaction, therefore, must, on the application of the principles referred to above, be held to be a complete and valid sale within the meaning of section 4 of the Sale of Goods Act and hence exigible to sales tax under the Andhra Pradesh General Sales Tax Act.There is another weighty reason to reject the contention of the petitioners-millers. The very control orders refereed to above disclose that the millers have charged the retailer dealers not only the price at the controlled rate but also included in their bills, the sales tax payable on those transactions. The retail dealers have in fact paid sales tax to the millers on the purchases made by them as they happened to be the first sales of rice within the State. The millers having collected from the retail dealers cannot now turn round and urge that the transactions are not sales exigible to sales tax as they have no choice in the transactions except to obey the orders of the Civil Supplies Department. The provisions of the control orders themselves have to be considered to arrive at a correct conclusion relating to the exact nature of the very transactions in question. One of the clauses in the control orders relating to the collection of sales tax must be taken to be a pointer or factor by which it can be held that the parties at the time of entering into the contract knew full well and in fact proceeded on the footing that the transaction in question was a sale exigible to sales tax under the Act. As the procuring agent are admittedly the first purchasers of paddy from the ryots and their case stands on the same footing as that of the rice millers, they must be held to be liable to pay sales tax on their first purchases of paddy within the State, just as the rice millers are liable to pay sales tax on their first sales of rice to the retail dealers within the State. 7. For these reasons, we answer question No. (1) in the affirmative and against the petitioners. In this view, it is unnecessary for us to decide the next question as the retail dealers would not be liable to pay sales tax on their sales of rice to the customers or the ration cardholders as the same would not be first sales within the State liable to tax under the provisions of the Act.The contention of Mr. S. Venkata Reddy for the appellants in Special Appeals Nos. 1 and 2 of 1969 that the Revenue Board, instead of remitting the matter to the assessing authority erred in disposing of the appeals without affording the assessees an opportunity cannot be given effect to. Firstly, the proceeding before the Revenue Board is different from that of the Sales Tax Appellate Tribunal. The Board also is entitled to take evidence if asked for by the assessee. The appellant has not availed of the opportunity of adducing evidence before the Revenue Board. Secondly, it appears the assessment had to be completed within four years from the date of the service of the original assessment order which relates to the assessment year 1964-65. In the circumstances, we are unable to agree with the learned counsel that the impugned orders are vitiated by any irregularity or error of jurisdiction justifying our interference in these special appeals. The submission of Sri T. Ramam that the Deputy Commissioner cannot revise an order which was the subject-matter of the appeal decide by the Sales Tax Appellate Tribunal cannot be entertained in T.R.C. No. 27 of 1969. The assessee is at liberty to raise this point before the concerned authority and have adjudication of his rights, if any. | 0[ds]The contracting parties are only forced by virtue of the statute or the control orders to transact business without any choice or option left to them in respect of any one of the essential ingredients or elements of sale. Such a transaction, in our considered opinion, must be termed an acquisition, but not a sale of goods. However, if any one or more of the essential ingredients or elements of sale is or are left to the choice or volition of the transacting parties such a transaction in spite of the supply of goods by one party to another being regulated or controlled in respect of other elements of sale by any statute or control orders, be held to be a sale exigible to sales tax. In other words, although the parries had to agree to transact business on account of the superimposition of the control orders in respect of some of the requisites of sale, the transaction must be found to be a sale but not an acquisition, if the contracting parties are at liberty to have their own choice to agree with regard to one or more ingredients of sale such as place, time and mode of delivery of goods or payment of price or any such similar factors. Unless and until the volition or choice of the contracting parties to mutually agree upon any one of the requisite elements of sale irrespective of such element being very material or minor, it cannot be said that the parties are left without any choice in respect of entering upon a mutual agreement. The heart of the matter is that there should be an agreement between the parties so as to make such a transaction a valid and complete sale. It does not matter whether such an agreement is on account of mutual free will or due to superimposition by a statute or control order6. We shall now turn to the fact of the present case and consider the principle question on the application of the aforesaid principles.In order to find out the nature of the transactions in question, it is relevant and material to look to the provisions of the Andhra Pradesh Paddy and Rice (Declaration and Requisition of Stocks) Order, 1964. As pointed out earlier, the procuring agents who purchase paddy from the agriculturists at controlled prices had to supply paddy to the rice millers at the prices fixed by the State Government. The rice millers after converting paddy into rice, had to declare the stocks of rice held by them, to the Civil Supplies authorities who pass orders directing them to supply rice at controlled prices to the wholesale or retail dealers. Clauses 4 and 5 of the Control Order provide for the requisitioning and disposal of stocks by the dealers from time to time. The price payable, quantity of rice to be supplied and the identity of the transferee have been determined as per the orders issued by the Civil Supplies Department. Clauses 6 and 7 of the Control Order provide for levy of penalties on ther if he fails to comply with the orders of the Controller relating to the supply of rice. We are concerned in these writ petitions with similar control orders for the years 1964, 1965, 1966 and 1967. The provisions of the control orders for the subsequent years are similar to those of the Control Order 1964 referred to above. The effect of the control orders, therefore, is that the rice miller has to sell the rice only to the Government up to 1965 and thereafter certain percentage to the Food Corporation, a statutory body, or its agents and the balance to the persons as per the orders of the District Collector at such prices as fixed by the State Government under the control orders. Though the miller cannot sell to whomsoever he likes except to the State Government, Food Corporation or its agents at prices fixed by the control orders, he has a choice with regard to the mode of payment of the price and delivery to be effected in respect of these transactions. The contracting parties, i.e., the rice miller and the retail dealer are entitled to mutually agree amongst themselves in respect of the place, time and manner of the transport and delivery of the goods and the price payable under the contracts. The parties are no doubt compelled under the control orders to transact the sale of rice of definite quantity at a controlled price by definite parties but with a choice to have an agreement with regard to the mode, place and time of delivery of goods to be effected and the price payable. Though the agreement to purchase rice by the retailer and the sale by the miller are superimposed by the control orders, the transaction must, none the less, be held to be a sale as it is a contract entered into by the parties according to law but not vitiated by any fraud, misrepresentation or coercion. The consent of the parties to the agreement of sale of rice in the instant cases can by no stretch of reasoning be held to be void or voidable though they are obliged under the control orders to enter into such an agreement. Indisputably, the contract is for valid consideration and the actual tittle in the goods has passed from the miller to the retail dealer. The transaction, therefore, must, on the application of the principles referred to above, be held to be a complete and valid sale within the meaning of section 4 of the Sale of Goods Act and hence exigible to sales tax under the Andhra Pradesh General Sales Tax Act.There is another weighty reason to reject the contention of the. The very control orders refereed to above disclose that the millers have charged the retailer dealers not only the price at the controlled rate but also included in their bills, the sales tax payable on those transactions. The retail dealers have in fact paid sales tax to the millers on the purchases made by them as they happened to be the first sales of rice within the State. The millers having collected from the retail dealers cannot now turn round and urge that the transactions are not sales exigible to sales tax as they have no choice in the transactions except to obey the orders of the Civil Supplies Department. The provisions of the control orders themselves have to be considered to arrive at a correct conclusion relating to the exact nature of the very transactions in question. One of the clauses in the control orders relating to the collection of sales tax must be taken to be a pointer or factor by which it can be held that the parties at the time of entering into the contract knew full well and in fact proceeded on the footing that the transaction in question was a sale exigible to sales tax under the ActAs the procuring agent are admittedly the first purchasers of paddy from the ryots and their case stands on the same footing as that of the rice millers, they must be held to be liable to pay sales tax on their first purchases of paddy within the State, just as the rice millers are liable to pay sales tax on their first sales of rice to the retail dealers within the State7. For these reasons, we answer question No. (1) in the affirmative and against the petitioners. In this view, it is unnecessary for us to decide the next question as the retail dealers would not be liable to pay sales tax on their sales of rice to the customers or the ration cardholders as the same would not be first sales within the State liable to tax under the provisions of the Act.The contention of Mr. S. Venkata Reddy for the appellants in Special Appeals Nos. 1 and 2 of 1969 that the Revenue Board, instead of remitting the matter to the assessing authority erred in disposing of the appeals without affording the assessees an opportunity cannot be given effect to. Firstly, the proceeding before the Revenue Board is different from that of the Sales Tax Appellate Tribunal. The Board also is entitled to take evidence if asked for by the assessee. The appellant has not availed of the opportunity of adducing evidence before the Revenue Board. Secondly, it appears the assessment had to be completed within four years from the date of the service of the original assessment order which relates to the assessment year. In the circumstances, we are unable to agree with the learned counsel that the impugned orders are vitiated by any irregularity or error of jurisdiction justifying our interference in these special appealsThe submission of Sri T. Ramam that the Deputy Commissioner cannot revise an order which was ther of the appeal decide by the Sales Tax Appellate Tribunalcannot be entertained in T.R.C. No. 27 of 1969. The assessee is at liberty to raise this point before the concerned authority and have adjudication of his rights, if any. | 0 | 4,145 | 1,614 | ### 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:
Controller relating to the supply of rice. We are concerned in these writ petitions with similar control orders for the years 1964, 1965, 1966 and 1967. The provisions of the control orders for the subsequent years are similar to those of the Control Order 1964 referred to above. The effect of the control orders, therefore, is that the rice miller has to sell the rice only to the Government up to 1965 and thereafter certain percentage to the Food Corporation, a statutory body, or its agents and the balance to the persons as per the orders of the District Collector at such prices as fixed by the State Government under the control orders. Though the miller cannot sell to whomsoever he likes except to the State Government, Food Corporation or its agents at prices fixed by the control orders, he has a choice with regard to the mode of payment of the price and delivery to be effected in respect of these transactions. The contracting parties, i.e., the rice miller and the retail dealer are entitled to mutually agree amongst themselves in respect of the place, time and manner of the transport and delivery of the goods and the price payable under the contracts. The parties are no doubt compelled under the control orders to transact the sale of rice of definite quantity at a controlled price by definite parties but with a choice to have an agreement with regard to the mode, place and time of delivery of goods to be effected and the price payable. Though the agreement to purchase rice by the retailer and the sale by the miller are superimposed by the control orders, the transaction must, none the less, be held to be a sale as it is a contract entered into by the parties according to law but not vitiated by any fraud, misrepresentation or coercion. The consent of the parties to the agreement of sale of rice in the instant cases can by no stretch of reasoning be held to be void or voidable though they are obliged under the control orders to enter into such an agreement. Indisputably, the contract is for valid consideration and the actual tittle in the goods has passed from the miller to the retail dealer. The transaction, therefore, must, on the application of the principles referred to above, be held to be a complete and valid sale within the meaning of section 4 of the Sale of Goods Act and hence exigible to sales tax under the Andhra Pradesh General Sales Tax Act.There is another weighty reason to reject the contention of the petitioners-millers. The very control orders refereed to above disclose that the millers have charged the retailer dealers not only the price at the controlled rate but also included in their bills, the sales tax payable on those transactions. The retail dealers have in fact paid sales tax to the millers on the purchases made by them as they happened to be the first sales of rice within the State. The millers having collected from the retail dealers cannot now turn round and urge that the transactions are not sales exigible to sales tax as they have no choice in the transactions except to obey the orders of the Civil Supplies Department. The provisions of the control orders themselves have to be considered to arrive at a correct conclusion relating to the exact nature of the very transactions in question. One of the clauses in the control orders relating to the collection of sales tax must be taken to be a pointer or factor by which it can be held that the parties at the time of entering into the contract knew full well and in fact proceeded on the footing that the transaction in question was a sale exigible to sales tax under the Act. As the procuring agent are admittedly the first purchasers of paddy from the ryots and their case stands on the same footing as that of the rice millers, they must be held to be liable to pay sales tax on their first purchases of paddy within the State, just as the rice millers are liable to pay sales tax on their first sales of rice to the retail dealers within the State. 7. For these reasons, we answer question No. (1) in the affirmative and against the petitioners. In this view, it is unnecessary for us to decide the next question as the retail dealers would not be liable to pay sales tax on their sales of rice to the customers or the ration cardholders as the same would not be first sales within the State liable to tax under the provisions of the Act.The contention of Mr. S. Venkata Reddy for the appellants in Special Appeals Nos. 1 and 2 of 1969 that the Revenue Board, instead of remitting the matter to the assessing authority erred in disposing of the appeals without affording the assessees an opportunity cannot be given effect to. Firstly, the proceeding before the Revenue Board is different from that of the Sales Tax Appellate Tribunal. The Board also is entitled to take evidence if asked for by the assessee. The appellant has not availed of the opportunity of adducing evidence before the Revenue Board. Secondly, it appears the assessment had to be completed within four years from the date of the service of the original assessment order which relates to the assessment year 1964-65. In the circumstances, we are unable to agree with the learned counsel that the impugned orders are vitiated by any irregularity or error of jurisdiction justifying our interference in these special appeals. The submission of Sri T. Ramam that the Deputy Commissioner cannot revise an order which was the subject-matter of the appeal decide by the Sales Tax Appellate Tribunal cannot be entertained in T.R.C. No. 27 of 1969. The assessee is at liberty to raise this point before the concerned authority and have adjudication of his rights, if any.
### Response:
0
### Explanation:
to comply with the orders of the Controller relating to the supply of rice. We are concerned in these writ petitions with similar control orders for the years 1964, 1965, 1966 and 1967. The provisions of the control orders for the subsequent years are similar to those of the Control Order 1964 referred to above. The effect of the control orders, therefore, is that the rice miller has to sell the rice only to the Government up to 1965 and thereafter certain percentage to the Food Corporation, a statutory body, or its agents and the balance to the persons as per the orders of the District Collector at such prices as fixed by the State Government under the control orders. Though the miller cannot sell to whomsoever he likes except to the State Government, Food Corporation or its agents at prices fixed by the control orders, he has a choice with regard to the mode of payment of the price and delivery to be effected in respect of these transactions. The contracting parties, i.e., the rice miller and the retail dealer are entitled to mutually agree amongst themselves in respect of the place, time and manner of the transport and delivery of the goods and the price payable under the contracts. The parties are no doubt compelled under the control orders to transact the sale of rice of definite quantity at a controlled price by definite parties but with a choice to have an agreement with regard to the mode, place and time of delivery of goods to be effected and the price payable. Though the agreement to purchase rice by the retailer and the sale by the miller are superimposed by the control orders, the transaction must, none the less, be held to be a sale as it is a contract entered into by the parties according to law but not vitiated by any fraud, misrepresentation or coercion. The consent of the parties to the agreement of sale of rice in the instant cases can by no stretch of reasoning be held to be void or voidable though they are obliged under the control orders to enter into such an agreement. Indisputably, the contract is for valid consideration and the actual tittle in the goods has passed from the miller to the retail dealer. The transaction, therefore, must, on the application of the principles referred to above, be held to be a complete and valid sale within the meaning of section 4 of the Sale of Goods Act and hence exigible to sales tax under the Andhra Pradesh General Sales Tax Act.There is another weighty reason to reject the contention of the. The very control orders refereed to above disclose that the millers have charged the retailer dealers not only the price at the controlled rate but also included in their bills, the sales tax payable on those transactions. The retail dealers have in fact paid sales tax to the millers on the purchases made by them as they happened to be the first sales of rice within the State. The millers having collected from the retail dealers cannot now turn round and urge that the transactions are not sales exigible to sales tax as they have no choice in the transactions except to obey the orders of the Civil Supplies Department. The provisions of the control orders themselves have to be considered to arrive at a correct conclusion relating to the exact nature of the very transactions in question. One of the clauses in the control orders relating to the collection of sales tax must be taken to be a pointer or factor by which it can be held that the parties at the time of entering into the contract knew full well and in fact proceeded on the footing that the transaction in question was a sale exigible to sales tax under the ActAs the procuring agent are admittedly the first purchasers of paddy from the ryots and their case stands on the same footing as that of the rice millers, they must be held to be liable to pay sales tax on their first purchases of paddy within the State, just as the rice millers are liable to pay sales tax on their first sales of rice to the retail dealers within the State7. For these reasons, we answer question No. (1) in the affirmative and against the petitioners. In this view, it is unnecessary for us to decide the next question as the retail dealers would not be liable to pay sales tax on their sales of rice to the customers or the ration cardholders as the same would not be first sales within the State liable to tax under the provisions of the Act.The contention of Mr. S. Venkata Reddy for the appellants in Special Appeals Nos. 1 and 2 of 1969 that the Revenue Board, instead of remitting the matter to the assessing authority erred in disposing of the appeals without affording the assessees an opportunity cannot be given effect to. Firstly, the proceeding before the Revenue Board is different from that of the Sales Tax Appellate Tribunal. The Board also is entitled to take evidence if asked for by the assessee. The appellant has not availed of the opportunity of adducing evidence before the Revenue Board. Secondly, it appears the assessment had to be completed within four years from the date of the service of the original assessment order which relates to the assessment year. In the circumstances, we are unable to agree with the learned counsel that the impugned orders are vitiated by any irregularity or error of jurisdiction justifying our interference in these special appealsThe submission of Sri T. Ramam that the Deputy Commissioner cannot revise an order which was ther of the appeal decide by the Sales Tax Appellate Tribunalcannot be entertained in T.R.C. No. 27 of 1969. The assessee is at liberty to raise this point before the concerned authority and have adjudication of his rights, if any.
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Ishwardas Vs. Maharashtra Revenue Tribunal & Ors | for possession of the land, under Section 36 (1) of the Act.11. The claim of the Managing Trustee, in this case, is that he intends to cultivate personally, the lands in question The objection, raised by the fourth respondent, to the appellants claim was that the properties belonged to the Trust, and a Trust could not cultivate personally lands. It was further urged that if the Managing Trustee cultivated the lands of the Trust, he could not be considered to cultivate on ones own account as any cultivation, by the Managing Trustee, of Trust lands must necessarily be on account of the Trust, therefore, Section 2 (12) will not be satisfied. This objection found favour with respondents 1 and 2. The High Court also appears to agree with their views as is evident from the fact, that it dismissed the writ petition of the appellant, summarily.12. To consider the soundness of the objection, raised by the tenant. it is necessary to refer, in law, to the position of a Trustee vis-a-vis Trust properties Under Section 2 (18), of the Bombay Public Trusts Act, a Trustee has been defined, as meaning a person in whom, either alone or in association with other persons the trust property is vested, and includes a Manager. In view of this definition it is clear that, in this case, the properties of the Trust vest in the Managing Trustee, Pandit Ishwardas, and he is the landlord, under Clause (32) of Section 2.No doubt, as Trustee, he will have to administer the properties, for the purpose of carrying out the objects of the Trust; but, as the properties vest in him and he is a landlord, he can ask for a surrender, from the tenant, of the lands of the Trust to cultivate personally He can cultivate the lands, either by his own labour, or under the personal supervision of himself, by hired labour, or by servants on wages payable in cash or kind as contemplated under sub-clause (i) or (iii) of Clause (12) of Section 2 As the properties vest in him, in law, cultivation, by him, as indicated above is to be considered on ones own account. Thus the requirements of Section 38 (1), read with Section 2 (12) are amply satisfied in this case.It follows that the application, filed by the appellant, was maintainable, and the order of the third respondent, accepting the appellants claim, is correct.13. In our opinion, the decision of the Bombay High Court, in Buvashebs case, 1960 Nag LJ 219, relied on by the Maharashtra Revenue Tribunal, for disallowing the claim of the appellant, has no application, to the case on hand. The question that arose for consideration, in that decision, was as to whether a Wahiwatdar, or Manager, of lands belonging to a Deity, was entitled to apply, under Section 34, read with Section 2 (6), of Bombay Act LXVII of 1948, for surrender of lands from the tenant, for personal cultivation. The High Court held that there was a distinction, between a Trustee, in whom the properties of the trust vest in law, and a Manager or a Shebait of the properties, which vest in an idol, which is the legal owner. On this basis, the learned Judges have held that, inasmuch as the legal ownership of the property, in the case before them, vested in the idol, and as the Manager or Wahiwatdar of such property, was no more than an administrator of the property, managing that proparty, for and on behalf of the idol, he was not a landlord and hence could not apply, for surrender of lands from a tenant on the ground of personal cultivation. It is their further view that it is only the person, in whom the legal ownership of the lands vast, who can be regarded as the landlord, and who alone can apply, on the ground that he requires the land, bona fide, for personal cultivation. The expressions to cultivate personally, tenant and landlord, which the learned Judges had to consider in Bombay Act IXVII of 1948, are stantially similar to the definitions contained in the Act.14. We may also refer to a later decision of the Bombay High Court in Kesheoraj Deo Sansthan, Karanja Bapurao, 1964 Mah LJ 589. In the decision, the learned Judges had to consider the identical provisions of the Act. The claim, for personal cultivation, in that case, was made by the Manager of a private Sansthan. The learned Judges held that Sansthan is a juristic person, in whom the properties vest. They further held that cultivation, though a agency, like a Manager, on behalf of juristic person, did not come within the ambit of the definition to cultivate personally, in Section 2(12) of the Act. They also held that an idol or a juridical person, like the Sansthan, was not capable of cultivating personally, an hence the tenancy of a tenancy of land, owned by a Deity or Sansthan, could not be terminated, under Section 88 of the Act.15. We do not propose to express any opinion, as to whether a Manager or Shebait, of the properties of an idol, or the Manager of a Sansthan, can or cannot apply, for surrender, by a tenant, of lands for personal cultivation. It is enough to point out that the learned Judges of the Bombay High Court, in both the decisions, cited above, have indicated that a Trustee, in whom the properties vest in law, stands on a different footing from a Shebait or a Wahiwatdar, or Manager. This distinction, pointed out by the learned Judges of the Bombay High Court, has not been properly appreciated, by the Revenue Tribunal, in the present case.16. To conclude, the appellant, the Managing Trustee, is a person, in whom the legal ownership of the property is vested and, as such, he was entitled to apply for surrender, by the tenant, of the lands in question to cu1tivate personally, under Section 38, read with Section 2 (12) of the Act.17. | 1[ds]In our opinion, the decision of the Bombay High Court, in Buvashebs case, 1960 Nag LJ 219, relied on by the Maharashtra Revenue Tribunal, for disallowing the claim of the appellant, has no application, to the case on hand. The question that arose for consideration, in that decision, was as to whether a Wahiwatdar, or Manager, of lands belonging to a Deity, was entitled to apply, under Section 34, read with Section 2 (6), of Bombay Act LXVII of 1948, for surrender of lands from the tenant, for personal cultivation. The High Court held that there was a distinction, between a Trustee, in whom the properties of the trust vest in law, and a Manager or a Shebait of the properties, which vest in an idol, which is the legal owner. On this basis, the learned Judges have held that, inasmuch as the legal ownership of the property, in the case before them, vested in the idol, and as the Manager or Wahiwatdar of such property, was no more than an administrator of the property, managing that proparty, for and on behalf of the idol, he was not a landlord and hence could not apply, for surrender of lands from a tenant on the ground of personal cultivation. It is their further view that it is only the person, in whom the legal ownership of the lands vast, who can be regarded as the landlord, and who alone can apply, on the ground that he requires the land, bona fide, for personal cultivation. The expressions to cultivate personally, tenant and landlord, which the learned Judges had to consider in Bombay Act IXVII of 1948, are stantially similar to the definitions contained in the Act.We may also refer to a later decision of the Bombay High Court in Kesheoraj Deo Sansthan, Karanja Bapurao, 1964 Mah LJ 589. In the decision, the learned Judges had to consider the identical provisions of the Act. The claim, for personal cultivation, in that case, was made by the Manager of a private Sansthan. The learned Judges held that Sansthan is a juristic person, in whom the properties vest. They further held that cultivation, though a agency, like a Manager, on behalf of juristic person, did not come within the ambit of the definition to cultivate personally, in Section 2(12) of the Act. They also held that an idol or a juridical person, like the Sansthan, was not capable of cultivating personally, an hence the tenancy of a tenancy of land, owned by a Deity or Sansthan, could not be terminated, under Section 88 of the Act.We do not propose to express any opinion, as to whether a Manager or Shebait, of the properties of an idol, or the Manager of a Sansthan, can or cannot apply, for surrender, by a tenant, of lands for personal cultivation. It is enough to point out that the learned Judges of the Bombay High Court, in both the decisions, cited above, have indicated that a Trustee, in whom the properties vest in law, stands on a different footing from a Shebait or a Wahiwatdar, or Manager. This distinction, pointed out by the learned Judges of the Bombay High Court, has not been properly appreciated, by the Revenue Tribunal, in the present case.To conclude, the appellant, the Managing Trustee, is a person, in whom the legal ownership of the property is vested and, as such, he was entitled to apply for surrender, by the tenant, of the lands in question to cu1tivate personally, under Section 38, read with Section 2 (12) of the Act. | 1 | 2,455 | 705 | ### 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:
for possession of the land, under Section 36 (1) of the Act.11. The claim of the Managing Trustee, in this case, is that he intends to cultivate personally, the lands in question The objection, raised by the fourth respondent, to the appellants claim was that the properties belonged to the Trust, and a Trust could not cultivate personally lands. It was further urged that if the Managing Trustee cultivated the lands of the Trust, he could not be considered to cultivate on ones own account as any cultivation, by the Managing Trustee, of Trust lands must necessarily be on account of the Trust, therefore, Section 2 (12) will not be satisfied. This objection found favour with respondents 1 and 2. The High Court also appears to agree with their views as is evident from the fact, that it dismissed the writ petition of the appellant, summarily.12. To consider the soundness of the objection, raised by the tenant. it is necessary to refer, in law, to the position of a Trustee vis-a-vis Trust properties Under Section 2 (18), of the Bombay Public Trusts Act, a Trustee has been defined, as meaning a person in whom, either alone or in association with other persons the trust property is vested, and includes a Manager. In view of this definition it is clear that, in this case, the properties of the Trust vest in the Managing Trustee, Pandit Ishwardas, and he is the landlord, under Clause (32) of Section 2.No doubt, as Trustee, he will have to administer the properties, for the purpose of carrying out the objects of the Trust; but, as the properties vest in him and he is a landlord, he can ask for a surrender, from the tenant, of the lands of the Trust to cultivate personally He can cultivate the lands, either by his own labour, or under the personal supervision of himself, by hired labour, or by servants on wages payable in cash or kind as contemplated under sub-clause (i) or (iii) of Clause (12) of Section 2 As the properties vest in him, in law, cultivation, by him, as indicated above is to be considered on ones own account. Thus the requirements of Section 38 (1), read with Section 2 (12) are amply satisfied in this case.It follows that the application, filed by the appellant, was maintainable, and the order of the third respondent, accepting the appellants claim, is correct.13. In our opinion, the decision of the Bombay High Court, in Buvashebs case, 1960 Nag LJ 219, relied on by the Maharashtra Revenue Tribunal, for disallowing the claim of the appellant, has no application, to the case on hand. The question that arose for consideration, in that decision, was as to whether a Wahiwatdar, or Manager, of lands belonging to a Deity, was entitled to apply, under Section 34, read with Section 2 (6), of Bombay Act LXVII of 1948, for surrender of lands from the tenant, for personal cultivation. The High Court held that there was a distinction, between a Trustee, in whom the properties of the trust vest in law, and a Manager or a Shebait of the properties, which vest in an idol, which is the legal owner. On this basis, the learned Judges have held that, inasmuch as the legal ownership of the property, in the case before them, vested in the idol, and as the Manager or Wahiwatdar of such property, was no more than an administrator of the property, managing that proparty, for and on behalf of the idol, he was not a landlord and hence could not apply, for surrender of lands from a tenant on the ground of personal cultivation. It is their further view that it is only the person, in whom the legal ownership of the lands vast, who can be regarded as the landlord, and who alone can apply, on the ground that he requires the land, bona fide, for personal cultivation. The expressions to cultivate personally, tenant and landlord, which the learned Judges had to consider in Bombay Act IXVII of 1948, are stantially similar to the definitions contained in the Act.14. We may also refer to a later decision of the Bombay High Court in Kesheoraj Deo Sansthan, Karanja Bapurao, 1964 Mah LJ 589. In the decision, the learned Judges had to consider the identical provisions of the Act. The claim, for personal cultivation, in that case, was made by the Manager of a private Sansthan. The learned Judges held that Sansthan is a juristic person, in whom the properties vest. They further held that cultivation, though a agency, like a Manager, on behalf of juristic person, did not come within the ambit of the definition to cultivate personally, in Section 2(12) of the Act. They also held that an idol or a juridical person, like the Sansthan, was not capable of cultivating personally, an hence the tenancy of a tenancy of land, owned by a Deity or Sansthan, could not be terminated, under Section 88 of the Act.15. We do not propose to express any opinion, as to whether a Manager or Shebait, of the properties of an idol, or the Manager of a Sansthan, can or cannot apply, for surrender, by a tenant, of lands for personal cultivation. It is enough to point out that the learned Judges of the Bombay High Court, in both the decisions, cited above, have indicated that a Trustee, in whom the properties vest in law, stands on a different footing from a Shebait or a Wahiwatdar, or Manager. This distinction, pointed out by the learned Judges of the Bombay High Court, has not been properly appreciated, by the Revenue Tribunal, in the present case.16. To conclude, the appellant, the Managing Trustee, is a person, in whom the legal ownership of the property is vested and, as such, he was entitled to apply for surrender, by the tenant, of the lands in question to cu1tivate personally, under Section 38, read with Section 2 (12) of the Act.17.
### Response:
1
### Explanation:
In our opinion, the decision of the Bombay High Court, in Buvashebs case, 1960 Nag LJ 219, relied on by the Maharashtra Revenue Tribunal, for disallowing the claim of the appellant, has no application, to the case on hand. The question that arose for consideration, in that decision, was as to whether a Wahiwatdar, or Manager, of lands belonging to a Deity, was entitled to apply, under Section 34, read with Section 2 (6), of Bombay Act LXVII of 1948, for surrender of lands from the tenant, for personal cultivation. The High Court held that there was a distinction, between a Trustee, in whom the properties of the trust vest in law, and a Manager or a Shebait of the properties, which vest in an idol, which is the legal owner. On this basis, the learned Judges have held that, inasmuch as the legal ownership of the property, in the case before them, vested in the idol, and as the Manager or Wahiwatdar of such property, was no more than an administrator of the property, managing that proparty, for and on behalf of the idol, he was not a landlord and hence could not apply, for surrender of lands from a tenant on the ground of personal cultivation. It is their further view that it is only the person, in whom the legal ownership of the lands vast, who can be regarded as the landlord, and who alone can apply, on the ground that he requires the land, bona fide, for personal cultivation. The expressions to cultivate personally, tenant and landlord, which the learned Judges had to consider in Bombay Act IXVII of 1948, are stantially similar to the definitions contained in the Act.We may also refer to a later decision of the Bombay High Court in Kesheoraj Deo Sansthan, Karanja Bapurao, 1964 Mah LJ 589. In the decision, the learned Judges had to consider the identical provisions of the Act. The claim, for personal cultivation, in that case, was made by the Manager of a private Sansthan. The learned Judges held that Sansthan is a juristic person, in whom the properties vest. They further held that cultivation, though a agency, like a Manager, on behalf of juristic person, did not come within the ambit of the definition to cultivate personally, in Section 2(12) of the Act. They also held that an idol or a juridical person, like the Sansthan, was not capable of cultivating personally, an hence the tenancy of a tenancy of land, owned by a Deity or Sansthan, could not be terminated, under Section 88 of the Act.We do not propose to express any opinion, as to whether a Manager or Shebait, of the properties of an idol, or the Manager of a Sansthan, can or cannot apply, for surrender, by a tenant, of lands for personal cultivation. It is enough to point out that the learned Judges of the Bombay High Court, in both the decisions, cited above, have indicated that a Trustee, in whom the properties vest in law, stands on a different footing from a Shebait or a Wahiwatdar, or Manager. This distinction, pointed out by the learned Judges of the Bombay High Court, has not been properly appreciated, by the Revenue Tribunal, in the present case.To conclude, the appellant, the Managing Trustee, is a person, in whom the legal ownership of the property is vested and, as such, he was entitled to apply for surrender, by the tenant, of the lands in question to cu1tivate personally, under Section 38, read with Section 2 (12) of the Act.
|
COMMISSIONER OF CENTRAL EXCISE, NEW DELHI Vs. M/S. ACORN ENGG. LIMITED | 1. This Appeal is filed against the Judgment of the Customs, Excise and Gold (Control) Appellate Tribunal (in short CEGAT), New Delhi dated 7th January, 1999. 2. The Respondents were availing benefit of Notification No. 120/75-CE dated 30th April, 1975. The Department issued a show cause notice on the ground that their sales were to M/s. Fenner (India) Limited. It was claimed that as M/s. Fenner (India) Limited was the holding company of the Respondents, condition (iv) of the Notification had not been fulfilled. Condition (iv) reads as follows :- (iv) the invoice price is not influenced by any commercial, financial or other relationship whether by contract or otherwise between the manufacturer or any person associated in business with the manufacturer and the buyer or any person associated in business with the buyer other than the relationship, created by sale of the aforesaid goods; 3. In the adjudicating Order, benefit of the Notification was sought to be denied only on the basis that M/s. Fenner (India) Limited, as the holding company, was a related person and consequently the invoice price was influenced. 4. The Tribunal has, by the impugned Judgment, held that there is no evidence to show that the invoice price had been influenced by any commercial or financial consideration or by reason of the relationship. It is held that the burden was on the Department and in the absence of any such proof, the benefit of the Notification cannot be denied. 5. We have read the Order of the adjudicating authority and also perused the available material. We find that the Department has made no effort to ascertain whether the invoice price had been influenced by any commercial, financial consideration or by the reasons of the relationship. They have only proceeded on the basis that M/s. Fenner (India) Limited being a related person the invoice price was influenced. We also find the submissions made on behalf of the Respondents that they were also selling to other parties at the same price has not been rebutted by the Department. It is clear that merely beause M/s. Fenner (India) Limited is the holding company and a related person, does not by itself show that the invoice price is influenced. In the absence of any proof or material to show that the invoice price was influenced the benefit of the Notification cannot be denied. | 0[ds]5. We have read the Order of the adjudicating authority and also perused the available material. We find that the Department has made no effort to ascertain whether the invoice price had been influenced by any commercial, financial consideration or by the reasons of the relationship. They have only proceeded on the basis that M/s. Fenner (India) Limited being a related person the invoice price was influenced. We also find the submissions made on behalf of the Respondents that they were also selling to other parties at the same price has not been rebutted by the Department. It is clear that merely beause M/s. Fenner (India) Limited is the holding company and a related person, does not by itself show that the invoice price is influenced. In the absence of any proof or material to show that the invoice price was influenced the benefit of the Notification cannot be denied. | 0 | 456 | 170 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
1. This Appeal is filed against the Judgment of the Customs, Excise and Gold (Control) Appellate Tribunal (in short CEGAT), New Delhi dated 7th January, 1999. 2. The Respondents were availing benefit of Notification No. 120/75-CE dated 30th April, 1975. The Department issued a show cause notice on the ground that their sales were to M/s. Fenner (India) Limited. It was claimed that as M/s. Fenner (India) Limited was the holding company of the Respondents, condition (iv) of the Notification had not been fulfilled. Condition (iv) reads as follows :- (iv) the invoice price is not influenced by any commercial, financial or other relationship whether by contract or otherwise between the manufacturer or any person associated in business with the manufacturer and the buyer or any person associated in business with the buyer other than the relationship, created by sale of the aforesaid goods; 3. In the adjudicating Order, benefit of the Notification was sought to be denied only on the basis that M/s. Fenner (India) Limited, as the holding company, was a related person and consequently the invoice price was influenced. 4. The Tribunal has, by the impugned Judgment, held that there is no evidence to show that the invoice price had been influenced by any commercial or financial consideration or by reason of the relationship. It is held that the burden was on the Department and in the absence of any such proof, the benefit of the Notification cannot be denied. 5. We have read the Order of the adjudicating authority and also perused the available material. We find that the Department has made no effort to ascertain whether the invoice price had been influenced by any commercial, financial consideration or by the reasons of the relationship. They have only proceeded on the basis that M/s. Fenner (India) Limited being a related person the invoice price was influenced. We also find the submissions made on behalf of the Respondents that they were also selling to other parties at the same price has not been rebutted by the Department. It is clear that merely beause M/s. Fenner (India) Limited is the holding company and a related person, does not by itself show that the invoice price is influenced. In the absence of any proof or material to show that the invoice price was influenced the benefit of the Notification cannot be denied.
### Response:
0
### Explanation:
5. We have read the Order of the adjudicating authority and also perused the available material. We find that the Department has made no effort to ascertain whether the invoice price had been influenced by any commercial, financial consideration or by the reasons of the relationship. They have only proceeded on the basis that M/s. Fenner (India) Limited being a related person the invoice price was influenced. We also find the submissions made on behalf of the Respondents that they were also selling to other parties at the same price has not been rebutted by the Department. It is clear that merely beause M/s. Fenner (India) Limited is the holding company and a related person, does not by itself show that the invoice price is influenced. In the absence of any proof or material to show that the invoice price was influenced the benefit of the Notification cannot be denied.
|
Nanhoo Mal & Ors Vs. Hira Mal & Ors | is clear that there is another side of the question to be considered, namely, the inconvenience to the public administration of having elections and the business of local boards held up while individuals prosecute their individual grievances. We understand the election for the elective seats in this Union has been held up since May 31 because of this petition, the result being that the electors having been unable since then to have any representation on the Board, and the Board is functioning, if indeed it is functioning, with a mere nominated fraction of its total strength; and this state of affairs the petitioner proposes to have continued until his own personal grievance is satisfied.These observations were quoted with approval by this Court in Ponnuswamis case (supra). In that decision this Court arrived at the following conclusions :(1) Having regard to the important functions which the legislatures have to perform in democratic countries, it has always been recognised to be a matter of first importance that elections should be concluded as early as possible according to time schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over, so that the election proceedings may not be unduly retarded or protracted.(2) In conformity with this principle, the scheme of the election law in this country as well as in England is that no significance should be attached to anything which does not affect the "election"; and if any irregularities are committed while it is in progress and they belong to the category or class which, under the law by which elections are governed would have the effect of vitiating the "election" and enable the person affected to call it in question, they should be brought up before a special tribunal by means of an election petition and not be made the subject of a dispute before any court while the election is in progress.In absence of any express provisions in the Act to the contrary these principles are applicable equally to cases of elections to local bodies also. This Court also pointed out that the right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it. It referred to the decision in Wolverhampton New Waterworks Co. v. Hawkesford ((1859) 6 CBNS 336 : 28 LJCP 242 : 141 486) where it had been held :There are three classes of case in which a liability may be established founded upon statute. One is, where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law; there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form of remedy : there, the party can only proceed by action at common law. But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it . . . . The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to,and after referring to the provisions of the Representation of the People Act pointed out that it will be a fair inference that the Act provides for only one remedy, that remedy being by an election petition to be presented after the election is over, and there is no remedy provided at any intermediate stage. This Court also held that the word election connotes the entire procedure to be gone through to return a candidate whenever we talk of elections in a democratic country.5. It follows that the right to vote or stand for election to the office of the President of the Municipal Board is a creature of the statute, that is, the U.P. Municipalities Act and it must be subject to the limitations imposed by it. Therefore, the election to the office of the President could be challenged only according to the procedure prescribed by that Act and that is by means of an election petition presented in accordance with the provisions of the Act and in no other way. The Act provides only for one remedy, that remedy being an election petition to be presented after the election is over and there is no remedy provided at any intermediate stage. These conclusions follow from the decision of this Court in Ponnuswamis case (supra) in its application to the facts of this case. But the conclusions above stated were arrived at without taking the provisions of Article 329 into account. The provisions of Article 329 are relevant only to the extent that even the remedy under Article 226 of the Constitution is barred as a result of the provisions. But once the legal effect above set forth of the provision of law which we are concerned with is taken into account there is no room for the High Courts to interfere in exercise of their powers under Article 226 of the Constitution. Whether there can be any extraordinary circumstances in which the High Courts could exercise their power under Article 226 in relation to elections it is not now necessary to consider. All the considerations applied in coming to the conclusion that elections to the legislatures should not be delayed or protracted by the interference of courts at any intermediate stage before the results of the election are over apply with equal force to elections to local bodies. | 1[ds]3. We are of the opinion that the whole approach of the learned Judges of the High Court to this problem wasthe only way by which the election of a President can be called in question is by means of an election petition presented in accordance with the provisions of this Act. The election itself can be questioned only on one of the three grounds mentioned above. The only ground in the present case on the basis of which the election of the appellant was questioned is that there was a non-compliance with the provisions of Rule 6, already referred to. Under the Act the non-compliance with any rule or order made under the Act or any provisions of the Act does not ipso facto result in the election being set aside. That result can be set aside only if the Election Tribunal comes to the conclusion that the result of the election has been materially affected by such non-compliance. The jurisdiction to decide the validity of the election of a President is an exclusive one conferred on the District Judge. In the circumstances there was no room for the High Court exercising its powers under Article 226 in order to set aside the election. In setting aside the election the High Court plainly erred because it did not consider whether the result of the election had been materially affected by non-compliance compliance with the rule in question. In any case that is a matter within the exclusive jurisdiction of the District Judge.It follows that the right to vote or stand for election to the office of the President of the Municipal Board is a creature of the statute, that is, the U.P. Municipalities Act and it must be subject to the limitations imposed by it. Therefore, the election to the office of the President could be challenged only according to the procedure prescribed by that Act and that is by means of an election petition presented in accordance with the provisions of the Act and in no other way. The Act provides only for one remedy, that remedy being an election petition to be presented after the election is over and there is no remedy provided at any intermediate stage. These conclusions follow from the decision of this Court in Ponnuswamis case (supra) in its application to the facts of this case. But the conclusions above stated were arrived at without taking the provisions of Article 329 into account. The provisions of Article 329 are relevant only to the extent that even the remedy under Article 226 of the Constitution is barred as a result of the provisions. But once the legal effect above set forth of the provision of law which we are concerned with is taken into account there is no room for the High Courts to interfere in exercise of their powers under Article 226 of the Constitution. Whether there can be any extraordinary circumstances in which the High Courts could exercise their power under Article 226 in relation to elections it is not now necessary to consider. All the considerations applied in coming to the conclusion that elections to the legislatures should not be delayed or protracted by the interference of courts at any intermediate stage before the results of the election are over apply with equal force to elections to local bodies. | 1 | 2,337 | 588 | ### 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:
is clear that there is another side of the question to be considered, namely, the inconvenience to the public administration of having elections and the business of local boards held up while individuals prosecute their individual grievances. We understand the election for the elective seats in this Union has been held up since May 31 because of this petition, the result being that the electors having been unable since then to have any representation on the Board, and the Board is functioning, if indeed it is functioning, with a mere nominated fraction of its total strength; and this state of affairs the petitioner proposes to have continued until his own personal grievance is satisfied.These observations were quoted with approval by this Court in Ponnuswamis case (supra). In that decision this Court arrived at the following conclusions :(1) Having regard to the important functions which the legislatures have to perform in democratic countries, it has always been recognised to be a matter of first importance that elections should be concluded as early as possible according to time schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over, so that the election proceedings may not be unduly retarded or protracted.(2) In conformity with this principle, the scheme of the election law in this country as well as in England is that no significance should be attached to anything which does not affect the "election"; and if any irregularities are committed while it is in progress and they belong to the category or class which, under the law by which elections are governed would have the effect of vitiating the "election" and enable the person affected to call it in question, they should be brought up before a special tribunal by means of an election petition and not be made the subject of a dispute before any court while the election is in progress.In absence of any express provisions in the Act to the contrary these principles are applicable equally to cases of elections to local bodies also. This Court also pointed out that the right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it. It referred to the decision in Wolverhampton New Waterworks Co. v. Hawkesford ((1859) 6 CBNS 336 : 28 LJCP 242 : 141 486) where it had been held :There are three classes of case in which a liability may be established founded upon statute. One is, where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law; there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form of remedy : there, the party can only proceed by action at common law. But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it . . . . The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to,and after referring to the provisions of the Representation of the People Act pointed out that it will be a fair inference that the Act provides for only one remedy, that remedy being by an election petition to be presented after the election is over, and there is no remedy provided at any intermediate stage. This Court also held that the word election connotes the entire procedure to be gone through to return a candidate whenever we talk of elections in a democratic country.5. It follows that the right to vote or stand for election to the office of the President of the Municipal Board is a creature of the statute, that is, the U.P. Municipalities Act and it must be subject to the limitations imposed by it. Therefore, the election to the office of the President could be challenged only according to the procedure prescribed by that Act and that is by means of an election petition presented in accordance with the provisions of the Act and in no other way. The Act provides only for one remedy, that remedy being an election petition to be presented after the election is over and there is no remedy provided at any intermediate stage. These conclusions follow from the decision of this Court in Ponnuswamis case (supra) in its application to the facts of this case. But the conclusions above stated were arrived at without taking the provisions of Article 329 into account. The provisions of Article 329 are relevant only to the extent that even the remedy under Article 226 of the Constitution is barred as a result of the provisions. But once the legal effect above set forth of the provision of law which we are concerned with is taken into account there is no room for the High Courts to interfere in exercise of their powers under Article 226 of the Constitution. Whether there can be any extraordinary circumstances in which the High Courts could exercise their power under Article 226 in relation to elections it is not now necessary to consider. All the considerations applied in coming to the conclusion that elections to the legislatures should not be delayed or protracted by the interference of courts at any intermediate stage before the results of the election are over apply with equal force to elections to local bodies.
### Response:
1
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3. We are of the opinion that the whole approach of the learned Judges of the High Court to this problem wasthe only way by which the election of a President can be called in question is by means of an election petition presented in accordance with the provisions of this Act. The election itself can be questioned only on one of the three grounds mentioned above. The only ground in the present case on the basis of which the election of the appellant was questioned is that there was a non-compliance with the provisions of Rule 6, already referred to. Under the Act the non-compliance with any rule or order made under the Act or any provisions of the Act does not ipso facto result in the election being set aside. That result can be set aside only if the Election Tribunal comes to the conclusion that the result of the election has been materially affected by such non-compliance. The jurisdiction to decide the validity of the election of a President is an exclusive one conferred on the District Judge. In the circumstances there was no room for the High Court exercising its powers under Article 226 in order to set aside the election. In setting aside the election the High Court plainly erred because it did not consider whether the result of the election had been materially affected by non-compliance compliance with the rule in question. In any case that is a matter within the exclusive jurisdiction of the District Judge.It follows that the right to vote or stand for election to the office of the President of the Municipal Board is a creature of the statute, that is, the U.P. Municipalities Act and it must be subject to the limitations imposed by it. Therefore, the election to the office of the President could be challenged only according to the procedure prescribed by that Act and that is by means of an election petition presented in accordance with the provisions of the Act and in no other way. The Act provides only for one remedy, that remedy being an election petition to be presented after the election is over and there is no remedy provided at any intermediate stage. These conclusions follow from the decision of this Court in Ponnuswamis case (supra) in its application to the facts of this case. But the conclusions above stated were arrived at without taking the provisions of Article 329 into account. The provisions of Article 329 are relevant only to the extent that even the remedy under Article 226 of the Constitution is barred as a result of the provisions. But once the legal effect above set forth of the provision of law which we are concerned with is taken into account there is no room for the High Courts to interfere in exercise of their powers under Article 226 of the Constitution. Whether there can be any extraordinary circumstances in which the High Courts could exercise their power under Article 226 in relation to elections it is not now necessary to consider. All the considerations applied in coming to the conclusion that elections to the legislatures should not be delayed or protracted by the interference of courts at any intermediate stage before the results of the election are over apply with equal force to elections to local bodies.
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J. G. Glass Industries Limited Vs. Union of India | our judgment, the approach of the Collector is clearly erroneous. The Collector proceeded to quash the order of refund passed by Assistant Collector solely on the ground that the petitioners had entered into an agreement with Messrs. Poona Beverage Company for supply of bottles after printing logo and as the work of manufacturing the bottles and printing is carried out in the factory of the petitioners, the assessable value has to be determined by taking into consideration the value of printing. According to the Collector, Section 4 of the Central Excise Act requires that the assessable value should be determined as the value of the article which leaves the factory gate and the value of the glass bottle was increased after process of printing while leaving the factory gate.( 5 ) IT is not possible to sustain the view taken by the Collector while holding that the cost of printing shall be included while determining the assessable value of the glass bottles. The excise duty being on the process of manufacture, it can hardly be debated that the taxable event occurred when the manufacture of glass bottles was completed. Mr. Desai, learned counsel appearing on behalf of the Department, could not dispute that by process of printing logo on these bottles the identity of the bottles is not changed. Mr. Desai submitted that value of the bottle stands increased by process of printing. But it is not possible to accede to the submission on the facts and circumstances of the case. The process of printing logo is undertakes for the purpose of identification and we are unable to appreciate how by any stretch of imagination it will increase the value of the bottle. Indeed, every manufacturer undertakes the process of either printing logo or the name of the customer when an order is booked for a large number of articles to be manufactured. For illustration, several companies distribute gift articles like money purses, fountain pens, diaries etc. and on manufacture of these articles the name of the company is printed and this process of printing is done only for the purpose of identification and by no stretch of imagination improves the value of the article. In our judgment, as the identity of the article, that is, the glass bottle, is not altered by process of printing logo or the value of the glass bottle is not increased or the glass bottle is not an improved article by the process of printing, it is futile to suggest that the cost of printing logo should be included while determining assessable value of glass bottles. ( 6 ) MR. Desai relied upon the decision of the Supreme Court in Union of India and Others v. Bombay Tyre International Ltd.- 1983 (14) E. L. T. 1896, and especially on the observations made in paragraph 49. The Supreme Court observed that for the purpose of determining the value, broadly speaking, both old Section 4 (a) and the new Section 4 (1) (a) speak of the price for sale in the course of wholesale trade of the article for delivery at the time and place of removal, namely, the factory gate. The sale price of an article is related to its value and into that value several components including those which have enriched its value and given the article its marketability in the trade are required to be included. We fail to appreciate how these observations would assist the Department in sustaining the impugned order. The marketability of the article does not depend upon the printing of the logo of the customer. As mentioned hereinabove, the bottles could easily be sold in market and the logo is printed only for the purpose of identity of the customer. Mr. Desai also referred to the decision of the Supreme Court in Empire Industries Ltd. and Others v. Union of India and Others - 1985 (20) E. L. T. 179. The decision of the Supreme Court has no relevance to the facts of the present case because in the case before the Supreme Court the identity of the article was entirely changed and a new article had come into existence after the process of bleaching, dyeing and printing was undertaken. The process of bleaching, dyeing and printing was carried out on grey fabrics to bring into existence sarees which can be sold in market. It is not permissible to apply the principle which was laid down by the Supreme Court on the set of facts where admittedly a different article with a distinct identity came into existence by the process undertaken. In the present case, in our judgment, the process of printing has not brought into existence a different article with a distinct identity nor the process has increased or improved the value of the article. In these circumstances, the collector was clearly in error in disturbing the order passed by the Assistant Collector and concluding that while determining the assessable value of glass bottles the cost of printing should be included. The order of the Collector is not sustainable and is required to be set aside.( 7 ) MR. Desai submitted that the order of the Collector should not be disturbed in exercise of writ jurisdiction as the petitioners had an efficacious alternate remedy of filing an appeal. We are not prepared to accede to the submission of Mr. Desai that the petitioners should be driven to commence a fresh bout of litigation for more than one reason. In the first instance, the present petition is pending in this Court for the last over seven years and it would be extremely harsh and unjust to compel the petitioners to adopt remedy of filing an appeal by incurring large expenses. Secondly, the decision of the Collector is entirely unsustainable on the facts and circumstances of the case and there is no dispute whatsoever about the facts on which the decision is to be resisted. In these circumstances, we decline to accede to the preliminary objection raised by Mr. Desai. | 1[ds]( 5 ) IT is not possible to sustain the view taken by the Collector while holding that the cost of printing shall be included while determining the assessable value of the glassexcise duty being on the process of manufacture, it can hardly be debated that the taxable event occurred when the manufacture of glass bottles wasit is not possible to accede to the submission on the facts and circumstances of the case. The process of printing logo is undertakes for the purpose of identification and we are unable to appreciate how by any stretch of imagination it will increase the value of the bottle. Indeed, every manufacturer undertakes the process of either printing logo or the name of the customer when an order is booked for a large number of articles to beour judgment, as the identity of the article, that is, the glass bottle, is not altered by process of printing logo or the value of the glass bottle is not increased or the glass bottle is not an improved article by the process of printing, it is futile to suggest that the cost of printing logo should be included while determining assessable value of glassthe present case, in our judgment, the process of printing has not brought into existence a different article with a distinct identity nor the process has increased or improved the value of the article. In these circumstances, the collector was clearly in error in disturbing the order passed by the Assistant Collector and concluding that while determining the assessable value of glass bottles the cost of printing should be included. The order of the Collector is not sustainable and is required to be setare not prepared to accede to the submission of Mr. Desai that the petitioners should be driven to commence a fresh bout of litigation for more than one reason. In the first instance, the present petition is pending in this Court for the last over seven years and it would be extremely harsh and unjust to compel the petitioners to adopt remedy of filing an appeal by incurring large expenses. Secondly, the decision of the Collector is entirely unsustainable on the facts and circumstances of the case and there is no dispute whatsoever about the facts on which the decision is to be resisted. In these circumstances, we decline to accede to the preliminary objection raised by Mr. Desai. | 1 | 1,780 | 424 | ### 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:
our judgment, the approach of the Collector is clearly erroneous. The Collector proceeded to quash the order of refund passed by Assistant Collector solely on the ground that the petitioners had entered into an agreement with Messrs. Poona Beverage Company for supply of bottles after printing logo and as the work of manufacturing the bottles and printing is carried out in the factory of the petitioners, the assessable value has to be determined by taking into consideration the value of printing. According to the Collector, Section 4 of the Central Excise Act requires that the assessable value should be determined as the value of the article which leaves the factory gate and the value of the glass bottle was increased after process of printing while leaving the factory gate.( 5 ) IT is not possible to sustain the view taken by the Collector while holding that the cost of printing shall be included while determining the assessable value of the glass bottles. The excise duty being on the process of manufacture, it can hardly be debated that the taxable event occurred when the manufacture of glass bottles was completed. Mr. Desai, learned counsel appearing on behalf of the Department, could not dispute that by process of printing logo on these bottles the identity of the bottles is not changed. Mr. Desai submitted that value of the bottle stands increased by process of printing. But it is not possible to accede to the submission on the facts and circumstances of the case. The process of printing logo is undertakes for the purpose of identification and we are unable to appreciate how by any stretch of imagination it will increase the value of the bottle. Indeed, every manufacturer undertakes the process of either printing logo or the name of the customer when an order is booked for a large number of articles to be manufactured. For illustration, several companies distribute gift articles like money purses, fountain pens, diaries etc. and on manufacture of these articles the name of the company is printed and this process of printing is done only for the purpose of identification and by no stretch of imagination improves the value of the article. In our judgment, as the identity of the article, that is, the glass bottle, is not altered by process of printing logo or the value of the glass bottle is not increased or the glass bottle is not an improved article by the process of printing, it is futile to suggest that the cost of printing logo should be included while determining assessable value of glass bottles. ( 6 ) MR. Desai relied upon the decision of the Supreme Court in Union of India and Others v. Bombay Tyre International Ltd.- 1983 (14) E. L. T. 1896, and especially on the observations made in paragraph 49. The Supreme Court observed that for the purpose of determining the value, broadly speaking, both old Section 4 (a) and the new Section 4 (1) (a) speak of the price for sale in the course of wholesale trade of the article for delivery at the time and place of removal, namely, the factory gate. The sale price of an article is related to its value and into that value several components including those which have enriched its value and given the article its marketability in the trade are required to be included. We fail to appreciate how these observations would assist the Department in sustaining the impugned order. The marketability of the article does not depend upon the printing of the logo of the customer. As mentioned hereinabove, the bottles could easily be sold in market and the logo is printed only for the purpose of identity of the customer. Mr. Desai also referred to the decision of the Supreme Court in Empire Industries Ltd. and Others v. Union of India and Others - 1985 (20) E. L. T. 179. The decision of the Supreme Court has no relevance to the facts of the present case because in the case before the Supreme Court the identity of the article was entirely changed and a new article had come into existence after the process of bleaching, dyeing and printing was undertaken. The process of bleaching, dyeing and printing was carried out on grey fabrics to bring into existence sarees which can be sold in market. It is not permissible to apply the principle which was laid down by the Supreme Court on the set of facts where admittedly a different article with a distinct identity came into existence by the process undertaken. In the present case, in our judgment, the process of printing has not brought into existence a different article with a distinct identity nor the process has increased or improved the value of the article. In these circumstances, the collector was clearly in error in disturbing the order passed by the Assistant Collector and concluding that while determining the assessable value of glass bottles the cost of printing should be included. The order of the Collector is not sustainable and is required to be set aside.( 7 ) MR. Desai submitted that the order of the Collector should not be disturbed in exercise of writ jurisdiction as the petitioners had an efficacious alternate remedy of filing an appeal. We are not prepared to accede to the submission of Mr. Desai that the petitioners should be driven to commence a fresh bout of litigation for more than one reason. In the first instance, the present petition is pending in this Court for the last over seven years and it would be extremely harsh and unjust to compel the petitioners to adopt remedy of filing an appeal by incurring large expenses. Secondly, the decision of the Collector is entirely unsustainable on the facts and circumstances of the case and there is no dispute whatsoever about the facts on which the decision is to be resisted. In these circumstances, we decline to accede to the preliminary objection raised by Mr. Desai.
### Response:
1
### Explanation:
( 5 ) IT is not possible to sustain the view taken by the Collector while holding that the cost of printing shall be included while determining the assessable value of the glassexcise duty being on the process of manufacture, it can hardly be debated that the taxable event occurred when the manufacture of glass bottles wasit is not possible to accede to the submission on the facts and circumstances of the case. The process of printing logo is undertakes for the purpose of identification and we are unable to appreciate how by any stretch of imagination it will increase the value of the bottle. Indeed, every manufacturer undertakes the process of either printing logo or the name of the customer when an order is booked for a large number of articles to beour judgment, as the identity of the article, that is, the glass bottle, is not altered by process of printing logo or the value of the glass bottle is not increased or the glass bottle is not an improved article by the process of printing, it is futile to suggest that the cost of printing logo should be included while determining assessable value of glassthe present case, in our judgment, the process of printing has not brought into existence a different article with a distinct identity nor the process has increased or improved the value of the article. In these circumstances, the collector was clearly in error in disturbing the order passed by the Assistant Collector and concluding that while determining the assessable value of glass bottles the cost of printing should be included. The order of the Collector is not sustainable and is required to be setare not prepared to accede to the submission of Mr. Desai that the petitioners should be driven to commence a fresh bout of litigation for more than one reason. In the first instance, the present petition is pending in this Court for the last over seven years and it would be extremely harsh and unjust to compel the petitioners to adopt remedy of filing an appeal by incurring large expenses. Secondly, the decision of the Collector is entirely unsustainable on the facts and circumstances of the case and there is no dispute whatsoever about the facts on which the decision is to be resisted. In these circumstances, we decline to accede to the preliminary objection raised by Mr. Desai.
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Abraham Mathai Vs. Sub-Collector (Land Acq. Officer) and Others | objections, if any, under Section 5-A of the Land Acquisition Act to the proposed acquisition and in that notice it was stated that the enquiry under Section 5-A would be held on September 23, 1952. The Sub-Collector after hearing the appellant and his objections overruled his objections and recommended acquisition. The appellant thereafter made application under Article 226 of the Constitution for a writ of certiorari and for other directions for quashing the proceedings and for granting other reliefs, on the ground that under Section 5-A the Sub-Collector was bound by Rule 3 to give notice of those objections to the Education Department at whose instance step for acquisition has been taken. It was held that the object of Rule 3(b) of the Rules made by the Madras Government under Section 55(1) of the Act for giving notice to the concerned department before hearing of objections filed under Section 5-A is not merely to give the department an opportunity to maintain or support its original requisition but also to provide n opportunity for the original requisition being reviewed or reconsidered by the department in the light of the objections raised by the owner of the land and other persons interested in it. 13. In State of Madras v. Periakkal (AIR 1974 Mad 383 : (1974) 2 MLJ 217 ) the land acquisition proceedings were started at the instance of the Harijan Welfare Department for the purpose of constructing houses for the Harijans. Notice of the date of hearing of objections filed by the respondent, owner of the land was not given to the Harijans Welfare Department at whose instance the proceedings for acquisition were initiated under Rule 3(b) of the Rules made under Section 55(1) of the Land Acquisition Act. It was held that under Rule 3(b) it is incumbent on the Collector to give notice of objection to the department requiring the land and copies of the objections had to be given to such other departments. This is for enabling the department to file on or before the date fixed by the Collector a statement by way of answer to the objections and also depute a representative to attend the enquiry. This has to be done in order to give an opportunity to the department requiring the land to traverse the objections, if any filed by the person interested in the land, so that in the light of the reply of the department, a decision may be arrived at for the purpose of making the declaration under Section 6. It has been held that the rule being not mandatory it effect is that in the absence of service of such notice acquisition proceedings are not invalidated. 14. In State of Mysore v. V. K. Kangan ((1976) 2 SCC 895 : (1976) 1 SCR 369 , 371) the land was sought to be acquired for an Engineering College at the instance of the Education Department of the State of Mysore, Section 4 notification was issued in the year 1960. After an enquiry into the objections filed under Section 5-A the Land Acquisition Officer sent his report to the government. Government overruled the objections and issued a notification under Section 6. The Education Department at whose instance the land was sought to be acquired was not given notice as required by Rule 3(b) of Madras Land Acquisition Rules. The respondents filed a writ petition in the High Court challenging the validity of both the notifications on the ground that the Education Department was not consulted. The High Court upheld the contention of the respondents and quashed the notifications issued under Section 4 and 6 of the Act on the ground that if the department concerned filed any reply pursuant to the notice issued, the objector would know what the department had stated by way reply and at the stage of hearing of objections, the objector might adduce evidence or address arguments to meet what is stated in such reply. The objector would further urge before the government that the reasons given by the department in reply to the objections should not be accepted. It was held that Section 5-A required the Collector to make a report after hearing the objections. It does not mean that a rule cannot be framed which would enable the department concerned to place its view point before the Collector when considering the objection under Section 5-A. The proceedings of the Collector are quasi-judicial and it is only proper that he should be apprised of the attitude of the department requiring the land in the light of the objections filed. It would be helpful to the government in making the decision to have before it the answer to the objection by the department in order to appreciate the rival view-points. Rule 3(b) is not ultra vires Section 5-A. 15. It has been held that Rule 3(b) was enacted for the purpose of enabling the Collector to have all the relevant materials before him for coming to a conclusion to be incorporated in the report to be sent to the government in order to enable the government to make proper decision. 16. Rule 3(b) is mandatory and non-service of the notice on the government department at whose instance the requisition for acquisition was initiated, the notification under Section 6 becomes bad and as such the same was quashed. This decision is not applicable to the instant case for the simple reason that the requisition was not made at the instance of the government department but at the instance of the Manager, private school and the Education Department merely has been a note certifying that the purpose of the requisition is a public purpose and that the school agreed to bear the entire costs. 17. In these circumstances it cannot be contended that the requisition has been made by the Education Department or by its officer for acquisition of the land in question. Therefore, in our considered opinion the ruling cited above is not applicable to the instant case. | 0[ds]14. In State of Mysore v. V. K. Kangan ((1976) 2 SCC 895 : (1976) 1 SCR 369 , 371) the land was sought to be acquired for an Engineering College at the instance of the Education Department of the State of Mysore, Section 4 notification was issued in the year 1960. After an enquiry into the objections filed under Section 5-A the Land Acquisition Officer sent his report to the government. Government overruled the objections and issued a notification under Section 6. The Education Department at whose instance the land was sought to be acquired was not given notice as required by Rule 3(b) of Madras Land Acquisition Rules. The respondents filed a writ petition in the High Court challenging the validity of both the notifications on the ground that the Education Department was not consulted. The High Court upheld the contention of the respondents and quashed the notifications issued under Section 4 and 6 of the Act on the ground that if the department concerned filed any reply pursuant to the notice issued, the objector would know what the department had stated by way reply and at the stage of hearing of objections, the objector might adduce evidence or address arguments to meet what is stated in such reply. The objector would further urge before the government that the reasons given by the department in reply to the objections should not be accepted. It was held that Section 5-A required the Collector to make a report after hearing the objections. It does not mean that a rule cannot be framed which would enable the department concerned to place its view point before the Collector when considering the objection under Section 5-A. The proceedings of the Collector are quasi-judicial and it is only proper that he should be apprised of the attitude of the department requiring the land in the light of the objections filed. It would be helpful to the government in making the decision to have before it the answer to the objection by the department in order to appreciate the rival view-points. Rule 3(b) is not ultra vires SectionIt has been held that Rule 3(b) was enacted for the purpose of enabling the Collector to have all the relevant materials before him for coming to a conclusion to be incorporated in the report to be sent to the government in order to enable the government to make properRule 3(b) is mandatory and non-service of the notice on the government department at whose instance the requisition for acquisition was initiated, the notification under Section 6 becomes bad and as such the same was quashed. This decision is not applicable to the instant case for the simple reason that the requisition was not made at the instance of the government department but at the instance of the Manager, private school and the Education Department merely has been a note certifying that the purpose of the requisition is a public purpose and that the school agreed to bear the entireIn these circumstances it cannot be contended that the requisition has been made by the Education Department or by its officer for acquisition of the land in question. Therefore, in our considered opinion the ruling cited above is not applicable to the instant case | 0 | 3,998 | 588 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
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objections, if any, under Section 5-A of the Land Acquisition Act to the proposed acquisition and in that notice it was stated that the enquiry under Section 5-A would be held on September 23, 1952. The Sub-Collector after hearing the appellant and his objections overruled his objections and recommended acquisition. The appellant thereafter made application under Article 226 of the Constitution for a writ of certiorari and for other directions for quashing the proceedings and for granting other reliefs, on the ground that under Section 5-A the Sub-Collector was bound by Rule 3 to give notice of those objections to the Education Department at whose instance step for acquisition has been taken. It was held that the object of Rule 3(b) of the Rules made by the Madras Government under Section 55(1) of the Act for giving notice to the concerned department before hearing of objections filed under Section 5-A is not merely to give the department an opportunity to maintain or support its original requisition but also to provide n opportunity for the original requisition being reviewed or reconsidered by the department in the light of the objections raised by the owner of the land and other persons interested in it. 13. In State of Madras v. Periakkal (AIR 1974 Mad 383 : (1974) 2 MLJ 217 ) the land acquisition proceedings were started at the instance of the Harijan Welfare Department for the purpose of constructing houses for the Harijans. Notice of the date of hearing of objections filed by the respondent, owner of the land was not given to the Harijans Welfare Department at whose instance the proceedings for acquisition were initiated under Rule 3(b) of the Rules made under Section 55(1) of the Land Acquisition Act. It was held that under Rule 3(b) it is incumbent on the Collector to give notice of objection to the department requiring the land and copies of the objections had to be given to such other departments. This is for enabling the department to file on or before the date fixed by the Collector a statement by way of answer to the objections and also depute a representative to attend the enquiry. This has to be done in order to give an opportunity to the department requiring the land to traverse the objections, if any filed by the person interested in the land, so that in the light of the reply of the department, a decision may be arrived at for the purpose of making the declaration under Section 6. It has been held that the rule being not mandatory it effect is that in the absence of service of such notice acquisition proceedings are not invalidated. 14. In State of Mysore v. V. K. Kangan ((1976) 2 SCC 895 : (1976) 1 SCR 369 , 371) the land was sought to be acquired for an Engineering College at the instance of the Education Department of the State of Mysore, Section 4 notification was issued in the year 1960. After an enquiry into the objections filed under Section 5-A the Land Acquisition Officer sent his report to the government. Government overruled the objections and issued a notification under Section 6. The Education Department at whose instance the land was sought to be acquired was not given notice as required by Rule 3(b) of Madras Land Acquisition Rules. The respondents filed a writ petition in the High Court challenging the validity of both the notifications on the ground that the Education Department was not consulted. The High Court upheld the contention of the respondents and quashed the notifications issued under Section 4 and 6 of the Act on the ground that if the department concerned filed any reply pursuant to the notice issued, the objector would know what the department had stated by way reply and at the stage of hearing of objections, the objector might adduce evidence or address arguments to meet what is stated in such reply. The objector would further urge before the government that the reasons given by the department in reply to the objections should not be accepted. It was held that Section 5-A required the Collector to make a report after hearing the objections. It does not mean that a rule cannot be framed which would enable the department concerned to place its view point before the Collector when considering the objection under Section 5-A. The proceedings of the Collector are quasi-judicial and it is only proper that he should be apprised of the attitude of the department requiring the land in the light of the objections filed. It would be helpful to the government in making the decision to have before it the answer to the objection by the department in order to appreciate the rival view-points. Rule 3(b) is not ultra vires Section 5-A. 15. It has been held that Rule 3(b) was enacted for the purpose of enabling the Collector to have all the relevant materials before him for coming to a conclusion to be incorporated in the report to be sent to the government in order to enable the government to make proper decision. 16. Rule 3(b) is mandatory and non-service of the notice on the government department at whose instance the requisition for acquisition was initiated, the notification under Section 6 becomes bad and as such the same was quashed. This decision is not applicable to the instant case for the simple reason that the requisition was not made at the instance of the government department but at the instance of the Manager, private school and the Education Department merely has been a note certifying that the purpose of the requisition is a public purpose and that the school agreed to bear the entire costs. 17. In these circumstances it cannot be contended that the requisition has been made by the Education Department or by its officer for acquisition of the land in question. Therefore, in our considered opinion the ruling cited above is not applicable to the instant case.
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### Explanation:
14. In State of Mysore v. V. K. Kangan ((1976) 2 SCC 895 : (1976) 1 SCR 369 , 371) the land was sought to be acquired for an Engineering College at the instance of the Education Department of the State of Mysore, Section 4 notification was issued in the year 1960. After an enquiry into the objections filed under Section 5-A the Land Acquisition Officer sent his report to the government. Government overruled the objections and issued a notification under Section 6. The Education Department at whose instance the land was sought to be acquired was not given notice as required by Rule 3(b) of Madras Land Acquisition Rules. The respondents filed a writ petition in the High Court challenging the validity of both the notifications on the ground that the Education Department was not consulted. The High Court upheld the contention of the respondents and quashed the notifications issued under Section 4 and 6 of the Act on the ground that if the department concerned filed any reply pursuant to the notice issued, the objector would know what the department had stated by way reply and at the stage of hearing of objections, the objector might adduce evidence or address arguments to meet what is stated in such reply. The objector would further urge before the government that the reasons given by the department in reply to the objections should not be accepted. It was held that Section 5-A required the Collector to make a report after hearing the objections. It does not mean that a rule cannot be framed which would enable the department concerned to place its view point before the Collector when considering the objection under Section 5-A. The proceedings of the Collector are quasi-judicial and it is only proper that he should be apprised of the attitude of the department requiring the land in the light of the objections filed. It would be helpful to the government in making the decision to have before it the answer to the objection by the department in order to appreciate the rival view-points. Rule 3(b) is not ultra vires SectionIt has been held that Rule 3(b) was enacted for the purpose of enabling the Collector to have all the relevant materials before him for coming to a conclusion to be incorporated in the report to be sent to the government in order to enable the government to make properRule 3(b) is mandatory and non-service of the notice on the government department at whose instance the requisition for acquisition was initiated, the notification under Section 6 becomes bad and as such the same was quashed. This decision is not applicable to the instant case for the simple reason that the requisition was not made at the instance of the government department but at the instance of the Manager, private school and the Education Department merely has been a note certifying that the purpose of the requisition is a public purpose and that the school agreed to bear the entireIn these circumstances it cannot be contended that the requisition has been made by the Education Department or by its officer for acquisition of the land in question. Therefore, in our considered opinion the ruling cited above is not applicable to the instant case
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M. C. Gupta & Others Vs. Dr. Arun K. Gupta and Others | one of the American Boards and, therefore, it is not recognised. Such a contention was not even urged before the High Court or specifically in affidavits so that factual material could have been more carefully examined. The experts aiding and advising the Commission must be quite aware of institutions in which the teaching experience was acquired by Dr. Tandon and this one is a reputed University.It was, however, contended that there is no proof in support of the submission that Dr. Tandon was working as Assistant Professor of Medicine at State University of New York at Buffalo, commencing from 29th July 1969. Dr. Tandon has produced a certificate, Annexure CA. 5 issued by Associate Professor of Medicine, Director Angiology Department, Buffalo General Hospital dated 3rd June 1971, in which it is stated that Dr. Tandon is an Assistant Professor of Medicine in the Department of Medicine on the full time staff of the Buffalo General Hospital having an annual salary of $ 15, 000. Mr. Tarkunde urged that this certificate does not show that Dr. Tandon was appointed effective from 29th July 1969. Further, exception was taken to the certificate in that it is issue d by the Buffalo General Hospital which the certificate does not show to be a teaching institution. If it was not a teaching institution, one would fail to understand how it had a post of Assistant Professor of Medicine. In a nonteaching hospital there could not be a post of Assistant Professor. Therefore, the very fact that Dr. Tandon was shown to be an Assistant Professor of Medicine, by necessary implication shows that Buffalo General Hospital was a teaching institution under St ate University of New York. In this connection reference may be made to a certificate dated 12th September 1974 issued by James P. Nolan, Professor of Medicine and Head, Department of Medicine, Buffalo General Hospital, in which it is stated that sin ce July 1969 Dr. Tandon has been a teacher in general medicine at the Buffalo General Hospital. This removes any doubt about the commencement of appointment of Dr. Tandon as Assistant Professor at the Buffalo General Hospital. Mr. Tarkunde however urged that the certificate does not appear to be genuine in view of the inquiry made by a telegram (p. 257, Vol. II of the record) from the authorities incharge of the Buffalo General Hospital and the reply received that Dr. Tandon is in India and, therefore, cannot get any information as he left instructions not to release it. Who has sent this telegram is left to mere speculation. And who sent the reply is equally unknown. It would be improper to reject the certificate on such nebulous ground and we can do no better than reject the contention of Mr. Tarkunde as unworthy of consideration as was done in A. K. Mukherjees case where in it was observed as under: There are 6 certificates now on record and the 1st respondent is stated to have taken part in teaching work as Registrar. You cannot expect to produce those surgeons in Patna in proof and unless serious circumstances militating against veracity exist fair-minded administrators may, after expert consultations, rely on them. Therefore, we see no justification for rejecting the certificates. It would appear that Dr. Tandon had the teaching experience while holding the post of Assistant Professor of Medicine for a period of four years, six months and one day. The minimum requirement is five years. 15. We would next examine one more item of experience claimed by Dr. Tandon in that he was post-doctoral teaching fellow, Department of Medicine, State University of New York at Buffalo from 1st October 1965 to 31st October 1966. Now, undoubtedly this was teaching experience in the same University where he was subsequently Assistant Professor. The grievance is that h e was a Fellow and neither a Lecturer nor an Assistant Professor. What does Fellow in the University connote ? A certificate has been produced, Annexure CA. (page 50, Vol. IV) by Dr. Tandon issued by Eugine I. Lippasch, Professor &Administrative Associate Chairman of the Department of Medicine, State University of New York at Buffalo, dated 13th October 1966, in which it is stated that Dr. Tandon completed one year teaching fellowship in the Division of Cardiology of t he Department of Medicine at the State University of New York at Buffalo and the Buffalo General Hospital on October 31, 1966. It is not very clear what is the equivalent of a Fellow in teaching Hospitals in India but Dr. Tandon has also claimed teaching experience from 5th April 1968 to 4th July 1969, being posted as post-doctoral research fellow, Department of Medicine in G. S. V. M. Medical College, Kanpur. In this connection, Annexure R-2, produced by none other than some of the contesting respondents shows that during the tenure of Fellowship, Dr. Tandon was expected to take part in the teaching and research activities of the College though he would not be treated as part of the regular establishment of the College. Now, if the certificate produced by Dr. Tandon shows that Fellowship included teaching work, it would be unwise to doubt it. Even if 50% of the time spent in these two places is given credit, Dr. Tandon had certainly more than five years teaching experience. The Court is not competent to work out figures with mathematical precision. It can broadly examine the question whether the requirement is satisfied or not. Therefore, he had the requisite teaching/research experience and the Commission was fully justified in treating Dr. Tandon as having requisite teaching/research experience.It thus clearly appears that both Dr. M. C. Gupta and Dr. R. N. Tandon had the requisite qualifications, both academic and experience, and the y were eligible for the post for which they had applied and if they were selected by the Commission and appointed by the Government, no exception can be taken to the same. The High Court was, therefore, in error in interfering with the same. 16. | 1[ds]The controversy centres round the connotation of the expression medicine. Does it include Cardiology or Cardiology is a separate Branch ? Section 2(f) of the Act defines medicine to mean modern scientific medicine in all its branches and includes surgery and obstetrics, but does not include veterinary medicine and surgery. This is too wide a definition to assist us in the problem posed for the decision of the Court. In the world of medical science there are general subjects and specialities. Medicine and surgery are general subjects. To wit, Cardiology is a speciality in medicine and orthopaedics is a speciality in surgery. Even the regulation from page 8 onwards bears the heading Specialist Branch under Medicine and Surgery. Cardiology finds its place as a specialist branch under medicine. The relevant regulation requires teaching/research experience in medicine. Contention is, if any one who has teaching/research experience in Cardiology, could he be said to have such experience in medicine ? In this context we must recall regulation 4 which provides that 50% of the time spent in recognised research after obtaining the requisite post-graduate qualification shall be counted towards teaching experience in the same or allied subject provided that 50% of the teaching experience shall be the regular teaching experience. If research in allied subject can be taken to satisfy the requisite experience, teaching experience in a speciality under the general head could not be put on an inferior footing. Undoubtedly, if the post is in a specialist department, the requisite teaching/research experience will have to be in the speciality. To illustrate, if one were to qualify for being appointed as Professor/ Associate Professor of Cardiology, his teaching experience must be in Cardiology though his research experience could as well be in Cardiology or allied subject. A person having such experience in the general subject medicine cannot qualify for the speciality. That it what distinguishes the speciality from the general subject. This becomes clear from the fact that in a number of hospitals there may not be posts in specialist branches and someone working in the general department may be assigned to do the work of specialist branches. If a particular hospital has not got Cardiology as a specialist branch, a Reader or Assistant Professor in the Department of Medicine may be required to look after Cardiology cases and teaching of Cardiology as a subject. In that event he is certainly a Reader/Assistant Professor in Medicine teaching one of the subjects, viz., Cardiology which again forms part of the general curriculum of the subject of medicine. Therefore, it is not proper to divorce a specialist branch subject from the general subject. It cannot be seriously contended that medicine does not include Cardiology. To be qualified for the specialist branch of Cardiology, the minimum academic qualification is M.D. (Medicine). This would clearly show that after acquiring the general qualification one can take the specialist branch. If any other approach is adopted it would work to the disadvantage of the person who while being posted in the Department of Medicine, is asked to teach a subject which is necessary for being taught for qualifying for M.D. but which can be styled as speciality. He would simultaneously be denied the teaching experience in the subject of Medicine. An extreme argument was urged that in adopting this approach it may be that somebody may be working in different specialist branches such as Neurology, Gastroenterology, Psychiatry, etc. and each one would qualify for being appointed as Professor of Medicine without having even a tickle of experience on the subject of general medicine. This wild apprehension need not deter us because it should be first remembered that any one going into specialist branch under medicine has to be M.D. (Medicine). Thereafter, if he wants to become a Professor in the specialist branch such as Cardiology, the academic qualification required is to hold a degree of D.M. in the Specialist Branch. This becomes clear from a perusal of the regulations. It is not necessary, therefore, to go into the dictionary meaning of the expression medicine to determine whether it includes Cardiology. The Medical Council of India, a body composed of experts have in the regulations clearly manifested their approach when they said that Cardiology is a specialist branch under medicine. Ipso facto, medicine includes Cardiology. It was not disputed that one qualifying for M.D. (Medicine) has to learn the subject of Cardiology. And it must be remembered that the four experts aiding and advising the Commission have considered teaching experience in Cardiology as teaching experience in Medicine. The counter-affidavit on behalf of the Commission in terms states that medicine is a wide and general subject an d includes Cardiology whereas for the post of Professor of Cardiology a further two years special training in Cardiology or D.M. in Cardiology after M.D. in Medicine has been laid down as a requisite qualification by the Medical Council. It is further stated that teaching experience in Cardiology will make the person eligible for the post of Professor of Medicine. That was the view of the experts who assisted the Commission.Incidentally it may be mentioned that Mr. V. M. Tarkunde, learned counsel for respondents 1, 2 and 3 took serious exception to giving any weight to thebecause it has not been sworn to by any expert aiding or advising the Commission or by any officer or Member of the Commission but by an Upper Division Assistant whose source of knowledge is the legal advice tendered to. In paragraph 1 of the affidavit the deponent says that he has been deputed by the Commission to file the counter-affidavit on their behalf and as such he is fully acquainted with the facts deposed to in the affidavit. It is our sad experience that responsible authorities avoid filing affidavits in courts when it behoves them to assist the Court and facilitate the decision of the questions brought before the Court but on this account alone we would not wholly ignore the counter affidavit.Some documents were brought to our notice showing that in State University of New York at Buffalo, U.S.A. the Assistant Professor of Cardiology is designated as Assistant Professor of Medicine. Further, in the Agra University Calendar, Cardiology is included in the Department of Medicine. Similarly it was also pointed out that the Department of Medicine in the University of Manchester includes Lecturer in Cardiology. Apart from this administrative arrangement, it could not be seriously disputed that Cardiology is a specialist branch under medicine and it could not be wholly divorced from medicine. Under the general head medicine number of subjects are to be taught, one such being Cardiology. If a teacher is asked to teach Cardiology as one of the subjects for general medicine, could he be at a disadvantage by being treated as having not acquired teaching experience in medicine ? Even under general medicine, apart from medicine as a subject, there are numerous other subjects and papers and there would be one or more persons incharge of one or more subjects and papers and indisputably each one would be gaining experience in general medicine. If general medicine is to be restricted only to the paper on medicine, it would lead to a startling as result, as startling as it was sought to be urged when it was said that a person teaching Neurology could not be said to be gaining teaching experience in medicine. The matter has to be looked at from this angle, viz., that where general subject such as medicine or surgery is being dealt with in a regulation, the specialist branch under it would be covered, though not vice versa, because if one wants to hold a post in the specialist branch he must be of necessity have teaching experience in the specialist branch. In reaching this conclusion the seniority list maintained branch wise would hardly be helpful. Therefore, it is not possible to agree with the High Court that the subject of medicine under the regulation is exclusive of the other subjects mentioned therein and, therefore, does not include Cardiology.The second contention which found favour with the High Court was that the requisite teaching or research experience must be acquired while holding the post set out in the regulation in that subject. In other words, the view of the High Court is that the teaching/research experience must be acquired while holding the post of Reader/Assistant Professor in Medicine for five years in a Medical College. The High Court placed the emphasis on the experience acquired while holding the post. The relevant regulation requires teaching/research experience as Reader/Assistant Professor (which includes Lecturer) in Medicine for five years in a Medical College. Regulation 4 has to be read along with specific regulation. Regulation 4 clearly shows that 50% of the time spent in recognised research in the same or allied subject will be given credit provided that 50% of the teaching experience shall be regular teaching experience. The specific regulation prescribing the qualification will have to be read subject to the general regulation prescribed under regulation 4 because the experience qualification prescribed in specific regulation must be calculated according to the formula prescribed in general regulation no. 4. The specific regulation requires 5 years teaching/research experience. In calculating the research experience in the light of regulation 4, 2 1/2 years experience shall be specifically teaching experience and credit can b e given to the extent of 50% of the time spent in recognised research as prescribed in the regulation, which experience can be in the same subject, viz., the subject for which the recruitment is being made or in allied subject. So far there is no dispute. The question is: while acquiring research experience, is it incumbent that the person conducting research must also hold of necessity designated post in the regulation ? Now, if general regulation 4 is properly analysed for the purposes of computing research experience, the pre-requisite is that the research must be done after obtaining requisite post- graduate qualification. It has no reference to the post held by the person engaged in research at the time of conducting the research. The heading is teaching/research experience. The dichotomy will have to be applied to teaching and research experience for the purpose of computation. So far as teaching experience is concerned, it must be acquired while holding the post specified in the regulation. But to say that holding of the post is a pre-requisite while conducting research is to read in regulation 4 what is not prescribed thereunder. The specific regulation prescribing qualification will have to be read subject to general regulation 4 and not vice versa. This also becomes manifest from the fact that general regulation 4 also provides that 50% of the teaching experience shall be regular teaching experience meaning thereby that if someone is engaged exclusively in research, he cannot claim to satisfy the teaching experience qualification prescribed in the regulation. Reading specific regulation with general regulation 4, it emerges that teaching experience shall b e acquired while holding the particular post specified therein and the research experience can be taken into account if the person is engaged in research after obtaining post-graduate qualification and it has nothing to do with the holding of the post. One may be engaged as a research scholar and holds no teaching post. The research is hardly related to post though capacity for research is directly related to academic attainment. That has been taken care of. Teaching it indisputably related to t he post because a higher post may entail greater responsibility for coaching in higher classes. This conclusion is reinforced by the language of general regulation 4 which permits recognised research under the Indian Council of Medical Research which body may not have such hierarchical posts of Lecturer or Assistant Professor or Reader. These three designations are to be found in teaching institutions and not in research institutions. If it were, therefore, to be held that even while acquiring research experience one must hold the post of either Reader or Assistant Professor, it would discourage many persons conducting research under the Indian Council of Medical Research. It is, therefore, not possible to agree with the generalisation made by the High Court that teaching/research experience to qualify for the post of Professor must be acquired while working as a Reader or Lecturer.Having cleared the ground about the interpretation of requisite regulations, we must now turn to examine the two individual casesTherefore, we see no justification for rejecting the certificates. It would appear that Dr. Tandon had the teaching experience while holding the post of Assistant Professor of Medicine for a period of four years, six months and one day. The minimum requirement is five yearsWe would next examine one more item of experience claimed by Dr. Tandon in that he was post-doctoral teaching fellow, Department of Medicine, State University of New York at Buffalo from 1st October 1965 to 31st October 1966. Now, undoubtedly this was teaching experience in the same University where he was subsequently Assistant Professor. The grievance is that h e was a Fellow and neither a Lecturer nor an Assistant Professor. What does Fellow in the University connote ? A certificate has been produced, Annexure CA. (page 50, Vol. IV) by Dr. Tandon issued by Eugine I. Lippasch, Professor &Administrative Associate Chairman of the Department of Medicine, State University of New York at Buffalo, dated 13th October 1966, in which it is stated that Dr. Tandon completed one year teaching fellowship in the Division of Cardiology of t he Department of Medicine at the State University of New York at Buffalo and the Buffalo General Hospital on October 31, 1966. It is not very clear what is the equivalent of a Fellow in teaching Hospitals in India but Dr. Tandon has also claimed teaching experience from 5th April 1968 to 4th July 1969, being posted as post-doctoral research fellow, Department of Medicine in G. S. V. M. Medical College, Kanpur. In this connection, Annexure R-2, produced by none other than some of the contesting respondents shows that during the tenure of Fellowship, Dr. Tandon was expected to take part in the teaching and research activities of the College though he would not be treated as part of the regular establishment of the College. Now, if the certificate produced by Dr. Tandon shows that Fellowship included teaching work, it would be unwise to doubt it. Even if 50% of the time spent in these two places is given credit, Dr. Tandon had certainly more than five years teaching experience. The Court is not competent to work out figures with mathematical precision. It can broadly examine the question whether the requirement is satisfied or not. Therefore, he had the requisite teaching/research experience and the Commission was fully justified in treating Dr. Tandon as having requisite teaching/research experience.It thus clearly appears that both Dr. M. C. Gupta and Dr. R. N. Tandon had the requisite qualifications, both academic and experience, and the y were eligible for the post for which they had applied and if they were selected by the Commission and appointed by the Government, no exception can be taken to the same. The High Court was, therefore, in error in interfering with the sameTherefore, we would not take into account the research experience claimed on behalf of Dr. Gupta. | 1 | 6,930 | 2,768 | ### 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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one of the American Boards and, therefore, it is not recognised. Such a contention was not even urged before the High Court or specifically in affidavits so that factual material could have been more carefully examined. The experts aiding and advising the Commission must be quite aware of institutions in which the teaching experience was acquired by Dr. Tandon and this one is a reputed University.It was, however, contended that there is no proof in support of the submission that Dr. Tandon was working as Assistant Professor of Medicine at State University of New York at Buffalo, commencing from 29th July 1969. Dr. Tandon has produced a certificate, Annexure CA. 5 issued by Associate Professor of Medicine, Director Angiology Department, Buffalo General Hospital dated 3rd June 1971, in which it is stated that Dr. Tandon is an Assistant Professor of Medicine in the Department of Medicine on the full time staff of the Buffalo General Hospital having an annual salary of $ 15, 000. Mr. Tarkunde urged that this certificate does not show that Dr. Tandon was appointed effective from 29th July 1969. Further, exception was taken to the certificate in that it is issue d by the Buffalo General Hospital which the certificate does not show to be a teaching institution. If it was not a teaching institution, one would fail to understand how it had a post of Assistant Professor of Medicine. In a nonteaching hospital there could not be a post of Assistant Professor. Therefore, the very fact that Dr. Tandon was shown to be an Assistant Professor of Medicine, by necessary implication shows that Buffalo General Hospital was a teaching institution under St ate University of New York. In this connection reference may be made to a certificate dated 12th September 1974 issued by James P. Nolan, Professor of Medicine and Head, Department of Medicine, Buffalo General Hospital, in which it is stated that sin ce July 1969 Dr. Tandon has been a teacher in general medicine at the Buffalo General Hospital. This removes any doubt about the commencement of appointment of Dr. Tandon as Assistant Professor at the Buffalo General Hospital. Mr. Tarkunde however urged that the certificate does not appear to be genuine in view of the inquiry made by a telegram (p. 257, Vol. II of the record) from the authorities incharge of the Buffalo General Hospital and the reply received that Dr. Tandon is in India and, therefore, cannot get any information as he left instructions not to release it. Who has sent this telegram is left to mere speculation. And who sent the reply is equally unknown. It would be improper to reject the certificate on such nebulous ground and we can do no better than reject the contention of Mr. Tarkunde as unworthy of consideration as was done in A. K. Mukherjees case where in it was observed as under: There are 6 certificates now on record and the 1st respondent is stated to have taken part in teaching work as Registrar. You cannot expect to produce those surgeons in Patna in proof and unless serious circumstances militating against veracity exist fair-minded administrators may, after expert consultations, rely on them. Therefore, we see no justification for rejecting the certificates. It would appear that Dr. Tandon had the teaching experience while holding the post of Assistant Professor of Medicine for a period of four years, six months and one day. The minimum requirement is five years. 15. We would next examine one more item of experience claimed by Dr. Tandon in that he was post-doctoral teaching fellow, Department of Medicine, State University of New York at Buffalo from 1st October 1965 to 31st October 1966. Now, undoubtedly this was teaching experience in the same University where he was subsequently Assistant Professor. The grievance is that h e was a Fellow and neither a Lecturer nor an Assistant Professor. What does Fellow in the University connote ? A certificate has been produced, Annexure CA. (page 50, Vol. IV) by Dr. Tandon issued by Eugine I. Lippasch, Professor &Administrative Associate Chairman of the Department of Medicine, State University of New York at Buffalo, dated 13th October 1966, in which it is stated that Dr. Tandon completed one year teaching fellowship in the Division of Cardiology of t he Department of Medicine at the State University of New York at Buffalo and the Buffalo General Hospital on October 31, 1966. It is not very clear what is the equivalent of a Fellow in teaching Hospitals in India but Dr. Tandon has also claimed teaching experience from 5th April 1968 to 4th July 1969, being posted as post-doctoral research fellow, Department of Medicine in G. S. V. M. Medical College, Kanpur. In this connection, Annexure R-2, produced by none other than some of the contesting respondents shows that during the tenure of Fellowship, Dr. Tandon was expected to take part in the teaching and research activities of the College though he would not be treated as part of the regular establishment of the College. Now, if the certificate produced by Dr. Tandon shows that Fellowship included teaching work, it would be unwise to doubt it. Even if 50% of the time spent in these two places is given credit, Dr. Tandon had certainly more than five years teaching experience. The Court is not competent to work out figures with mathematical precision. It can broadly examine the question whether the requirement is satisfied or not. Therefore, he had the requisite teaching/research experience and the Commission was fully justified in treating Dr. Tandon as having requisite teaching/research experience.It thus clearly appears that both Dr. M. C. Gupta and Dr. R. N. Tandon had the requisite qualifications, both academic and experience, and the y were eligible for the post for which they had applied and if they were selected by the Commission and appointed by the Government, no exception can be taken to the same. The High Court was, therefore, in error in interfering with the same. 16.
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specifically teaching experience and credit can b e given to the extent of 50% of the time spent in recognised research as prescribed in the regulation, which experience can be in the same subject, viz., the subject for which the recruitment is being made or in allied subject. So far there is no dispute. The question is: while acquiring research experience, is it incumbent that the person conducting research must also hold of necessity designated post in the regulation ? Now, if general regulation 4 is properly analysed for the purposes of computing research experience, the pre-requisite is that the research must be done after obtaining requisite post- graduate qualification. It has no reference to the post held by the person engaged in research at the time of conducting the research. The heading is teaching/research experience. The dichotomy will have to be applied to teaching and research experience for the purpose of computation. So far as teaching experience is concerned, it must be acquired while holding the post specified in the regulation. But to say that holding of the post is a pre-requisite while conducting research is to read in regulation 4 what is not prescribed thereunder. The specific regulation prescribing qualification will have to be read subject to general regulation 4 and not vice versa. This also becomes manifest from the fact that general regulation 4 also provides that 50% of the teaching experience shall be regular teaching experience meaning thereby that if someone is engaged exclusively in research, he cannot claim to satisfy the teaching experience qualification prescribed in the regulation. Reading specific regulation with general regulation 4, it emerges that teaching experience shall b e acquired while holding the particular post specified therein and the research experience can be taken into account if the person is engaged in research after obtaining post-graduate qualification and it has nothing to do with the holding of the post. One may be engaged as a research scholar and holds no teaching post. The research is hardly related to post though capacity for research is directly related to academic attainment. That has been taken care of. Teaching it indisputably related to t he post because a higher post may entail greater responsibility for coaching in higher classes. This conclusion is reinforced by the language of general regulation 4 which permits recognised research under the Indian Council of Medical Research which body may not have such hierarchical posts of Lecturer or Assistant Professor or Reader. These three designations are to be found in teaching institutions and not in research institutions. If it were, therefore, to be held that even while acquiring research experience one must hold the post of either Reader or Assistant Professor, it would discourage many persons conducting research under the Indian Council of Medical Research. It is, therefore, not possible to agree with the generalisation made by the High Court that teaching/research experience to qualify for the post of Professor must be acquired while working as a Reader or Lecturer.Having cleared the ground about the interpretation of requisite regulations, we must now turn to examine the two individual casesTherefore, we see no justification for rejecting the certificates. It would appear that Dr. Tandon had the teaching experience while holding the post of Assistant Professor of Medicine for a period of four years, six months and one day. The minimum requirement is five yearsWe would next examine one more item of experience claimed by Dr. Tandon in that he was post-doctoral teaching fellow, Department of Medicine, State University of New York at Buffalo from 1st October 1965 to 31st October 1966. Now, undoubtedly this was teaching experience in the same University where he was subsequently Assistant Professor. The grievance is that h e was a Fellow and neither a Lecturer nor an Assistant Professor. What does Fellow in the University connote ? A certificate has been produced, Annexure CA. (page 50, Vol. IV) by Dr. Tandon issued by Eugine I. Lippasch, Professor &Administrative Associate Chairman of the Department of Medicine, State University of New York at Buffalo, dated 13th October 1966, in which it is stated that Dr. Tandon completed one year teaching fellowship in the Division of Cardiology of t he Department of Medicine at the State University of New York at Buffalo and the Buffalo General Hospital on October 31, 1966. It is not very clear what is the equivalent of a Fellow in teaching Hospitals in India but Dr. Tandon has also claimed teaching experience from 5th April 1968 to 4th July 1969, being posted as post-doctoral research fellow, Department of Medicine in G. S. V. M. Medical College, Kanpur. In this connection, Annexure R-2, produced by none other than some of the contesting respondents shows that during the tenure of Fellowship, Dr. Tandon was expected to take part in the teaching and research activities of the College though he would not be treated as part of the regular establishment of the College. Now, if the certificate produced by Dr. Tandon shows that Fellowship included teaching work, it would be unwise to doubt it. Even if 50% of the time spent in these two places is given credit, Dr. Tandon had certainly more than five years teaching experience. The Court is not competent to work out figures with mathematical precision. It can broadly examine the question whether the requirement is satisfied or not. Therefore, he had the requisite teaching/research experience and the Commission was fully justified in treating Dr. Tandon as having requisite teaching/research experience.It thus clearly appears that both Dr. M. C. Gupta and Dr. R. N. Tandon had the requisite qualifications, both academic and experience, and the y were eligible for the post for which they had applied and if they were selected by the Commission and appointed by the Government, no exception can be taken to the same. The High Court was, therefore, in error in interfering with the sameTherefore, we would not take into account the research experience claimed on behalf of Dr. Gupta.
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The State of Bihar & Another Vs. Maharaja Pratap Singh Bahadur | malikana for over a century. The origin of this malikana allowance is not known. From time immemorial it has been customary in Bihar to pay a permanent malikana allowance to ex-proprietors in lieu of their lost proprietary right. Phillips in his Law Relating to the Land Tenures of Lower Bengal, pp. 144, 147, 269, said that the proprietors of the soil in Bihar universally claimed and possessed a right of malikana and he endeavoured in vain to trace its origin in Bihar. The malikana right of the excluded proprietors in Bihar was acknowledged in the Regulations passed on August 8, 1788. At the time of Permanent Settlement, the new grantees were forced to acknowledge this right. (see Baden-Powell, Land-System of British India, Vol. I pp. 516, 517). The Bihar Board of Revenue Misc. Rules 1939, art. 342 p. 166 divides malikana into two classes. Malikana of the first class is for a term of years only,that is, during the currency of a settlement. Malikana of the second class is permanent. It states that"the Bihar malikana falls under this class and is a compensation permanently granted to the proprietors.......It is of a pensionary nature and does not depend upon collections."The permanent malikana is payable at the treasury on April 1, and October 1, every year on presentation of pay orders issued by the Collector accompanied by a life certificate of the recipient.12. There can be no doubt that the malikana payable to the proprietors of the Gidhaur estate is a permanent grant of money in lieu of their proprietary rights in lands originally held by them. The proprietors retained certain estates. On the publication of the notification under Section 3 of the Bihar Land Reforms Act, 1950 the interest of the Maharaja in those estates was extinguished. But the malikana payable to him is not an interest in those estates and did not cease on the issue of the notification.13. Annexure A to the writ application shows that cess was deducted from the malikana. Under Sections 5 and 41 of the Cess Act, 1880 cess is charged on immovable property and is payable by the holder of an estate or tenure or chaukidari chakran lands and by a cultivating raiyat. It is not known under what circumstances cess used to be deducted from the malikana. From the fact that cess was so deducted it is not possible to hold that malikana is an interest in the estates held by the Maharaja.14. In this Court the appellant raised the second contention for the first time. The learned Attorney-General contended that the malikana was payable in respect of certain other estates, that the Maharaja should be regarded as an intermediary of those estates and that on the vesting of those estates in the Government the right to malikana ceased and the Maharaja became entitled to compensation only under Section 24A of the Bihar Land Reforms Act, 1950. The State of Bihar has filed a petition asking for an order admitting certain documents as additional evidence. We have allowed this petition. The first document is a letter of the Collector, Monghyr, stating that the Gidhaur estate was getting malikana in respect of 17 tauzis noted in the margin. The second document is the khewat of those tauzis. They show that various persons other than the Maharaja were the proprietors of the estates comprised in the tauzis. The petition states that all these estates have been notified under Section 3 and have now vested in the State Government. The third document is the notification published on July 24, 1953 showing the estates of which the Maharaja was the proprietor and which have now vested in the State Government. On the publication of the notification under Section 3, all the estates in respect of which the malikana is payable including the interest of any intermediary therein vested in the Government free from all encumbrances. But the Maharaja is not a proprietor, tenure-holder or an intermediary of those estates. The malikana is not rent or income derived from the estates. Nor is his fight to the malikana an encumbrance on them.The Maharajas right to the malikana is not an intermediary interest in the estates and did not vest in the Government. Consequently, he has no right to claim compensation for the malikana under S. 24A. That section provides for determination of compensation payable to the intermediary of a temporarily settled estate in respect of the transference to the Government of the interest of the intermediary in such estate. The Maharaja had no intermediary interest in the estates for the transference of which he could claim any compensation under Section 24A.15. In State of Uttar Pradesh v. Trivikram Narain Singh, 1962-8 SCR 218 at pp. 226, 228 = (AIR 1968 SC 799 at pp. 804-805) this Court held that an allowance of a fixed sum of money computed on the basis of 1/4th share of the net revenue of certain estates payable by the Government to the ex-jagirdars as compensation for abandonment of their right in those estates was not a right or privilege in respect of land in any estate or its land revenue within the meaning of Section 6 (b) of the Uttar Pradesh Zamindari Abolition and Land Reforms Act 1951, and on the issue of a notification vesting those estates in the Government the right to the allowance did not cease. The allowance in that case was described as a pension. It may be that the allowance was not strictly a malikana. Nevertheless the case is instructive. It shows that an allowance paid to ex-jagirdars in consideration of the extinction of their rights in land is not an interest in the land. The permanent malikana stands on the same footing. It is an allowance paid to ex-proprietors for extinguishment of their fight to the estate formerly held by them. It is not an interest in that estate, nor an encumbrance on it, and does not cease on the vesting of the estate in the Government. | 0[ds]5. Learned Attorney-General contended (1) that the right to the malikana was an interest in the estates called the Girdhar estate specified in the notification of July 24,1953 and on the issue of the notification the right to malikana stood extinguished and (2) alternatively, the Maharaja was an intermediary of the Maharaja was an intermediary of temporary settled estates in respect of which the malikana was payable and on the transference of his intermediary interests in those estates, his right to the malikana stood extinguished and he became entitled only to the compensation payable under Sec. 24-A.The proprietors of the Gidhaur estate in Bihar are in receipt of a permanent malikana for over a century. The origin of this malikana allowance is not known. From time immemorial it has been customary in Bihar to pay a permanent malikana allowance to ex-proprietors in lieu of their lost proprietarycan be no doubt that the malikana payable to the proprietors of the Gidhaur estate is a permanent grant of money in lieu of their proprietary rights in lands originally held by them. The proprietors retained certain estates. On the publication of the notification under Section 3 of the Bihar Land Reforms Act, 1950 the interest of the Maharaja in those estates was extinguished. But the malikana payable to him is not an interest in those estates and did not cease on the issue of the notification.In this Court the appellant raised the second contention for the first time. The learned Attorney-General contended that the malikana was payable in respect of certain other estates, that the Maharaja should be regarded as an intermediary of those estates and that on the vesting of those estates in the Government the right to malikana ceased and the Maharaja became entitled to compensation only under Section 24A of the Bihar Land Reforms Act, 1950. The State of Bihar has filed a petition asking for an order admitting certain documents as additional evidence. We have allowed this petition. The first document is a letter of the Collector, Monghyr, stating that the Gidhaur estate was getting malikana in respect of 17 tauzis noted in the margin. The second document is the khewat of those tauzis. They show that various persons other than the Maharaja were the proprietors of the estates comprised in the tauzis. The petition states that all these estates have been notified under Section 3 and have now vested in the State Government. The third document is the notification published on July 24, 1953 showing the estates of which the Maharaja was the proprietor and which have now vested in the State Government. On the publication of the notification under Section 3, all the estates in respect of which the malikana is payable including the interest of any intermediary therein vested in the Government free from all encumbrances. But the Maharaja is not a proprietor, tenure-holder or an intermediary of those estates. The malikana is not rent or income derived from the estates. Nor is his fight to the malikana an encumbrance on them.The Maharajas right to the malikana is not an intermediary interest in the estates and did not vest in the Government. Consequently, he has no right to claim compensation for the malikana under S. 24A. That section provides for determination of compensation payable to the intermediary of a temporarily settled estate in respect of the transference to the Government of the interest of the intermediary in such estate. The Maharaja had no intermediary interest in the estates for the transference of which he could claim any compensation under Section 24A. | 0 | 3,439 | 637 | ### Instruction:
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malikana for over a century. The origin of this malikana allowance is not known. From time immemorial it has been customary in Bihar to pay a permanent malikana allowance to ex-proprietors in lieu of their lost proprietary right. Phillips in his Law Relating to the Land Tenures of Lower Bengal, pp. 144, 147, 269, said that the proprietors of the soil in Bihar universally claimed and possessed a right of malikana and he endeavoured in vain to trace its origin in Bihar. The malikana right of the excluded proprietors in Bihar was acknowledged in the Regulations passed on August 8, 1788. At the time of Permanent Settlement, the new grantees were forced to acknowledge this right. (see Baden-Powell, Land-System of British India, Vol. I pp. 516, 517). The Bihar Board of Revenue Misc. Rules 1939, art. 342 p. 166 divides malikana into two classes. Malikana of the first class is for a term of years only,that is, during the currency of a settlement. Malikana of the second class is permanent. It states that"the Bihar malikana falls under this class and is a compensation permanently granted to the proprietors.......It is of a pensionary nature and does not depend upon collections."The permanent malikana is payable at the treasury on April 1, and October 1, every year on presentation of pay orders issued by the Collector accompanied by a life certificate of the recipient.12. There can be no doubt that the malikana payable to the proprietors of the Gidhaur estate is a permanent grant of money in lieu of their proprietary rights in lands originally held by them. The proprietors retained certain estates. On the publication of the notification under Section 3 of the Bihar Land Reforms Act, 1950 the interest of the Maharaja in those estates was extinguished. But the malikana payable to him is not an interest in those estates and did not cease on the issue of the notification.13. Annexure A to the writ application shows that cess was deducted from the malikana. Under Sections 5 and 41 of the Cess Act, 1880 cess is charged on immovable property and is payable by the holder of an estate or tenure or chaukidari chakran lands and by a cultivating raiyat. It is not known under what circumstances cess used to be deducted from the malikana. From the fact that cess was so deducted it is not possible to hold that malikana is an interest in the estates held by the Maharaja.14. In this Court the appellant raised the second contention for the first time. The learned Attorney-General contended that the malikana was payable in respect of certain other estates, that the Maharaja should be regarded as an intermediary of those estates and that on the vesting of those estates in the Government the right to malikana ceased and the Maharaja became entitled to compensation only under Section 24A of the Bihar Land Reforms Act, 1950. The State of Bihar has filed a petition asking for an order admitting certain documents as additional evidence. We have allowed this petition. The first document is a letter of the Collector, Monghyr, stating that the Gidhaur estate was getting malikana in respect of 17 tauzis noted in the margin. The second document is the khewat of those tauzis. They show that various persons other than the Maharaja were the proprietors of the estates comprised in the tauzis. The petition states that all these estates have been notified under Section 3 and have now vested in the State Government. The third document is the notification published on July 24, 1953 showing the estates of which the Maharaja was the proprietor and which have now vested in the State Government. On the publication of the notification under Section 3, all the estates in respect of which the malikana is payable including the interest of any intermediary therein vested in the Government free from all encumbrances. But the Maharaja is not a proprietor, tenure-holder or an intermediary of those estates. The malikana is not rent or income derived from the estates. Nor is his fight to the malikana an encumbrance on them.The Maharajas right to the malikana is not an intermediary interest in the estates and did not vest in the Government. Consequently, he has no right to claim compensation for the malikana under S. 24A. That section provides for determination of compensation payable to the intermediary of a temporarily settled estate in respect of the transference to the Government of the interest of the intermediary in such estate. The Maharaja had no intermediary interest in the estates for the transference of which he could claim any compensation under Section 24A.15. In State of Uttar Pradesh v. Trivikram Narain Singh, 1962-8 SCR 218 at pp. 226, 228 = (AIR 1968 SC 799 at pp. 804-805) this Court held that an allowance of a fixed sum of money computed on the basis of 1/4th share of the net revenue of certain estates payable by the Government to the ex-jagirdars as compensation for abandonment of their right in those estates was not a right or privilege in respect of land in any estate or its land revenue within the meaning of Section 6 (b) of the Uttar Pradesh Zamindari Abolition and Land Reforms Act 1951, and on the issue of a notification vesting those estates in the Government the right to the allowance did not cease. The allowance in that case was described as a pension. It may be that the allowance was not strictly a malikana. Nevertheless the case is instructive. It shows that an allowance paid to ex-jagirdars in consideration of the extinction of their rights in land is not an interest in the land. The permanent malikana stands on the same footing. It is an allowance paid to ex-proprietors for extinguishment of their fight to the estate formerly held by them. It is not an interest in that estate, nor an encumbrance on it, and does not cease on the vesting of the estate in the Government.
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5. Learned Attorney-General contended (1) that the right to the malikana was an interest in the estates called the Girdhar estate specified in the notification of July 24,1953 and on the issue of the notification the right to malikana stood extinguished and (2) alternatively, the Maharaja was an intermediary of the Maharaja was an intermediary of temporary settled estates in respect of which the malikana was payable and on the transference of his intermediary interests in those estates, his right to the malikana stood extinguished and he became entitled only to the compensation payable under Sec. 24-A.The proprietors of the Gidhaur estate in Bihar are in receipt of a permanent malikana for over a century. The origin of this malikana allowance is not known. From time immemorial it has been customary in Bihar to pay a permanent malikana allowance to ex-proprietors in lieu of their lost proprietarycan be no doubt that the malikana payable to the proprietors of the Gidhaur estate is a permanent grant of money in lieu of their proprietary rights in lands originally held by them. The proprietors retained certain estates. On the publication of the notification under Section 3 of the Bihar Land Reforms Act, 1950 the interest of the Maharaja in those estates was extinguished. But the malikana payable to him is not an interest in those estates and did not cease on the issue of the notification.In this Court the appellant raised the second contention for the first time. The learned Attorney-General contended that the malikana was payable in respect of certain other estates, that the Maharaja should be regarded as an intermediary of those estates and that on the vesting of those estates in the Government the right to malikana ceased and the Maharaja became entitled to compensation only under Section 24A of the Bihar Land Reforms Act, 1950. The State of Bihar has filed a petition asking for an order admitting certain documents as additional evidence. We have allowed this petition. The first document is a letter of the Collector, Monghyr, stating that the Gidhaur estate was getting malikana in respect of 17 tauzis noted in the margin. The second document is the khewat of those tauzis. They show that various persons other than the Maharaja were the proprietors of the estates comprised in the tauzis. The petition states that all these estates have been notified under Section 3 and have now vested in the State Government. The third document is the notification published on July 24, 1953 showing the estates of which the Maharaja was the proprietor and which have now vested in the State Government. On the publication of the notification under Section 3, all the estates in respect of which the malikana is payable including the interest of any intermediary therein vested in the Government free from all encumbrances. But the Maharaja is not a proprietor, tenure-holder or an intermediary of those estates. The malikana is not rent or income derived from the estates. Nor is his fight to the malikana an encumbrance on them.The Maharajas right to the malikana is not an intermediary interest in the estates and did not vest in the Government. Consequently, he has no right to claim compensation for the malikana under S. 24A. That section provides for determination of compensation payable to the intermediary of a temporarily settled estate in respect of the transference to the Government of the interest of the intermediary in such estate. The Maharaja had no intermediary interest in the estates for the transference of which he could claim any compensation under Section 24A.
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Securities and Exchange Board of India and Ors Vs. Kanaiyalal Baldevbhai Patel and Ors | but must account to his principal for any profits derived therefrom. Diamond v. Oreamuno, 24 N.Y.2d 494, 497, 301 N.Y.S.2d 78, 80, 248 N.E.2d 910, 912 (1969); see also Restatement (Second) of Agency §§ 388, Comment c, 396(c) (1958). We have little trouble in holding that the conspiracy here to trade on the Journals confidential information is not outside the reach of the mail and wire fraud statutes, provided the other elements of the offenses are satisfied. The Journals business information that it intended to be kept confidential was its property; the declaration to that effect in the employee manual merely removed any doubts on that score and made the finding of specific intent to defraud that much easier. Winans continued in the employ of the Journal, appropriating its confidential business information for his own use, all the while pretending to perform his duty of safeguarding it. In fact, he told his editors twice about leaks of confidential information not related to the stock-trading scheme, 612 F. Supp., at 831, demonstrating both his knowledge that the Journal viewed information concerning the Heard column as confidential and his deceit as he played the role of a loyal employee. 39. In Vincent F. Chiarella v. United States 445 U.S. 222 (1980), the United States Supreme Court was seized of the matter relating to securities fraud Under Section 10b of the Securities Exchange Act, 1934. The Petitioner therein was a printer of some corporate takeover bids. Despite attempts by the companies to conceal the names of the takeover targets, Chiarella was able to deduce, and he traded shares of the companies he knew were involved. Consequently he was convicted by the lower forum as he traded in target companies without informing its shareholders of his knowledge of proposed takeover. The Supreme Court while reversing his conviction, observed as under- the Petitioner employee could not be convicted on theory of failure to disclose his knowledge to stockholders or target companies as he was under no duty to speak, in that he had no prior dealings with the stockholders and was not their agent or fiduciary and was not a person in whom sellers had placed their trust and confidence, but dealt with them only through impersonal market transactions. On the issue of General Duty between all participants (Tippees), the Court stated that: Formulation of a general duty between all participants in market transactions for forego actions based on material, nonpublic information, so as to give rise to liability Under Section 10(b) of Securities Exchange Act for failure to disclose, would depart radically from established doctrine that a duty arises from a specific relationship between two parties and should not be undertaken absent some explicit evidence of congressional intent. Securities Exchange Act of 1934, § 10(b) as amended 15 U.S.C.A. § 78j(b). 40. Although excessive reliance on foreign jurisprudence may not be necessary as we have starkly deviated in many aspects from American jurisprudence, but we need to keep in mind the developments which other countries have undertaken regarding this issue. 41. Now we come back to the Regulations 3 and 4 (1) which bars persons from dealing in securities in a fraudulent manner or indulging in unfair trade practice. Fairness in financial markets is often expressed in terms of level playing field. A playing field may be uneven because of varied reasons such as inequalities in information etc. Possession of different information, which is a pervasive feature of markets, may not always be objectionable. Indeed, investors who invest resources in acquiring superior information are entitled to exploit this advantage, thereby making markets more efficient. The unequal possession of information is fraudulent only when the information has been acquired in bad faith and thereby inducing an inequitable result for others. 42. The law of confidentiality has a bearing on this case instant. Confidential information acquired or compiled by a corporation in the course and conduct of its business is a species of property to which the corporation has the exclusive right and benefit, and which a court of equity will protect through the injunctive process or other appropriate remedy. (3 W. Fletcher, Cyclopedia of Law of Private Corporations § 857.1, p. 260 (rev. ed. 1986)) The information of possible trades that the company is going to undertake is the confidential information of the company concerned, which it has absolute liberty to deal with. Therefore, a person conveying confidential information to another person (tippee) breaches his duty prescribed by law and if the recipient of such information knows of the breach and trades, and there is an inducement to bring about an inequitable result, then the recipient tippee may be said to have committed the fraud. 43. Accordingly, non-intermediary front running may be brought under the prohibition prescribed Under Regulations 3 and 4 (1), for being fraudulent or unfair trade practice, provided that the ingredients under those heads are satisfied as discussed above. From the above analysis, it is clear that in order to establish charges against tippee, Under Regulations 3 (a), (b), (c) and (d) and 4 (1) of FUTP 2003, one needs to prove that a person who had provided the tip was under a duty to keep the non-public information under confidence, further such breach of duty was known to the tippee and he still trades thereby defrauding the person, whose orders were front-runned, by inducing him to deal at the price he did. 44. Taking into consideration the facts and circumstances of the case before us and the law laid down herein above and SEBI v. Kishore R. Ajmera (Supra) can only lead to one conclusion that concerned parties to the transaction were involved in an apparent fraudulent practice violating market integrity. The parting of information with regard to an imminent bulk purchase and the subsequent transaction thereto are so intrinsically connected that no other conclusion but one of joint liability of both the initiator of the fraudulent practice and the other party who had knowingly aided in the same is possible. | 1[ds]8. Indisputably, the object and purpose of this Regulation (FUTP 2003) is to safeguard the investing public and honest businessmen. The aim is to prevent exploitation of the public by fraudulent schemes and worthless securities through misrepresentation, to place adequate and true information before the investor, to protect honest enterprises seeking capital by accurate disclosure, to prevent exploitation against the competition afforded by dishonest securities offered to the public and to restore the confidence of the prospective investor in his ability to select sound securities.11. It is important to note that SEBI has amended the Regulation, a number of times, to keep up with the technology and times.12. Although aforesaid amendments are made to the Regulation, yet such amendments sometimes fail to live up to human ingenuity and growth of technology. Usurpation of reprehensible profits by fraudsters, who are not entitled to them, must be made answerable by this Court as per established tenants of Rule of law without leaving incentives for fraudulent practices, based on creativity of disingenuous, to survive the legal gambits.Before embarking upon the necessary discussions, I would like to record my views on a somewhat unclear picture that emerge from undefined concepts contained in the Act and the Regulations framed there under, a comprehensive legislation can bring about more clarity and certainty on these aspects.19. In actuality, front-running is more complicated than these definitions suggest. It comprises of at least three forms of conduct. They are: (1) trading by third parties who are tipped on an impending block trade (tippee trading); (2) transactions in which the owner or purchaser of the block trade himself engages in the offsetting futures or options transaction as a means of hedging against price fluctuations caused by the block transaction (self-front-running); and (3) transactions where a intermediary with knowledge of an impending customer block order trades ahead of that order for the intermediarys own profit (trading ahead). In this batch of appeals we are concerned with the first and the last types of trade i.e., tippee trading and trading ahead. It is important to note that trading ahead has been explicitly recognized Under Regulation 4(2)(q) of FUTP 2003.Although strict construction is well established principle when interpreting a penal provision, but such interpretation should not result in incongruence when compared with the purpose of the Regulation. In SEBI v. Kishore R. Ajmera, this Court observed that-the SEBI Act and the Regulations framed there under are intended to protect the interests of investors in the Securities Market which has seen substantial growth in tune with the parallel developments in the economy. Investors confidence in the Capital/Securities Market is a reflection of the effectiveness of the regulatory mechanism in force. All such measures are intended to preempt manipulative trading and check all kinds of impermissible conduct in order to boost the investors confidence in the Capital market. The primary purpose of the statutory enactments is to provide an environment conductive to increased participation and investment in the securities market which is vital to the growth and development of the economy. The provisions of the SEBI Act and the Regulations will, therefore, have to be understood and interpreted in the above light.(SEBI v. Kishore R. Ajmera, (2016) 6 SCC 368 )21. The object and purpose of FUTP 2003 is to curb market manipulations. Market manipulation is normally regarded as an unwarranted interference in the operation of ordinary market forces of supply and demand and thus undermines the integrity and efficiency of the market.(almers Company Law, 25th Edition (2010), Volume 2 at page 11097; Gower & Davies – Principles of Modern Company Law, 9th Edition (2012) at page 1160.) This Court in N. Narayanan v. adjudicating Officer, SEBI(2013) 12 SCC 152 , has laid down that-Prevention of market abuse and preservation of market integrity is the hallmark of Securities Law. Section 12A read with Regulations 3 and 4 of the Regulations 2003 essentially intended to preserve market integrity and to prevent Market abuse. The object of the SEBI Act is to protect the interest of investors in securities and to promote the development and to regulate the securities market, so as to promote orderly, healthy growth of securities market and to promote investors protection. Securities market is based on free and open access to information, the integrity of the market is predicated on the quality and the manner on which it is made available to market. Market abuse impairs economic growth and erodes investors confidence. Market abuse refers to the use of manipulative and deceptive devices, giving out incorrect or misleading information, so as to encourage investors to jump into conclusions, on wrong premises, which is known to be wrong to the abusers. The statutory provisions mentioned earlier deal with the situations where a person, who deals in securities, takes advantage of the impact of an action, may be manipulative, on the anticipated impact on the market resulting in the creation of artificiality.22. From the line of decisions cited herein above, it can be inferred that as a matter of principle, while interpreting this Regulation, the court must weigh against an interpretation which will protect unjust claims over just, fraud over legality and expediency over principle. Once this Rule is clearly established, individual cases should not pose any problem.23. It is equally well settled that in interpreting a statute, effort should be made to give effect to each and every word used by the Legislature. The Courts should presume that the Legislature inserted every part for a purpose and the legislative intention is that every part of the statute should have effect. It must be kept in mind that whenever this Court is seized with a matter which requires judicial mind to be applied for interpreting a law, the effort must always be made to realize the true intention behind the law.24. Before dealing with the legal issue we are seized with, it would be important to observe certain definition as occurring under the Regulations. The definition of dealing in securities acquires some importance as charge Under Regulation 3 completely depends on the aspect whether the tippee was dealing in securities in the first instant or not. For a transaction to be termed as dealing in securities, following ingredients need to be satisfied-1. includes an act of buying, selling or subscribing pursuant to any issue of any security, or2. Agreeing to buy, sell or subscribe to any issue of any security, or;3. Otherwise transacting in any way in any security by any person as principal, agent or intermediary referred to in Section 12 of the Act.25. The definition of dealing in securities is broad and inclusive in nature. Under the old regime the usage of term to mean has been changed to includes, which prima facie indicates that the definition is broad. Moreover, the inclusion of term otherwise transacting itself provides an internal evidence for being broadly worded so as to include situations such as the present one.26. There is no dispute as to the fact that fraud is jurisprudentially very difficult to define or cloth it with particular ingredients. A generalized meaning may be difficult to be attributed, as human ingenuity would invent ways to bypass such behaviour. It is to be noted that fraud is extensively used in various regulatory framework which mandates me to take notice of the conceptual and definitional problem it brings along. Fraud is among the most serious, costly, stigmatizing, and punitive forms of liability imposed in modern corporations and financial markets. Usually, the antifraud provisions of the security laws are not coextensive with common-law doctrines of fraud as common-law fraud doctrines are too restrictive to deal with the complexities involved in the security market, which is also portrayed by the changes brought in through the 2003 Regulation to the 1995 Regulation.27. On a comparative analysis of the definition of fraud as existing in the 1995 Regulation and the subsequent amendments in the 2003 Regulations, it can be seen that the original definition of fraud under the FUTP Regulation, 1995 adopts the definition of fraud from the Indian Contract Act, 1872 whereas the subsequent definition in the 2003 Regulation is a variation of the same and does not adopt the strict definition of fraud as present under the Indian Contract Act. It includes many situations which may not be a fraud under the Contract Act or the 1995 Regulation, but nevertheless amounts to a fraud under the 2003 Regulation.28. The definition of fraud under Clause (c) of Regulation 2 has two parts; first part may be termed as catch all provision while the second part includes specific instances which are also included as part and parcel of term fraud. The ingredients of the first part of the definition are-1. includes an act, expression, omission or concealment whether in a deceitful manner or not;2. By a person or by any other person with his connivance or his agent while dealing in securities;3. So that the same induces another person or his agent to deal in securities;4. Whether or not there is any wrongful gain or avoidance of any loss.The second part of the definition includes specific instances-(1) a knowing misrepresentation of the truth or concealment of material fact in order that another person may act to his detriment;(2) a suggestion as to a fact which is not true by one who does not believe it to be true;(3) an active concealment of a fact by a person having knowledge or belief of the fact;(4) a promise made without any intention of performing it;(5) a representation made in a reckless and careless manner whether it be true or false;(6) any such act or omission as any other law specifically declares to be fraudulent,(7) deceptive behavior by a person depriving another of informed consent or full participation.(8) a false statement made without reasonable ground for believing it to be true.(9) The act of an issuer of securities giving out misinformation that affects the market price of the security, resulting in investors being effectively misled even though they did not rely on the statement itself or anything derived from it other than the market price.29. Although unfair trade practice has not been defined under the Regulation, various other legislations in India have defined the concept of unfair trade practice in different contexts. A clear cut generalized definition of the unfair trade practice may not be possible to be culled out from the aforesaid definitions. Broadly trade practice is unfair if the conduct undermines the ethical standards and good faith dealings between parties engaged in business transactions. It is to be noted that unfair trade practices are not subject to a single definition; rather it requires adjudication on case to case basis. Whether an act or practice is unfair is to be determined by all the facts and circumstances surrounding the transaction. In the context of this Regulation a trade practice may be unfair, if the conduct undermines the good faith dealings involved in the transaction. Moreover the concept of unfairness appears to be broader than and includes the concept of deception or fraud.30. Although learned Counsel for SEBI has admitted that there is no difference between fraud and unfair trade practice Under Regulation 4 (1), but we are of the opinion that such submission may not be conclusive. As these cases do not require further investigation, the question regarding the scope of prosecution for unfair trade practice is kept open.31. Regulation 3 prohibits a person from committing fraud while dealing in securities. A reading of the aforesaid provision describes the width of the power vested with the SEBI to regulate the security market. In our view, the words employed in the aforesaid provisions are of wide amplitude and would therefore take within its sweep the inducement to bring about inequitable result which has happened in this case instant.32. Regulation 4 prohibits manipulative, fraudulent and unfair trade practices. It is to be noted that the Regulation 4 (1) starts with the phrase without prejudice to the provisions of Regulation 3. This phrase acquires significance as it portrays that the prohibitions covered under the Regulation 3 do not bar the prosecution Under Regulation 4 (1). Therefore Regulation 4 (1) has to be read to have its own ambit which adds to what is contained Under Regulation 3.Under the provisions of Regulation 4(2)(q), only intermediary trading on the information of substantial client order, if it involves fraud then the dealing in securities will be deemed to be fraudulent.34. An argument has been introduced by the Mr. K.T.S. Tulsi, learned senior Counsel, that Sub-clause (q) of Regulation 4(2) includes only front-running by the intermediaries, by implication it means that any persons other than intermediaries are excluded from the rigors of law. In our opinion such submission cannot be sustained in the eyes of law as the intention of the legislation was to provide for a catchall provision and the deeming provision under Sub-clause (q) of Regulation 4(2) was specifically provided as the intermediary are in fiduciary relationship with the clients. There is no dispute as to the fact that a fiduciary must act in utmost good faith; he should not act for his own benefit or benefit of any third party without the informed consent of his client. The essential irreducible core of fiduciary duty is the duty of loyalty (SEBI (Stock Brokers and Sub-brokers) Regulations, 1992, Schedule II.). Such heightened standard demanded a deeming provision under the FUTP 2003.35. The reliance on expressio unius est exclusio alterius may not be appropriate in this case instant as the intention of the Regulation is apparent in this case. Moreover, it has been well established that expressio unius est exclusio alterius is not a Rule of law but a tool of interpretation which must be cautiously applied. (Colquhoun v. Brooks, (1887) 19 Q.B.D. 400; Lowe v. Darling & Sons, (1906) 2 K. B. 772) In light of the above discussion, this Rule of interpretation does not help the case of the violators.36. A crucial aspect which needs to be observed at this point is the element of causation which is embedded Under Regulation 2(1)(c) read with Regulations 3 and 4.In order to establish the aforesaid charges in this case, it is required by the SEBI to establish that the harm was induced by the materialization of a risk that was not disclosed because of the tippees fraudulent practice. Further the charges under the FUTP 2003 needs to be established as per the applicable standards rather than on mere conjectures and surmises.37. It should be noted that the provisions of Regulations 3 (a), (b), (c), (d) and 4(1) are couched in general terms to cover diverse situations and possibilities. Once a conclusion, that fraud has been committed while dealing in securities, is arrived at, all these provisions get attracted in a situation like the one under consideration. We are not inclined to agree with the submission that SEBI should have identified as to which particular provision of FUTP 2003 Regulations has been violated. A pigeon-hole approach may not be applicable in this case instant.41. Now we come back to the Regulations 3 and 4 (1) which bars persons from dealing in securities in a fraudulent manner or indulging in unfair trade practice.Fairness in financial markets is often expressed in terms of level playing field. A playing field may be uneven because of varied reasons such as inequalities in information etc. Possession of different information, which is a pervasive feature of markets, may not always be objectionable. Indeed, investors who invest resources in acquiring superior information are entitled to exploit this advantage, thereby making markets more efficient. The unequal possession of information is fraudulent only when the information has been acquired in bad faith and thereby inducing an inequitable result for others.42. The law of confidentiality has a bearing on this case instant. Confidential information acquired or compiled by a corporation in the course and conduct of its business is a species of property to which the corporation has the exclusive right and benefit, and which a court of equity will protect through the injunctive process or other appropriate remedy. (3 W. Fletcher, Cyclopedia of Law of Private Corporations § 857.1, p. 260 (rev. ed. 1986)) The information of possible trades that the company is going to undertake is the confidential information of the company concerned, which it has absolute liberty to deal with. Therefore, a person conveying confidential information to another person (tippee) breaches his duty prescribed by law and if the recipient of such information knows of the breach and trades, and there is an inducement to bring about an inequitable result, then the recipient tippee may be said to have committed the fraud.43. Accordingly, non-intermediary front running may be brought under the prohibition prescribed Under Regulations 3 and 4 (1), for being fraudulent or unfair trade practice, provided that the ingredients under those heads are satisfied as discussed above. From the above analysis, it is clear that in order to establish charges against tippee, Under Regulations 3 (a), (b), (c) and (d) and 4 (1) of FUTP 2003, one needs to prove that a person who had provided the tip was under a duty to keep the non-public information under confidence, further such breach of duty was known to the tippee and he still trades thereby defrauding the person, whose orders were front-runned, by inducing him to deal at the price he did.44. Taking into consideration the facts and circumstances of the case before us and the law laid down herein above and SEBI v. Kishore R. Ajmera (Supra) can only lead to one conclusion that concerned parties to the transaction were involved in an apparent fraudulent practice violating market integrity. The parting of information with regard to an imminent bulk purchase and the subsequent transaction thereto are so intrinsically connected that no other conclusion but one of joint liability of both the initiator of the fraudulent practice and the other party who had knowingly aided in the same is possible. | 1 | 7,453 | 3,370 | ### 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.
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but must account to his principal for any profits derived therefrom. Diamond v. Oreamuno, 24 N.Y.2d 494, 497, 301 N.Y.S.2d 78, 80, 248 N.E.2d 910, 912 (1969); see also Restatement (Second) of Agency §§ 388, Comment c, 396(c) (1958). We have little trouble in holding that the conspiracy here to trade on the Journals confidential information is not outside the reach of the mail and wire fraud statutes, provided the other elements of the offenses are satisfied. The Journals business information that it intended to be kept confidential was its property; the declaration to that effect in the employee manual merely removed any doubts on that score and made the finding of specific intent to defraud that much easier. Winans continued in the employ of the Journal, appropriating its confidential business information for his own use, all the while pretending to perform his duty of safeguarding it. In fact, he told his editors twice about leaks of confidential information not related to the stock-trading scheme, 612 F. Supp., at 831, demonstrating both his knowledge that the Journal viewed information concerning the Heard column as confidential and his deceit as he played the role of a loyal employee. 39. In Vincent F. Chiarella v. United States 445 U.S. 222 (1980), the United States Supreme Court was seized of the matter relating to securities fraud Under Section 10b of the Securities Exchange Act, 1934. The Petitioner therein was a printer of some corporate takeover bids. Despite attempts by the companies to conceal the names of the takeover targets, Chiarella was able to deduce, and he traded shares of the companies he knew were involved. Consequently he was convicted by the lower forum as he traded in target companies without informing its shareholders of his knowledge of proposed takeover. The Supreme Court while reversing his conviction, observed as under- the Petitioner employee could not be convicted on theory of failure to disclose his knowledge to stockholders or target companies as he was under no duty to speak, in that he had no prior dealings with the stockholders and was not their agent or fiduciary and was not a person in whom sellers had placed their trust and confidence, but dealt with them only through impersonal market transactions. On the issue of General Duty between all participants (Tippees), the Court stated that: Formulation of a general duty between all participants in market transactions for forego actions based on material, nonpublic information, so as to give rise to liability Under Section 10(b) of Securities Exchange Act for failure to disclose, would depart radically from established doctrine that a duty arises from a specific relationship between two parties and should not be undertaken absent some explicit evidence of congressional intent. Securities Exchange Act of 1934, § 10(b) as amended 15 U.S.C.A. § 78j(b). 40. Although excessive reliance on foreign jurisprudence may not be necessary as we have starkly deviated in many aspects from American jurisprudence, but we need to keep in mind the developments which other countries have undertaken regarding this issue. 41. Now we come back to the Regulations 3 and 4 (1) which bars persons from dealing in securities in a fraudulent manner or indulging in unfair trade practice. Fairness in financial markets is often expressed in terms of level playing field. A playing field may be uneven because of varied reasons such as inequalities in information etc. Possession of different information, which is a pervasive feature of markets, may not always be objectionable. Indeed, investors who invest resources in acquiring superior information are entitled to exploit this advantage, thereby making markets more efficient. The unequal possession of information is fraudulent only when the information has been acquired in bad faith and thereby inducing an inequitable result for others. 42. The law of confidentiality has a bearing on this case instant. Confidential information acquired or compiled by a corporation in the course and conduct of its business is a species of property to which the corporation has the exclusive right and benefit, and which a court of equity will protect through the injunctive process or other appropriate remedy. (3 W. Fletcher, Cyclopedia of Law of Private Corporations § 857.1, p. 260 (rev. ed. 1986)) The information of possible trades that the company is going to undertake is the confidential information of the company concerned, which it has absolute liberty to deal with. Therefore, a person conveying confidential information to another person (tippee) breaches his duty prescribed by law and if the recipient of such information knows of the breach and trades, and there is an inducement to bring about an inequitable result, then the recipient tippee may be said to have committed the fraud. 43. Accordingly, non-intermediary front running may be brought under the prohibition prescribed Under Regulations 3 and 4 (1), for being fraudulent or unfair trade practice, provided that the ingredients under those heads are satisfied as discussed above. From the above analysis, it is clear that in order to establish charges against tippee, Under Regulations 3 (a), (b), (c) and (d) and 4 (1) of FUTP 2003, one needs to prove that a person who had provided the tip was under a duty to keep the non-public information under confidence, further such breach of duty was known to the tippee and he still trades thereby defrauding the person, whose orders were front-runned, by inducing him to deal at the price he did. 44. Taking into consideration the facts and circumstances of the case before us and the law laid down herein above and SEBI v. Kishore R. Ajmera (Supra) can only lead to one conclusion that concerned parties to the transaction were involved in an apparent fraudulent practice violating market integrity. The parting of information with regard to an imminent bulk purchase and the subsequent transaction thereto are so intrinsically connected that no other conclusion but one of joint liability of both the initiator of the fraudulent practice and the other party who had knowingly aided in the same is possible.
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of Regulation 3. This phrase acquires significance as it portrays that the prohibitions covered under the Regulation 3 do not bar the prosecution Under Regulation 4 (1). Therefore Regulation 4 (1) has to be read to have its own ambit which adds to what is contained Under Regulation 3.Under the provisions of Regulation 4(2)(q), only intermediary trading on the information of substantial client order, if it involves fraud then the dealing in securities will be deemed to be fraudulent.34. An argument has been introduced by the Mr. K.T.S. Tulsi, learned senior Counsel, that Sub-clause (q) of Regulation 4(2) includes only front-running by the intermediaries, by implication it means that any persons other than intermediaries are excluded from the rigors of law. In our opinion such submission cannot be sustained in the eyes of law as the intention of the legislation was to provide for a catchall provision and the deeming provision under Sub-clause (q) of Regulation 4(2) was specifically provided as the intermediary are in fiduciary relationship with the clients. There is no dispute as to the fact that a fiduciary must act in utmost good faith; he should not act for his own benefit or benefit of any third party without the informed consent of his client. The essential irreducible core of fiduciary duty is the duty of loyalty (SEBI (Stock Brokers and Sub-brokers) Regulations, 1992, Schedule II.). Such heightened standard demanded a deeming provision under the FUTP 2003.35. The reliance on expressio unius est exclusio alterius may not be appropriate in this case instant as the intention of the Regulation is apparent in this case. Moreover, it has been well established that expressio unius est exclusio alterius is not a Rule of law but a tool of interpretation which must be cautiously applied. (Colquhoun v. Brooks, (1887) 19 Q.B.D. 400; Lowe v. Darling & Sons, (1906) 2 K. B. 772) In light of the above discussion, this Rule of interpretation does not help the case of the violators.36. A crucial aspect which needs to be observed at this point is the element of causation which is embedded Under Regulation 2(1)(c) read with Regulations 3 and 4.In order to establish the aforesaid charges in this case, it is required by the SEBI to establish that the harm was induced by the materialization of a risk that was not disclosed because of the tippees fraudulent practice. Further the charges under the FUTP 2003 needs to be established as per the applicable standards rather than on mere conjectures and surmises.37. It should be noted that the provisions of Regulations 3 (a), (b), (c), (d) and 4(1) are couched in general terms to cover diverse situations and possibilities. Once a conclusion, that fraud has been committed while dealing in securities, is arrived at, all these provisions get attracted in a situation like the one under consideration. We are not inclined to agree with the submission that SEBI should have identified as to which particular provision of FUTP 2003 Regulations has been violated. A pigeon-hole approach may not be applicable in this case instant.41. Now we come back to the Regulations 3 and 4 (1) which bars persons from dealing in securities in a fraudulent manner or indulging in unfair trade practice.Fairness in financial markets is often expressed in terms of level playing field. A playing field may be uneven because of varied reasons such as inequalities in information etc. Possession of different information, which is a pervasive feature of markets, may not always be objectionable. Indeed, investors who invest resources in acquiring superior information are entitled to exploit this advantage, thereby making markets more efficient. The unequal possession of information is fraudulent only when the information has been acquired in bad faith and thereby inducing an inequitable result for others.42. The law of confidentiality has a bearing on this case instant. Confidential information acquired or compiled by a corporation in the course and conduct of its business is a species of property to which the corporation has the exclusive right and benefit, and which a court of equity will protect through the injunctive process or other appropriate remedy. (3 W. Fletcher, Cyclopedia of Law of Private Corporations § 857.1, p. 260 (rev. ed. 1986)) The information of possible trades that the company is going to undertake is the confidential information of the company concerned, which it has absolute liberty to deal with. Therefore, a person conveying confidential information to another person (tippee) breaches his duty prescribed by law and if the recipient of such information knows of the breach and trades, and there is an inducement to bring about an inequitable result, then the recipient tippee may be said to have committed the fraud.43. Accordingly, non-intermediary front running may be brought under the prohibition prescribed Under Regulations 3 and 4 (1), for being fraudulent or unfair trade practice, provided that the ingredients under those heads are satisfied as discussed above. From the above analysis, it is clear that in order to establish charges against tippee, Under Regulations 3 (a), (b), (c) and (d) and 4 (1) of FUTP 2003, one needs to prove that a person who had provided the tip was under a duty to keep the non-public information under confidence, further such breach of duty was known to the tippee and he still trades thereby defrauding the person, whose orders were front-runned, by inducing him to deal at the price he did.44. Taking into consideration the facts and circumstances of the case before us and the law laid down herein above and SEBI v. Kishore R. Ajmera (Supra) can only lead to one conclusion that concerned parties to the transaction were involved in an apparent fraudulent practice violating market integrity. The parting of information with regard to an imminent bulk purchase and the subsequent transaction thereto are so intrinsically connected that no other conclusion but one of joint liability of both the initiator of the fraudulent practice and the other party who had knowingly aided in the same is possible.
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Karimtharuvi Tea Estates Limited, Kottayam & Another Vs. State of Kerala & Others | be different and higher than such agricultural income when calculated in accordance with the provisions of the Income-tax Act and rule 24.The different provisions of an Act are to be construed in such manner as to make them harmonious. Explanation 2 to S. 5 should be so construed as makes it harmonious with Explanation to sub-cl. (2) of cl. (a) of S. 2 of the Agricultural Income-tax Act which provides a special definition for agricultural income for tea plantations; such income being that portion of the income derived from land by the cultivation manufacture and sale of tea as is defined to toe agricultural income for the purposes of the enactments relating to Indian income-tax. Explanation 2, if applied to income from tea, would create an agricultural income which is not contemplated by the Income-tax Act and the Constitution and would then be void. Though wide in terms Explanation 2 to S. 5 should therefore be construed not to apply to the computation of agricultural income derived from land by the cultivation of tea. Such a construction would made it harmonious with the Explanation to sub-cl. (2) of cl. (a) of S. 2 of the Agricultural Income-tax Act.12. It is true, as urged for respondents that the State Legislature has full freedom to enact such provisions as it considers fit in respect of tax on agricultural income and that such power includes the power to enact for matters subsidiary and incidental to the taxation of agricultural income. We also agree that the State Legislature is free to provide the method of computation of the taxable agricultural income and is free to allow any particular deductions from the gross income as it considers fit. It is not disputed for the respondent that the power of the State Legislature to enact a law in respect of agricultural income relates only to such agricultural income as is defined in Art. 366 of the Constitution.13. It is however urged that for the purpose of this definition, one has to look to the definition of Agricultural income in the Income-tax Act and not to the rules made thereunder. We do not agree. Agricultural income as defined in the Constitution means agricultural income for the purpose of the enactments relating to income-tax. One such enactment is the Income-tax Act. Rule 24 of the Income-tax Rules has been made under the powers conferred by S. 59 of the Income-tax Act and has effect as if enacted in that Act. When S. 59 of the Income-tax Act provides for the rules made under that Act to prescribe the proportions of income from business, and income from agriculture in the entire income derived in part from agriculture and in part from business, the proportion so prescribed must be taken to be prescribed by the Act. These rule were in existence in 1950 when the Constitution incorporated the definition of agricultural income from the Income-tax Act by reference. The definition of the term was bound up with the rules.14. It has been further submitted for the respondents that cl. (xv) of sub-s. (2) of S. 10 of the Income-tax Act is a general provision and should give way to the special provision of the agricultural Income-tax Act with respect to the deductions from the gross income for the purpose of computing the agricultural income. This cannot be, as we have to take the definition of agricultural income from what it is in the Income-tax Act. The provisions of the Income-tax Act and the rules made thereunder will control the provisions of the Agricultural Income-tax Act enacted by a State Legislature.15. The contention that the amount spent for the upkeep and maintenance of the immature plants till they become mature is in the nature of a capital expenditure is also not sound. It is a running expenditure and not of the nature of capital expenditure.16. It is further contended that if such expenditure be held to be deductible expenditure, the proviso to rule 24 would be redundant. Again, we do not agree. The proviso allows the deductions of the cost of planting bushes in replacement of bushes which died or became permanently useless in an area already planted. It deals with the cost of planting bushes and not with the expenses incurred in the upkeep and maintenance of bushes already planted. These petitions are not with respect to the expenses incurred in the planting of immature tea bushes but are with respect to expenses incurred in the upkeep and maintenance of immature plants.17. We therefore construe Explanation 2 to S. 5 of the Agricultural income-tax Act not to extend to the computation of agricultural income derived from tea plantations and hold that in computing such agricultural income for the purpose of taxation under the Agricultural Income-tax Act, the explanation to S. 2 of that Act must be kept in mind and the income must be taken to be as defined for the purposes of the enactments relating to Indian income-tax.18. In view of our opinion it is not necessary to consider the other contention for the petitioner that Explanation 2 to S. 5 is discriminatory and contravenes the provisions of Art. 14 of the Constitution.19. We therefore allow these petitions to this extent that we declare that Explanation 2 to S. 5 of the Agricultural Income-tax Act added by the Amendment Act does not cover the expenses incurred in the upkeep or maintenance of immature tea plants from which no income has been derived during an accounting year and that the agricultural income derived from tea plantation will be computed in accordance with the provisions of the Income-tax Act and the Income-tax Rules. We order that a writ be issued to the respondents restraining them, their agents and servants from enforcing or acting upon the provisions of Explanation 2 to S. 5 of the Agricultural Income-tax Act against the Karimtharuvi Tea Estates Ltd., Kottayam, viz., petitioner No. 1. We direct the respondents to pay the costs of petitioner No.1, one set. | 1[ds]This definition practically conforms to the definition of agricultural income in(a) and (b) of cl. (1) of S. 2 of theAct. The Explanation added in the definition of agricultural income in the AgriculturalAct in substance adopts what has been provided in rule 24 of theRules about the proportion of agricultural income from tea plantations. It follows therefore that agricultural income from tea plantations is to be computed in the same manner as it is computed under the provisions of theAct.10. Sec. 5 of the AgriculturalAct provides for certain deductions to be made in the computation of the agricultural income of person and its cl. (j) provides for the deduction of any expenditure not being in the nature of capital expenditure or personal expenses of the assessee laid out or expended wholly or exclusively for the purpose of deriving the agricultural income. This clause corresponds to cl. (xv) of(2) of S. 10 of theAct. The proviso at the end of the various clauses of S. 5 states that no deduction shall be made under that section if it has already been made in the assessment under theAct. This avoids a double deduction.11. Now Explanation 2 added to S. 5 by the Amendment Act takes away the advantage of the provisions of cl. (j) of S. 5with respect to theexpenses incurred in the upkeep and maintenance of immature plants from which no agricultural income has been derived during the accounting year. We are not concerned in this case with the validity of this provision so far as agricultural income from land in which crops other than tea are raised. Here we are concerned with its validity with respect to its application to the income from tea plantations. Explanation 2 in tit 5 of the AgriculturalAct is obviously not consistent with the Explanation to(2) of cl. (a) of S. 2 of the Agricultural Income tax Act and also the rule for computing agricultural income made under theAct and result in making the agricultural income from tea plantations for the purpose of the AgriculturalAct to be different and higher than such agricultural income when calculated in accordance with the provisions of theAct and rule 24.The different provisions of an Act are to be construed in such manner as to make them harmonious. Explanation 2 to S. 5 should be so construed as makes it harmonious with Explanation to(2) of cl. (a) of S. 2 of the AgriculturalAct which provides a special definition for agricultural income for tea plantations; such income being that portion of the income derived from land by the cultivation manufacture and sale of tea as is defined to toe agricultural income for the purposes of the enactments relating to IndianExplanation 2, if applied to income from tea, would create an agricultural income which is not contemplated by theAct and the Constitution and would then be void. Though wide in terms Explanation 2 to S. 5 should therefore be construed not to apply to the computation of agricultural income derived from land by the cultivation of tea. Such a construction would made it harmonious with the Explanation to(2) of cl. (a) of S. 2 of the AgriculturalAct.12. It is true, as urged for respondents that the State Legislature has full freedom to enact such provisions as it considers fit in respect of tax on agricultural income and that such power includes the power to enact for matters subsidiary and incidental to the taxation of agricultural income. We also agree that the State Legislature is free to provide the method of computation of the taxable agricultural income and is free to allow any particular deductions from the gross income as it considers fit. It is not disputed for the respondent that the power of the State Legislature to enact a law in respect of agricultural income relates only to such agricultural income as is defined in Art. 366 of the Constitution.13. It is however urged that for the purpose of this definition, one has to look to the definition of Agricultural income in theAct and not to the rules made thereunder. We do not agree. Agricultural income as defined in the Constitution means agricultural income for the purpose of the enactments relating toOne such enactment is theAct. Rule 24 of theRules has been made under the powers conferred by S. 59 of theAct and has effect as if enacted in that Act. When S. 59 of theAct provides for the rules made under that Act to prescribe the proportions of income from business, and income from agriculture in the entire income derived in part from agriculture and in part from business, the proportion so prescribed must be taken to be prescribed by the Act. These rule were in existence in 1950 when the Constitution incorporated the definition of agricultural income from theAct by reference. The definition of the term was bound up with the rules.14. It has been further submitted for the respondents that cl. (xv) of(2) of S. 10 of theAct is a general provision and should give way to the special provision of the agriculturalwith respect to thedeductions from the gross income for the purpose of computing the agricultural income. This cannot be, as we have to take the definition of agricultural income from what it is in theAct. The provisions of theAct and the rules made thereunder will control the provisions of the AgriculturalAct enacted by a Statewe do not agree. The proviso allows the deductions of the cost of planting bushes in replacement of bushes which died or became permanently useless in an area already planted. It deals with the cost of planting bushes and not with the expenses incurred in the upkeep and maintenance of bushes already planted. These petitions are notwith respect to theexpenses incurred in the planting of immature tea bushes but are with respect to expenses incurred in the upkeep and maintenance of immature plants.17. We therefore construe Explanation 2 to S. 5 of the AgriculturalAct not to extend to the computation of agricultural income derived from tea plantations and hold that in computing such agricultural income for the purpose of taxation under the AgriculturalAct, the explanation to S. 2 of that Act must be kept in mind and the income must be taken to be as defined for the purposes of the enactments relating to IndianIn view of our opinion it is not necessary to consider the other contention for the petitioner that Explanation 2 to S. 5 is discriminatory and contravenes the provisions of Art. 14 of the Constitution.19. We therefore allow these petitions to this extent that we declare that Explanation 2 to S. 5 of the AgriculturalAct added by the Amendment Act does not cover the expenses incurred in the upkeep or maintenance of immature tea plants from which no income has been derived during an accounting year and that the agricultural income derived from tea plantation will be computed in accordance with the provisions of theAct and theRules. We order that a writ be issued to the respondents restraining them, their agents and servants from enforcing or acting upon the provisions of Explanation 2 to S. 5 of the AgriculturalAct against the Karimtharuvi Tea Estates Ltd., Kottayam, viz., petitioner No. 1. We direct the respondents to pay the costs of petitioner No.1, one set. | 1 | 3,585 | 1,315 | ### 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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be different and higher than such agricultural income when calculated in accordance with the provisions of the Income-tax Act and rule 24.The different provisions of an Act are to be construed in such manner as to make them harmonious. Explanation 2 to S. 5 should be so construed as makes it harmonious with Explanation to sub-cl. (2) of cl. (a) of S. 2 of the Agricultural Income-tax Act which provides a special definition for agricultural income for tea plantations; such income being that portion of the income derived from land by the cultivation manufacture and sale of tea as is defined to toe agricultural income for the purposes of the enactments relating to Indian income-tax. Explanation 2, if applied to income from tea, would create an agricultural income which is not contemplated by the Income-tax Act and the Constitution and would then be void. Though wide in terms Explanation 2 to S. 5 should therefore be construed not to apply to the computation of agricultural income derived from land by the cultivation of tea. Such a construction would made it harmonious with the Explanation to sub-cl. (2) of cl. (a) of S. 2 of the Agricultural Income-tax Act.12. It is true, as urged for respondents that the State Legislature has full freedom to enact such provisions as it considers fit in respect of tax on agricultural income and that such power includes the power to enact for matters subsidiary and incidental to the taxation of agricultural income. We also agree that the State Legislature is free to provide the method of computation of the taxable agricultural income and is free to allow any particular deductions from the gross income as it considers fit. It is not disputed for the respondent that the power of the State Legislature to enact a law in respect of agricultural income relates only to such agricultural income as is defined in Art. 366 of the Constitution.13. It is however urged that for the purpose of this definition, one has to look to the definition of Agricultural income in the Income-tax Act and not to the rules made thereunder. We do not agree. Agricultural income as defined in the Constitution means agricultural income for the purpose of the enactments relating to income-tax. One such enactment is the Income-tax Act. Rule 24 of the Income-tax Rules has been made under the powers conferred by S. 59 of the Income-tax Act and has effect as if enacted in that Act. When S. 59 of the Income-tax Act provides for the rules made under that Act to prescribe the proportions of income from business, and income from agriculture in the entire income derived in part from agriculture and in part from business, the proportion so prescribed must be taken to be prescribed by the Act. These rule were in existence in 1950 when the Constitution incorporated the definition of agricultural income from the Income-tax Act by reference. The definition of the term was bound up with the rules.14. It has been further submitted for the respondents that cl. (xv) of sub-s. (2) of S. 10 of the Income-tax Act is a general provision and should give way to the special provision of the agricultural Income-tax Act with respect to the deductions from the gross income for the purpose of computing the agricultural income. This cannot be, as we have to take the definition of agricultural income from what it is in the Income-tax Act. The provisions of the Income-tax Act and the rules made thereunder will control the provisions of the Agricultural Income-tax Act enacted by a State Legislature.15. The contention that the amount spent for the upkeep and maintenance of the immature plants till they become mature is in the nature of a capital expenditure is also not sound. It is a running expenditure and not of the nature of capital expenditure.16. It is further contended that if such expenditure be held to be deductible expenditure, the proviso to rule 24 would be redundant. Again, we do not agree. The proviso allows the deductions of the cost of planting bushes in replacement of bushes which died or became permanently useless in an area already planted. It deals with the cost of planting bushes and not with the expenses incurred in the upkeep and maintenance of bushes already planted. These petitions are not with respect to the expenses incurred in the planting of immature tea bushes but are with respect to expenses incurred in the upkeep and maintenance of immature plants.17. We therefore construe Explanation 2 to S. 5 of the Agricultural income-tax Act not to extend to the computation of agricultural income derived from tea plantations and hold that in computing such agricultural income for the purpose of taxation under the Agricultural Income-tax Act, the explanation to S. 2 of that Act must be kept in mind and the income must be taken to be as defined for the purposes of the enactments relating to Indian income-tax.18. In view of our opinion it is not necessary to consider the other contention for the petitioner that Explanation 2 to S. 5 is discriminatory and contravenes the provisions of Art. 14 of the Constitution.19. We therefore allow these petitions to this extent that we declare that Explanation 2 to S. 5 of the Agricultural Income-tax Act added by the Amendment Act does not cover the expenses incurred in the upkeep or maintenance of immature tea plants from which no income has been derived during an accounting year and that the agricultural income derived from tea plantation will be computed in accordance with the provisions of the Income-tax Act and the Income-tax Rules. We order that a writ be issued to the respondents restraining them, their agents and servants from enforcing or acting upon the provisions of Explanation 2 to S. 5 of the Agricultural Income-tax Act against the Karimtharuvi Tea Estates Ltd., Kottayam, viz., petitioner No. 1. We direct the respondents to pay the costs of petitioner No.1, one set.
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### Explanation:
5with respect to theexpenses incurred in the upkeep and maintenance of immature plants from which no agricultural income has been derived during the accounting year. We are not concerned in this case with the validity of this provision so far as agricultural income from land in which crops other than tea are raised. Here we are concerned with its validity with respect to its application to the income from tea plantations. Explanation 2 in tit 5 of the AgriculturalAct is obviously not consistent with the Explanation to(2) of cl. (a) of S. 2 of the Agricultural Income tax Act and also the rule for computing agricultural income made under theAct and result in making the agricultural income from tea plantations for the purpose of the AgriculturalAct to be different and higher than such agricultural income when calculated in accordance with the provisions of theAct and rule 24.The different provisions of an Act are to be construed in such manner as to make them harmonious. Explanation 2 to S. 5 should be so construed as makes it harmonious with Explanation to(2) of cl. (a) of S. 2 of the AgriculturalAct which provides a special definition for agricultural income for tea plantations; such income being that portion of the income derived from land by the cultivation manufacture and sale of tea as is defined to toe agricultural income for the purposes of the enactments relating to IndianExplanation 2, if applied to income from tea, would create an agricultural income which is not contemplated by theAct and the Constitution and would then be void. Though wide in terms Explanation 2 to S. 5 should therefore be construed not to apply to the computation of agricultural income derived from land by the cultivation of tea. Such a construction would made it harmonious with the Explanation to(2) of cl. (a) of S. 2 of the AgriculturalAct.12. It is true, as urged for respondents that the State Legislature has full freedom to enact such provisions as it considers fit in respect of tax on agricultural income and that such power includes the power to enact for matters subsidiary and incidental to the taxation of agricultural income. We also agree that the State Legislature is free to provide the method of computation of the taxable agricultural income and is free to allow any particular deductions from the gross income as it considers fit. It is not disputed for the respondent that the power of the State Legislature to enact a law in respect of agricultural income relates only to such agricultural income as is defined in Art. 366 of the Constitution.13. It is however urged that for the purpose of this definition, one has to look to the definition of Agricultural income in theAct and not to the rules made thereunder. We do not agree. Agricultural income as defined in the Constitution means agricultural income for the purpose of the enactments relating toOne such enactment is theAct. Rule 24 of theRules has been made under the powers conferred by S. 59 of theAct and has effect as if enacted in that Act. When S. 59 of theAct provides for the rules made under that Act to prescribe the proportions of income from business, and income from agriculture in the entire income derived in part from agriculture and in part from business, the proportion so prescribed must be taken to be prescribed by the Act. These rule were in existence in 1950 when the Constitution incorporated the definition of agricultural income from theAct by reference. The definition of the term was bound up with the rules.14. It has been further submitted for the respondents that cl. (xv) of(2) of S. 10 of theAct is a general provision and should give way to the special provision of the agriculturalwith respect to thedeductions from the gross income for the purpose of computing the agricultural income. This cannot be, as we have to take the definition of agricultural income from what it is in theAct. The provisions of theAct and the rules made thereunder will control the provisions of the AgriculturalAct enacted by a Statewe do not agree. The proviso allows the deductions of the cost of planting bushes in replacement of bushes which died or became permanently useless in an area already planted. It deals with the cost of planting bushes and not with the expenses incurred in the upkeep and maintenance of bushes already planted. These petitions are notwith respect to theexpenses incurred in the planting of immature tea bushes but are with respect to expenses incurred in the upkeep and maintenance of immature plants.17. We therefore construe Explanation 2 to S. 5 of the AgriculturalAct not to extend to the computation of agricultural income derived from tea plantations and hold that in computing such agricultural income for the purpose of taxation under the AgriculturalAct, the explanation to S. 2 of that Act must be kept in mind and the income must be taken to be as defined for the purposes of the enactments relating to IndianIn view of our opinion it is not necessary to consider the other contention for the petitioner that Explanation 2 to S. 5 is discriminatory and contravenes the provisions of Art. 14 of the Constitution.19. We therefore allow these petitions to this extent that we declare that Explanation 2 to S. 5 of the AgriculturalAct added by the Amendment Act does not cover the expenses incurred in the upkeep or maintenance of immature tea plants from which no income has been derived during an accounting year and that the agricultural income derived from tea plantation will be computed in accordance with the provisions of theAct and theRules. We order that a writ be issued to the respondents restraining them, their agents and servants from enforcing or acting upon the provisions of Explanation 2 to S. 5 of the AgriculturalAct against the Karimtharuvi Tea Estates Ltd., Kottayam, viz., petitioner No. 1. We direct the respondents to pay the costs of petitioner No.1, one set.
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Esthuri Aswanthiah Vs. Commissioner Of Income-Tax, Mysore | jaggery, and from assets received on partition of the joint family of which the assessee was a member.In estimating Rs. 50,000 as the income from undisclosed sources, the Tribunal merely relied upon the offer made by counsel for the assessee. This was an unsatisfactory way of disposing of the appeal.The function of the Tribunal in hearing an appeal is purely judicial. It is under a duty to decide all questions of fact and law raised in the appeal before it, for that purpose it must consider whether on the materials relied upon by the assessee his plea is made out. Conclusive proof of the claim is not predicated; the Tribunal may act upon probabilities, and presumptions may supply gaps in the evidence which may not on account of delay or the nature of the transactions or for other reasons be supplied from independent sources. But the Tribunal cannot make arbitrary decisions; it cannot found its judgment on conjectures, surmises or speculation. Between the claims of the public revenue and of the tax-payers, the Tribunal must maintain a judicial balance. The order passed by the Tribunal without recording any reasons in support of the estimate of unaccounted income cannot, therefore, be sustained. 7. But counsel for the assessee said that the case of the assessee had not been fairly tried. He said that there was on the record evidence that in a partition suit between the assessee and his brother the assessee received on June 30, 1949 an amount of Rs. 48,500/- and Rs. 14, 647/- and Rs. 13,118/representing "money bonds". He also said that the assessee had made a profit of Rs. 70,000/- in his business in jaggery, that between November 18, 1946 and December 16, 1948, the assessee had drawn cheques "to self on the Mysore Bank for Rs. 1,67,800/-, and between January 18, 1947 and November 25, 1947 the assessee had drawn cheques "to self" for Rs. 52,255/-, and that on October 22, 1946 the assessee had in his Bank Account a balance of Rs. 1,39,946/-. Counsel contended that the assessee had at the material time large funds which could have been brought into the books of account on July 1, 1949, but the Tribunal failed to consider the evidence and had merely accepted the offer made by counsel for the assessee that he should be assessed in the sum of Rs. 50,000. 8. For the reasons already recorded, we agree with the answers recorded by the High Court on the two questions. 9. But it is necessary to give certain effective directions, lest a bald order of dismissal of the appeal may result in injustice, especially when the assessee had not a fair trial of his case before the Tribunal.Section 66(5) of the Indian Income-tax Act, 1922, requires the Tribunal on receiving a copy of the judgment of the High Court to pass such orders as are necessary to dispose of the case conformably to such judgment. This clearly imposes an obligation upon the Tribunal to dispose of the appeal in the light of and conformably with the judgment of the High Court. Before the Tribunal passes an order disposing of the appeal, there would normally be a hearing. The scope of the hearing must of course depend upon the nature of the order passed by the High Court. If the High Court has agreed with the view of the Tribunal, the appeal may be disposed of by a formal order; if the High Court disagrees with the Tribunal on a question of law, the Tribunal must modify its order in the light of the order of the High Court, if the High Court has held that the judgment of the Tribunal is vitiated, because it is based on no evidence or that it proceeds upon conjectures, speculation or suspicion, or has been delivered after a trial contrary to rules of natural justice, the Tribunal would be under a duty to dispose of the case conformably with the opinion of the High Court and on the merits of the dispute. In all cases, however, opportunity must be afforded to the parties of being heard. 10. In Income-tax Appellate Tribunal, Bombay v. S. C. Cambatta and co. Ltd., 1956-29 ITR 118 = (AIR 1956 - Bom 509), the Bombay High Court explained the procedure to be followed in the disposal of an appeal conformably to the judgment of the High Court. Chagla, C. J., in delivering the judgment of the Court observed :"*** when a reference is made to the High Court either under Sec. 66(1) or Section 66(2) the decision of the Appellate Tribunal cannot be looked upon as final; in other words, the appeal is not finally disposed of. It is only when the High Court decides the case, exercises its advisory jurisdiction, and gives directions to the Tribunal on the questions of law and the Tribunal reconsiders the matter and decides it, that the appeal is finally disposed of * * * it is clear that what the Appellate Tribunal is doing after the High Court has heard the case is to exercise its appellate powers under Section 33.** The shape that the appeal would ultimately take and the decision that the Appellate Tribunal would ultimately give would entirely depend upon the view taken by the High Court". 11. A similar view was expressed by the Bombay High Court in Rajkumar Mills Ltd. v. Income-tax Appellate Tribunal, 1958-33 ITR 750 = (AIR 1958 Bom 177 ). 12. The High Court has held, and we agree with the High Court, that the judgment of the Tribunal is based on no reasoning and is on that account speculative. But by recording that answer, it is not to be implied that the order of the Appellate Assistant Commissioner is confirmed. It will be the duty of the Tribunal conformably with the Judgment of the High Court, to dispose of the case after hearing the assessee and the Commissioner in the light of the evidence and according to law. | 0[ds]6. The judgment recorded by the Tribunal has not the merit of clarity or of consistency.The Tribunal commenced by disbelieving the explanation of the assessee relating to the source of the credit entry. After some inconclusive statements it proceeded to record that it was not unlikely that the assessee had some cash on hand from profits earned in the trade from jaggery, and from assets received on partition of the joint family of which the assessee was a member.In estimating Rs. 50,000 as the income from undisclosed sources, the Tribunal merely relied upon the offer made by counsel for the assessee. This was an unsatisfactory way of disposing of the appeal.The function of the Tribunal in hearing an appeal is purely judicial. It is under a duty to decide all questions of fact and law raised in the appeal before it, for that purpose it must consider whether on the materials relied upon by the assessee his plea is made out. Conclusive proof of the claim is not predicated; the Tribunal may act upon probabilities, and presumptions may supply gaps in the evidence which may not on account of delay or the nature of the transactions or for other reasons be supplied from independent sources. But the Tribunal cannot make arbitrary decisions; it cannot found its judgment on conjectures, surmises or speculation. Between the claims of the public revenue and of the tax-payers, the Tribunal must maintain a judicial balance. The order passed by the Tribunal without recording any reasons in support of the estimate of unaccounted income cannot, therefore, be sustained8. For the reasons already recorded, we agree with the answers recorded by the High Court on the two questions9. But it is necessary to give certain effective directions, lest a bald order of dismissal of the appeal may result in injustice, especially when the assessee had not a fair trial of his case before the Tribunal12. The High Court has held, and we agree with the High Court, that the judgment of the Tribunal is based on no reasoning and is on that account speculative. But by recording that answer, it is not to be implied that the order of the Appellate Assistant Commissioner is confirmed. It will be the duty of the Tribunal conformably with the Judgment of the High Court, to dispose of the case after hearing the assessee and the Commissioner in the light of the evidence and according to law. | 0 | 2,280 | 445 | ### Instruction:
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jaggery, and from assets received on partition of the joint family of which the assessee was a member.In estimating Rs. 50,000 as the income from undisclosed sources, the Tribunal merely relied upon the offer made by counsel for the assessee. This was an unsatisfactory way of disposing of the appeal.The function of the Tribunal in hearing an appeal is purely judicial. It is under a duty to decide all questions of fact and law raised in the appeal before it, for that purpose it must consider whether on the materials relied upon by the assessee his plea is made out. Conclusive proof of the claim is not predicated; the Tribunal may act upon probabilities, and presumptions may supply gaps in the evidence which may not on account of delay or the nature of the transactions or for other reasons be supplied from independent sources. But the Tribunal cannot make arbitrary decisions; it cannot found its judgment on conjectures, surmises or speculation. Between the claims of the public revenue and of the tax-payers, the Tribunal must maintain a judicial balance. The order passed by the Tribunal without recording any reasons in support of the estimate of unaccounted income cannot, therefore, be sustained. 7. But counsel for the assessee said that the case of the assessee had not been fairly tried. He said that there was on the record evidence that in a partition suit between the assessee and his brother the assessee received on June 30, 1949 an amount of Rs. 48,500/- and Rs. 14, 647/- and Rs. 13,118/representing "money bonds". He also said that the assessee had made a profit of Rs. 70,000/- in his business in jaggery, that between November 18, 1946 and December 16, 1948, the assessee had drawn cheques "to self on the Mysore Bank for Rs. 1,67,800/-, and between January 18, 1947 and November 25, 1947 the assessee had drawn cheques "to self" for Rs. 52,255/-, and that on October 22, 1946 the assessee had in his Bank Account a balance of Rs. 1,39,946/-. Counsel contended that the assessee had at the material time large funds which could have been brought into the books of account on July 1, 1949, but the Tribunal failed to consider the evidence and had merely accepted the offer made by counsel for the assessee that he should be assessed in the sum of Rs. 50,000. 8. For the reasons already recorded, we agree with the answers recorded by the High Court on the two questions. 9. But it is necessary to give certain effective directions, lest a bald order of dismissal of the appeal may result in injustice, especially when the assessee had not a fair trial of his case before the Tribunal.Section 66(5) of the Indian Income-tax Act, 1922, requires the Tribunal on receiving a copy of the judgment of the High Court to pass such orders as are necessary to dispose of the case conformably to such judgment. This clearly imposes an obligation upon the Tribunal to dispose of the appeal in the light of and conformably with the judgment of the High Court. Before the Tribunal passes an order disposing of the appeal, there would normally be a hearing. The scope of the hearing must of course depend upon the nature of the order passed by the High Court. If the High Court has agreed with the view of the Tribunal, the appeal may be disposed of by a formal order; if the High Court disagrees with the Tribunal on a question of law, the Tribunal must modify its order in the light of the order of the High Court, if the High Court has held that the judgment of the Tribunal is vitiated, because it is based on no evidence or that it proceeds upon conjectures, speculation or suspicion, or has been delivered after a trial contrary to rules of natural justice, the Tribunal would be under a duty to dispose of the case conformably with the opinion of the High Court and on the merits of the dispute. In all cases, however, opportunity must be afforded to the parties of being heard. 10. In Income-tax Appellate Tribunal, Bombay v. S. C. Cambatta and co. Ltd., 1956-29 ITR 118 = (AIR 1956 - Bom 509), the Bombay High Court explained the procedure to be followed in the disposal of an appeal conformably to the judgment of the High Court. Chagla, C. J., in delivering the judgment of the Court observed :"*** when a reference is made to the High Court either under Sec. 66(1) or Section 66(2) the decision of the Appellate Tribunal cannot be looked upon as final; in other words, the appeal is not finally disposed of. It is only when the High Court decides the case, exercises its advisory jurisdiction, and gives directions to the Tribunal on the questions of law and the Tribunal reconsiders the matter and decides it, that the appeal is finally disposed of * * * it is clear that what the Appellate Tribunal is doing after the High Court has heard the case is to exercise its appellate powers under Section 33.** The shape that the appeal would ultimately take and the decision that the Appellate Tribunal would ultimately give would entirely depend upon the view taken by the High Court". 11. A similar view was expressed by the Bombay High Court in Rajkumar Mills Ltd. v. Income-tax Appellate Tribunal, 1958-33 ITR 750 = (AIR 1958 Bom 177 ). 12. The High Court has held, and we agree with the High Court, that the judgment of the Tribunal is based on no reasoning and is on that account speculative. But by recording that answer, it is not to be implied that the order of the Appellate Assistant Commissioner is confirmed. It will be the duty of the Tribunal conformably with the Judgment of the High Court, to dispose of the case after hearing the assessee and the Commissioner in the light of the evidence and according to law.
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6. The judgment recorded by the Tribunal has not the merit of clarity or of consistency.The Tribunal commenced by disbelieving the explanation of the assessee relating to the source of the credit entry. After some inconclusive statements it proceeded to record that it was not unlikely that the assessee had some cash on hand from profits earned in the trade from jaggery, and from assets received on partition of the joint family of which the assessee was a member.In estimating Rs. 50,000 as the income from undisclosed sources, the Tribunal merely relied upon the offer made by counsel for the assessee. This was an unsatisfactory way of disposing of the appeal.The function of the Tribunal in hearing an appeal is purely judicial. It is under a duty to decide all questions of fact and law raised in the appeal before it, for that purpose it must consider whether on the materials relied upon by the assessee his plea is made out. Conclusive proof of the claim is not predicated; the Tribunal may act upon probabilities, and presumptions may supply gaps in the evidence which may not on account of delay or the nature of the transactions or for other reasons be supplied from independent sources. But the Tribunal cannot make arbitrary decisions; it cannot found its judgment on conjectures, surmises or speculation. Between the claims of the public revenue and of the tax-payers, the Tribunal must maintain a judicial balance. The order passed by the Tribunal without recording any reasons in support of the estimate of unaccounted income cannot, therefore, be sustained8. For the reasons already recorded, we agree with the answers recorded by the High Court on the two questions9. But it is necessary to give certain effective directions, lest a bald order of dismissal of the appeal may result in injustice, especially when the assessee had not a fair trial of his case before the Tribunal12. The High Court has held, and we agree with the High Court, that the judgment of the Tribunal is based on no reasoning and is on that account speculative. But by recording that answer, it is not to be implied that the order of the Appellate Assistant Commissioner is confirmed. It will be the duty of the Tribunal conformably with the Judgment of the High Court, to dispose of the case after hearing the assessee and the Commissioner in the light of the evidence and according to law.
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Ajay Aggarwal Vs. Union of India & Others | at and would be dealt with as soon as that jurisdiction can properly claim the power to so, The conspiracy designed or agreed abroad will have the same effect as in India, when part of the acts, pursuant to the agreement are agreed to be finalised or done, attempted or even frustrated and vice verse 26. In K. Satwant Singh v. State of Punjab ( 1960 (2) SCR 89 : 1960 AIR(SC) 266 : 1960 (66) CrLJ 410) a Constitution Bench of this Court was to consider as to when Section 188 of the Code would be applicable to a case. The facts therein was that the appellant had cheated the Government of Burma whose office was at Simla punishable under Section 420 IPC. The accused contended that the part of the act was done at Kohlapur where payment was to be made and on that basis the court at had no jurisdiction to try the offence without prior sanction of the political agent. Considering that question this Court held that if the offence of cheating was committed outside British India, the sanction would be necessary but on facts it was held that ".... It seems to us, on the facts established in this case, that no part of the offence of cheating was committed by the appellant outside British India. His false representation to the government of Burma that money was due to him was at a place in British India which induced that Government to order payment of his claims. In fact he was paid at Lahore at his own request by means of cheques on the Branch of the Imperial Bank of India at Lahore, The delivery of the property of the Government of Burma, namely, the money was made at Lahore, a place in British India, and we cannot regard, in the circumstances of the present case, the posting of the cheques at Kohlapur either as delivery of property to the appellant at Kohlapur or payment of his claims at Kohlapur. The entire argument founded on the provisions of Section 188 of the Code, therefore, fails." * Far from helping the appellant the ratio establishes that if an offence was committed in India the need to obtain sanction under Section 188 is obviated. In Purushottamdas Dalmia v. State of W. B. ( 1962 (2) SCR 101 : 1961 AIR(SC) 1589 : 1961 (2) CrLJ 728 This Court, when the appellant was charged with offences punishable under Sections 120-B, 466 and 477, the appellant contended that offence of conspiracy was entered into at Calcutta, the offences of using the forged documents was committed at Madras. Therefore the court at Calcutta had no jurisdiction to try the offence under Section 471 read with Section 466 IPC, even though committed in pursuance of the conspiracy and in course of the same transaction. This Court held that the desirability of trying the offences of all the overt acts committed in pursuance of a conspiracy together is obvious and Sections 177 and 239 of the Code leave no manner of doubt that the court which has the jurisdiction to try the offence of criminal conspiracy has also the jurisdiction to try all the overt acts committed in pursuance of it even though outside its territorial jurisdiction. In L. N. Mukherjee v. State of Madras ( 1962 (2) SCR 116 : 1961 AIR(SC) 1601 : 1961 (2) CrLJ 736) it was further held that the court having jurisdiction to try the offences committed in pursuance of the conspiracy has also the jurisdiction to try the offences committed in pursuance of the conspiracy has also the jurisdiction to try the offence of criminal conspiracy even though it was committed outside its territorial jurisdiction. This view was further reiterated in R. K. Dalmia v. Delhi Administration ( 1963 (1) SCR 253 : 1962 AIR(SC) 1821 : 1962 (2) CrLJ 805) and Banwari Lal Jhunjhunwala v. Union of India Therein it was held that the court trying an accused for offence of conspiracy is competent to try him for offences committed in pursuance of that conspiracy irrespective of the fact whether or not overt acts have been committed within its territorial jurisdiction. The charges framed therein under Section 409 read with Sections 120-B 420 IPC and Section 5(1) (D) read with Section 5(2) of the Prevention of Corruption Act were upheld 27. Thus we hold that sanction under section 188 is not a condition precedent to take cognizance of the office. If need be it could be obtained before trial begins. Conspiracy was initially hatched at Chandigarh and though itself is a completed offence, being continuing offence, even accepting appellants case that he was at Dubai and part of conspiracy and overt acts in furtherance thereof had taken place at Dubai and partly at Chandigarh and in consequence thereof other offences had ensued, since the offences have been committed during the continuing course of transaction culminating in cheating PNB at Chandigarh, the need to obtain sanction for various offences under proviso to Section 188 is obviated. Therefore, there is no need to obtain sanction from Central Government. The case may be different if the offences were committed outside India and are completed in themselves without conspiracy. Perhaps that question may be different for which we express no opinion on the facts of this case. The ratio in Fakhrulla Khan 1935 AIR(Mad) 326 : 68 MLJ 415 : 1935 MWN 325 ) has no application to the facts in this case. Therein the accused were charged for offences under Sections 420, 419, 467 and 468 and the offences were committed in native State, Mysore, As a result the courts in British India i.e. Madras province had no jurisdiction to try the offence without prior sanction Equally in Verghese case the offences charged under Section 409 IPC had also taken place outside British India Therefore, it was held that the sanction under Section 188 was necessary. The ratio in Kailash Sharma case is not good at law. | 0[ds]Therefore, the provisions in Chapter VIII are elastic and not peremptory. In consequence therewith Sections 218 to 223 of the Code would also deal with exceptions engrafted in the Code. Therefore, they do permit inquiry or trial of a particular offence along with other offences at a common trial in one court so that the court having jurisdiction to try an offence gets jurisdiction to try other Offence committed or consequences thereof have ensued. The procedure is handmaid to substantive justice, namely, to bring the offenders to justice to mete out punishment under IPC or special law as the case may be, in accordance with the procedure prescribed under the Code or special procedure under that Act constituting the offence13. Thus, this Court, though not in the context of jurisdictional issue, held that the agreement though not illegal at its inception would become illegal by subsequent conduct and an agreement to do an illegal act or to do a legal act by illegal means, must be viewed as a whole and not in isolation. It was also implied that the agreement shall be continuing till the object is achieved. The agreement does not get terminated by merely entering into an agreement but it continues to subsist till the object is either achieved or terminated or abandoned24. Thus, an agreement between two or more persons to do an illegal act or legal acts by illegal means is criminal conspiracy. If the agreement is not an agreement to commit an offence, it does not amount to conspiracy unless it is followed up by an overt act done by one or more persons in furtherance of the agreement. The offence is complete as soon as there is meeting of minds and unity of purpose between the conspirators to do that illegal act or legal act by illegal means. Conspiracy itself is a substantive offence and is distinct from the offence to commit which the conspiracy is entered into. It is undoubted that the general conspiracy is distinct from number of separate offences committed while executing the offence of conspiracy. Each act constitutes separate offence punishable independent of the conspiracy. The law had developed several or different models or techniques to broach the scope of conspiracy. One such model is that of a chain, where each party performs even without knowledge of the other a role that aids succeeding parties in accomplishing the criminal objectives of the conspiracy. An illustration of a single conspiracy, its parts bound together as links in a chain, is the process of procuring and distributing narcotics or an illegal foreign drug for sale in different parts of the globe. In such a case smugglers, middlemen and retailers are privies to a single conspiracy to smuggle and distribute narcotics. The smugglers knew that the middlemen must sell to retailers and the retailers knew that the middlemen must sell to retailers and the retailers knew that the middlemen must buy of importers of someone or another. Thus the conspirators at one end of the chain knew that the unlawful business would not and could not stop with their buyers and those at the other end knew that it had not begun with their settlers. The accused embarked upon a venture in all parts of which each was a participant and an abettor in the sense that, the success of the part with which he was immediately concerned, was dependent upon the success of the whole. It should also be considered as a spoke in the hub. There is a rim to bind all the spokes together in a single conspiracy. It is not material that a rim is found only when there is proof that each spoke was aware of one anothers existence but that all promoted in furtherance of some single illegal objective. The traditional concept of single agreement can also accommodate the situation where a well-defined group conspires to commit multiple crimes so long as all these crimes are the objects of the same agreement or continuous conspiratorial relationship, and the conspiracy continues to subsist though it was entered in the fist instance. Take for instance that three persons hatched a conspiracy in country A to kill D in country B with explosive substance. As far as conspiracy is concerned it is complete in country A. One of them pursuant thereto carried the explosive substance and hands it over to third one in the country B who implants at a place where D frequents and got exploded with remote control D may be killed or escape or may be diffused. The conspiracy continues till it is executed in country B or frustrated, therefore, it is a continuing act and all are liable for conspiracy in country B though first two are liable to murder with aid of Section 120 B and the last one is liable under Section 302 or 307 IPC, as the case may be. Conspiracy may be considered to be a march under a banner and a person may join or drop out in the march without the necessity of the change in the text on the banner. It the comity of International Law, in these days, committing offences on international scale is a common feature. The offence of conspiracy would be a useful weapon and there would exist no conflict in municipal laws and the doctrine of autrefois convict or acquit would extend to such offences. The comity of nations are duty-bound to apprehend the conspirators as soon as they set their feet on the countrys territorial limits and nip the offence in the bud25. A conspiracy thus, is a continuing offence and continues to subsist and committed wherever one of the conspirators does an act or series of acts. So long as its performance continues, it is a continuing offence till it is executed or rescinded or frustrated by choice or necessity. A crime is complete as soon as the agreement is made, but it is not a thing of the moment. It does not end with the making of the agreement. It will continue so long as there are two or more parties to it intending to carry into effect the design. Its continuance is a threat to the society against which it was aimed at and would be dealt with as soon as that jurisdiction can properly claim the power to so, The conspiracy designed or agreed abroad will have the same effect as in India, when part of the acts, pursuant to the agreement are agreed to be finalised or done, attempted or even frustrated and vice verse27. Thus we hold that sanction under section 188 is not a condition precedent to take cognizance of the office. If need be it could be obtained before trial begins. Conspiracy was initially hatched at Chandigarh and though itself is a completed offence, being continuing offence, even accepting appellants case that he was at Dubai and part of conspiracy and overt acts in furtherance thereof had taken place at Dubai and partly at Chandigarh and in consequence thereof other offences had ensued, since the offences have been committed during the continuing course of transaction culminating in cheating PNB at Chandigarh, the need to obtain sanction for various offences under proviso to Section 188 is obviated. Therefore, there is no need to obtain sanction from Central Government. The case may be different if the offences were committed outside India and are completed in themselves without conspiracy. Perhaps that question may be different for which we express no opinion on the facts of this case. The ratio in Fakhrulla Khan 1935 AIR(Mad) 326 : 68 MLJ 415 : 1935 MWN 325 ) has no application to the facts in this case. Therein the accused were charged for offences under Sections 420, 419, 467 and 468 and the offences were committed in native State, Mysore, As a result the courts in British India i.e. Madras province had no jurisdiction to try the offence without prior sanction Equally in Verghese case the offences charged under Section 409 IPC had also taken place outside British India Therefore, it was held that the sanction under Section 188 was necessary. The ratio in Kailash Sharma case is not good at law. | 0 | 8,781 | 1,465 | ### Instruction:
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at and would be dealt with as soon as that jurisdiction can properly claim the power to so, The conspiracy designed or agreed abroad will have the same effect as in India, when part of the acts, pursuant to the agreement are agreed to be finalised or done, attempted or even frustrated and vice verse 26. In K. Satwant Singh v. State of Punjab ( 1960 (2) SCR 89 : 1960 AIR(SC) 266 : 1960 (66) CrLJ 410) a Constitution Bench of this Court was to consider as to when Section 188 of the Code would be applicable to a case. The facts therein was that the appellant had cheated the Government of Burma whose office was at Simla punishable under Section 420 IPC. The accused contended that the part of the act was done at Kohlapur where payment was to be made and on that basis the court at had no jurisdiction to try the offence without prior sanction of the political agent. Considering that question this Court held that if the offence of cheating was committed outside British India, the sanction would be necessary but on facts it was held that ".... It seems to us, on the facts established in this case, that no part of the offence of cheating was committed by the appellant outside British India. His false representation to the government of Burma that money was due to him was at a place in British India which induced that Government to order payment of his claims. In fact he was paid at Lahore at his own request by means of cheques on the Branch of the Imperial Bank of India at Lahore, The delivery of the property of the Government of Burma, namely, the money was made at Lahore, a place in British India, and we cannot regard, in the circumstances of the present case, the posting of the cheques at Kohlapur either as delivery of property to the appellant at Kohlapur or payment of his claims at Kohlapur. The entire argument founded on the provisions of Section 188 of the Code, therefore, fails." * Far from helping the appellant the ratio establishes that if an offence was committed in India the need to obtain sanction under Section 188 is obviated. In Purushottamdas Dalmia v. State of W. B. ( 1962 (2) SCR 101 : 1961 AIR(SC) 1589 : 1961 (2) CrLJ 728 This Court, when the appellant was charged with offences punishable under Sections 120-B, 466 and 477, the appellant contended that offence of conspiracy was entered into at Calcutta, the offences of using the forged documents was committed at Madras. Therefore the court at Calcutta had no jurisdiction to try the offence under Section 471 read with Section 466 IPC, even though committed in pursuance of the conspiracy and in course of the same transaction. This Court held that the desirability of trying the offences of all the overt acts committed in pursuance of a conspiracy together is obvious and Sections 177 and 239 of the Code leave no manner of doubt that the court which has the jurisdiction to try the offence of criminal conspiracy has also the jurisdiction to try all the overt acts committed in pursuance of it even though outside its territorial jurisdiction. In L. N. Mukherjee v. State of Madras ( 1962 (2) SCR 116 : 1961 AIR(SC) 1601 : 1961 (2) CrLJ 736) it was further held that the court having jurisdiction to try the offences committed in pursuance of the conspiracy has also the jurisdiction to try the offences committed in pursuance of the conspiracy has also the jurisdiction to try the offence of criminal conspiracy even though it was committed outside its territorial jurisdiction. This view was further reiterated in R. K. Dalmia v. Delhi Administration ( 1963 (1) SCR 253 : 1962 AIR(SC) 1821 : 1962 (2) CrLJ 805) and Banwari Lal Jhunjhunwala v. Union of India Therein it was held that the court trying an accused for offence of conspiracy is competent to try him for offences committed in pursuance of that conspiracy irrespective of the fact whether or not overt acts have been committed within its territorial jurisdiction. The charges framed therein under Section 409 read with Sections 120-B 420 IPC and Section 5(1) (D) read with Section 5(2) of the Prevention of Corruption Act were upheld 27. Thus we hold that sanction under section 188 is not a condition precedent to take cognizance of the office. If need be it could be obtained before trial begins. Conspiracy was initially hatched at Chandigarh and though itself is a completed offence, being continuing offence, even accepting appellants case that he was at Dubai and part of conspiracy and overt acts in furtherance thereof had taken place at Dubai and partly at Chandigarh and in consequence thereof other offences had ensued, since the offences have been committed during the continuing course of transaction culminating in cheating PNB at Chandigarh, the need to obtain sanction for various offences under proviso to Section 188 is obviated. Therefore, there is no need to obtain sanction from Central Government. The case may be different if the offences were committed outside India and are completed in themselves without conspiracy. Perhaps that question may be different for which we express no opinion on the facts of this case. The ratio in Fakhrulla Khan 1935 AIR(Mad) 326 : 68 MLJ 415 : 1935 MWN 325 ) has no application to the facts in this case. Therein the accused were charged for offences under Sections 420, 419, 467 and 468 and the offences were committed in native State, Mysore, As a result the courts in British India i.e. Madras province had no jurisdiction to try the offence without prior sanction Equally in Verghese case the offences charged under Section 409 IPC had also taken place outside British India Therefore, it was held that the sanction under Section 188 was necessary. The ratio in Kailash Sharma case is not good at law.
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of conspiracy. One such model is that of a chain, where each party performs even without knowledge of the other a role that aids succeeding parties in accomplishing the criminal objectives of the conspiracy. An illustration of a single conspiracy, its parts bound together as links in a chain, is the process of procuring and distributing narcotics or an illegal foreign drug for sale in different parts of the globe. In such a case smugglers, middlemen and retailers are privies to a single conspiracy to smuggle and distribute narcotics. The smugglers knew that the middlemen must sell to retailers and the retailers knew that the middlemen must sell to retailers and the retailers knew that the middlemen must buy of importers of someone or another. Thus the conspirators at one end of the chain knew that the unlawful business would not and could not stop with their buyers and those at the other end knew that it had not begun with their settlers. The accused embarked upon a venture in all parts of which each was a participant and an abettor in the sense that, the success of the part with which he was immediately concerned, was dependent upon the success of the whole. It should also be considered as a spoke in the hub. There is a rim to bind all the spokes together in a single conspiracy. It is not material that a rim is found only when there is proof that each spoke was aware of one anothers existence but that all promoted in furtherance of some single illegal objective. The traditional concept of single agreement can also accommodate the situation where a well-defined group conspires to commit multiple crimes so long as all these crimes are the objects of the same agreement or continuous conspiratorial relationship, and the conspiracy continues to subsist though it was entered in the fist instance. Take for instance that three persons hatched a conspiracy in country A to kill D in country B with explosive substance. As far as conspiracy is concerned it is complete in country A. One of them pursuant thereto carried the explosive substance and hands it over to third one in the country B who implants at a place where D frequents and got exploded with remote control D may be killed or escape or may be diffused. The conspiracy continues till it is executed in country B or frustrated, therefore, it is a continuing act and all are liable for conspiracy in country B though first two are liable to murder with aid of Section 120 B and the last one is liable under Section 302 or 307 IPC, as the case may be. Conspiracy may be considered to be a march under a banner and a person may join or drop out in the march without the necessity of the change in the text on the banner. It the comity of International Law, in these days, committing offences on international scale is a common feature. The offence of conspiracy would be a useful weapon and there would exist no conflict in municipal laws and the doctrine of autrefois convict or acquit would extend to such offences. The comity of nations are duty-bound to apprehend the conspirators as soon as they set their feet on the countrys territorial limits and nip the offence in the bud25. A conspiracy thus, is a continuing offence and continues to subsist and committed wherever one of the conspirators does an act or series of acts. So long as its performance continues, it is a continuing offence till it is executed or rescinded or frustrated by choice or necessity. A crime is complete as soon as the agreement is made, but it is not a thing of the moment. It does not end with the making of the agreement. It will continue so long as there are two or more parties to it intending to carry into effect the design. Its continuance is a threat to the society against which it was aimed at and would be dealt with as soon as that jurisdiction can properly claim the power to so, The conspiracy designed or agreed abroad will have the same effect as in India, when part of the acts, pursuant to the agreement are agreed to be finalised or done, attempted or even frustrated and vice verse27. Thus we hold that sanction under section 188 is not a condition precedent to take cognizance of the office. If need be it could be obtained before trial begins. Conspiracy was initially hatched at Chandigarh and though itself is a completed offence, being continuing offence, even accepting appellants case that he was at Dubai and part of conspiracy and overt acts in furtherance thereof had taken place at Dubai and partly at Chandigarh and in consequence thereof other offences had ensued, since the offences have been committed during the continuing course of transaction culminating in cheating PNB at Chandigarh, the need to obtain sanction for various offences under proviso to Section 188 is obviated. Therefore, there is no need to obtain sanction from Central Government. The case may be different if the offences were committed outside India and are completed in themselves without conspiracy. Perhaps that question may be different for which we express no opinion on the facts of this case. The ratio in Fakhrulla Khan 1935 AIR(Mad) 326 : 68 MLJ 415 : 1935 MWN 325 ) has no application to the facts in this case. Therein the accused were charged for offences under Sections 420, 419, 467 and 468 and the offences were committed in native State, Mysore, As a result the courts in British India i.e. Madras province had no jurisdiction to try the offence without prior sanction Equally in Verghese case the offences charged under Section 409 IPC had also taken place outside British India Therefore, it was held that the sanction under Section 188 was necessary. The ratio in Kailash Sharma case is not good at law.
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The Travencore Rubber & Tea Co.Ltd Vs. C.I.T., Trivandrum | asset could come into existence automatically by operation of law. When no demand for payment was made common sense requires that such amount should be entered into profit and loss account for the year and be treated as taxable." 13. However, in our view, the cancellation of a sale of capital assets would not be such a subsequent event so as to change the nature of the receipt of the forfeited amounts. 14. The specific provisions of Section 51 of the Income Tax Act, 1961 which provide for the computation of the cost of acquisition for determining the capital gains arising from the transfer of a particular asset fortify this view. Section 51 reads : "51. Advance money received. - Where any capital asset was on any previous occasion the subject of negotiations for its transfer, any advance or other money received and retained by the assessee in respect of such negotiations shall be deducted from the cost for which the asset was acquired or the written down value or the fair market value, as the case may be, in computing the cost of acquisition." (emphasis added) 15. Thus where there is a of transfer of a capital asset, if there was a previous occasion when there were negotiations for its transfer, and if "advance or other money" had been received and retained by the assessee in respect of such negotiations, such amounts will in effect be added to the value of the capital asset impacting on the ultimate assessment of capital gains. For this purpose, no distinction is made between moneys received and retained by way of `advance and `other money. The phrase `other money would cover, for example, deposits made by the purchaser for guaranteeing due performance of the contracts and not forming part of the consideration. The monies received on the previous occasions and retained by the vendorassessee cannot therefore, be treated as a revenue receipt. Section 51 to the extent states thus preserves the rule in Tattersalls case. 16. In the case before us there were negotiations for transfer of the rubber trees in question, which did not fructify in sale. The amounts forfeited referred only to the capital asset of the assessee and were directly related to the sale of such capital asset. The Tribunal correctly held that the advance money for sale of the rubber trees formed part of the capital asset of the assessee and that the sale, if materialised, would have resulted in a gain eligible to capital gains tax, provided there is a gain arising out of the same. But the Tribunal erred in overlooking the phrase `or other money in Section 51 in holding that the earnest money did not come within the purview of Section 51. No doubt, as held by the High Court in the decision reported in 1990 Vol. 190 ITR 509 (supra), there is a distinction between earnest money and advance, but that distinction looses its significance in the context of the express language of Section 51 to include `other money in addition to `advance. 17. The matter may be considered from another aspect. The amount forfeited by the assessee was in terms of clause 16 of the agreement which reads : "In the event of the Purchaser failing to pay any of the instalments hereby agreed to be paid by him on the date specified or violating any of the terms on its part to be performed, the Vendor shall have the right and liberty to cancel all rights hereby granted to the Purchaser any time after such violation and to realise from the Purchaser forthwith in a lump the entire balance amount then remaining to be paid. In the event of the balance amount remaining unpaid on demand the purchaser will not have any claim or right over the Rubber Trees standing or cut nor can be claim from the Vendor the earnest money deposit or the instalments paid till date." (emphasis added) 18. Such a clause has been construed as providing for compensation for breach of contract under Section 74 of the Indian Contract Act, 1872. [See Maula Bux v. Union of India, AIR 1970 SC 1955 and Shree Hanuman Cotton Mills and another v. Tata Air Craft Ltd., AIR 1970 SC 1986 .] 19. In determining whether compensation received for breach of a contract is a capital or trading receipt, the relevant rule has been formulated by Diplock L., J. in London and Thames Haven Oil Wharves Ltd. v. Attweell (Inspector of Taxes) 1968(70) ITR 460 at p. 488 as :"Where, pursuant to a legal right, a trader receives from another person compensation for the traders failure to receive a sum of money which, if it had been received, would have been credited to the amount of profits (if any) arising in any year from the trade carried on by him at the time when the compensation is so received, the compensation is to be treated for income tax purposes in the same way as that sum of money would have been treated if it had been received, instead of the compensation."20. The logic of the principle is that the assessees right to recover the compensation was to place the assessee in the same position as if the breach had not taken place. Applying the rule to this case , if the agreed sums of money under the agreements had been received by the assessee, they would have been credited in its account as a capital receipt. That being so, the forfeited amounts must also be treated as capital receipt.21. Finally, the High Court erred in proceeding on the basis that the agreement in question were agreements for sale but did not effect a sale. The terms of the agreements clearly show that they were agreement of sale where both payment of the price and delivery were deferred. Had the purchasers paid the purchase price in the agreed instalments their right to take delivery of the trees under the agreement was complete. | 1[ds]9. We are, unfortunately, unable to accept the reasoning or the conclusion of the High Court. The assessee does not carry on the business of selling trees. The question whether the sale proceeds of old and unyielding rubber trees grown and used for obtaining income as latex therefrom are capital receipt and whether the sale proceeds of unyielding trees purchased many years back as yielding trees are capital receipt was answered in the affirmative by the Constitution Bench of this Court in Commissioner of Agricultural Income Tax, Kerala v. Kailas Rubber & Co. Ltd., 1966 (Vol. 60) ITR 435. See also AKTM Vishnudatta Anantharajanam v. Commissioner of Agricultural Income Tax, Trivandrum, 1970(78) ITR 58.However, in our view, the cancellation of a sale of capital assets would not be such a subsequent event so as to change the nature of the receipt of the forfeited amounts.In the case before us there were negotiations for transfer of the rubber trees in question, which did not fructify in sale. The amounts forfeited referred only to the capital asset of the assessee and were directly related to the sale of such capital asset. The Tribunal correctly held that the advance money for sale of the rubber trees formed part of the capital asset of the assessee and that the sale, if materialised, would have resulted in a gain eligible to capital gains tax, provided there is a gain arising out of the same. But the Tribunal erred in overlooking the phrase `or other money in Section 51 in holding that the earnest money did not come within the purview of Section 51. No doubt, as held by the High Court in the decision reported in 1990 Vol. 190 ITR 509 (supra), there is a distinction between earnest money and advance, but that distinction looses its significance in the context of the express language of Section 51 to include `other money in addition to `advance.In determining whether compensation received for breach of a contract is a capital or trading receipt, the relevant rule has been formulated by Diplock L., J. in London and Thames Haven Oil Wharves Ltd. v. Attweell (Inspector of Taxes) 1968(70) ITR 460 at p. 488 as :"Where, pursuant to a legal right, a trader receives from another person compensation for the traders failure to receive a sum of money which, if it had been received, would have been credited to the amount of profits (if any) arising in any year from the trade carried on by him at the time when the compensation is so received, the compensation is to be treated for income tax purposes in the same way as that sum of money would have been treated if it had been received, instead of the compensation."20. The logic of the principle is that the assessees right to recover the compensation was to place the assessee in the same position as if the breach had not taken place. Applying the rule to this case , if the agreed sums of money under the agreements had been received by the assessee, they would have been credited in its account as a capital receipt. That being so, the forfeited amounts must also be treated as capital receipt.21. Finally, the High Court erred in proceeding on the basis that the agreement in question were agreements for sale but did not effect a sale. The terms of the agreements clearly show that they were agreement of sale where both payment of the price and delivery were deferred. Had the purchasers paid the purchase price in the agreed instalments their right to take delivery of the trees under the agreement was complete. | 1 | 2,561 | 675 | ### Instruction:
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asset could come into existence automatically by operation of law. When no demand for payment was made common sense requires that such amount should be entered into profit and loss account for the year and be treated as taxable." 13. However, in our view, the cancellation of a sale of capital assets would not be such a subsequent event so as to change the nature of the receipt of the forfeited amounts. 14. The specific provisions of Section 51 of the Income Tax Act, 1961 which provide for the computation of the cost of acquisition for determining the capital gains arising from the transfer of a particular asset fortify this view. Section 51 reads : "51. Advance money received. - Where any capital asset was on any previous occasion the subject of negotiations for its transfer, any advance or other money received and retained by the assessee in respect of such negotiations shall be deducted from the cost for which the asset was acquired or the written down value or the fair market value, as the case may be, in computing the cost of acquisition." (emphasis added) 15. Thus where there is a of transfer of a capital asset, if there was a previous occasion when there were negotiations for its transfer, and if "advance or other money" had been received and retained by the assessee in respect of such negotiations, such amounts will in effect be added to the value of the capital asset impacting on the ultimate assessment of capital gains. For this purpose, no distinction is made between moneys received and retained by way of `advance and `other money. The phrase `other money would cover, for example, deposits made by the purchaser for guaranteeing due performance of the contracts and not forming part of the consideration. The monies received on the previous occasions and retained by the vendorassessee cannot therefore, be treated as a revenue receipt. Section 51 to the extent states thus preserves the rule in Tattersalls case. 16. In the case before us there were negotiations for transfer of the rubber trees in question, which did not fructify in sale. The amounts forfeited referred only to the capital asset of the assessee and were directly related to the sale of such capital asset. The Tribunal correctly held that the advance money for sale of the rubber trees formed part of the capital asset of the assessee and that the sale, if materialised, would have resulted in a gain eligible to capital gains tax, provided there is a gain arising out of the same. But the Tribunal erred in overlooking the phrase `or other money in Section 51 in holding that the earnest money did not come within the purview of Section 51. No doubt, as held by the High Court in the decision reported in 1990 Vol. 190 ITR 509 (supra), there is a distinction between earnest money and advance, but that distinction looses its significance in the context of the express language of Section 51 to include `other money in addition to `advance. 17. The matter may be considered from another aspect. The amount forfeited by the assessee was in terms of clause 16 of the agreement which reads : "In the event of the Purchaser failing to pay any of the instalments hereby agreed to be paid by him on the date specified or violating any of the terms on its part to be performed, the Vendor shall have the right and liberty to cancel all rights hereby granted to the Purchaser any time after such violation and to realise from the Purchaser forthwith in a lump the entire balance amount then remaining to be paid. In the event of the balance amount remaining unpaid on demand the purchaser will not have any claim or right over the Rubber Trees standing or cut nor can be claim from the Vendor the earnest money deposit or the instalments paid till date." (emphasis added) 18. Such a clause has been construed as providing for compensation for breach of contract under Section 74 of the Indian Contract Act, 1872. [See Maula Bux v. Union of India, AIR 1970 SC 1955 and Shree Hanuman Cotton Mills and another v. Tata Air Craft Ltd., AIR 1970 SC 1986 .] 19. In determining whether compensation received for breach of a contract is a capital or trading receipt, the relevant rule has been formulated by Diplock L., J. in London and Thames Haven Oil Wharves Ltd. v. Attweell (Inspector of Taxes) 1968(70) ITR 460 at p. 488 as :"Where, pursuant to a legal right, a trader receives from another person compensation for the traders failure to receive a sum of money which, if it had been received, would have been credited to the amount of profits (if any) arising in any year from the trade carried on by him at the time when the compensation is so received, the compensation is to be treated for income tax purposes in the same way as that sum of money would have been treated if it had been received, instead of the compensation."20. The logic of the principle is that the assessees right to recover the compensation was to place the assessee in the same position as if the breach had not taken place. Applying the rule to this case , if the agreed sums of money under the agreements had been received by the assessee, they would have been credited in its account as a capital receipt. That being so, the forfeited amounts must also be treated as capital receipt.21. Finally, the High Court erred in proceeding on the basis that the agreement in question were agreements for sale but did not effect a sale. The terms of the agreements clearly show that they were agreement of sale where both payment of the price and delivery were deferred. Had the purchasers paid the purchase price in the agreed instalments their right to take delivery of the trees under the agreement was complete.
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9. We are, unfortunately, unable to accept the reasoning or the conclusion of the High Court. The assessee does not carry on the business of selling trees. The question whether the sale proceeds of old and unyielding rubber trees grown and used for obtaining income as latex therefrom are capital receipt and whether the sale proceeds of unyielding trees purchased many years back as yielding trees are capital receipt was answered in the affirmative by the Constitution Bench of this Court in Commissioner of Agricultural Income Tax, Kerala v. Kailas Rubber & Co. Ltd., 1966 (Vol. 60) ITR 435. See also AKTM Vishnudatta Anantharajanam v. Commissioner of Agricultural Income Tax, Trivandrum, 1970(78) ITR 58.However, in our view, the cancellation of a sale of capital assets would not be such a subsequent event so as to change the nature of the receipt of the forfeited amounts.In the case before us there were negotiations for transfer of the rubber trees in question, which did not fructify in sale. The amounts forfeited referred only to the capital asset of the assessee and were directly related to the sale of such capital asset. The Tribunal correctly held that the advance money for sale of the rubber trees formed part of the capital asset of the assessee and that the sale, if materialised, would have resulted in a gain eligible to capital gains tax, provided there is a gain arising out of the same. But the Tribunal erred in overlooking the phrase `or other money in Section 51 in holding that the earnest money did not come within the purview of Section 51. No doubt, as held by the High Court in the decision reported in 1990 Vol. 190 ITR 509 (supra), there is a distinction between earnest money and advance, but that distinction looses its significance in the context of the express language of Section 51 to include `other money in addition to `advance.In determining whether compensation received for breach of a contract is a capital or trading receipt, the relevant rule has been formulated by Diplock L., J. in London and Thames Haven Oil Wharves Ltd. v. Attweell (Inspector of Taxes) 1968(70) ITR 460 at p. 488 as :"Where, pursuant to a legal right, a trader receives from another person compensation for the traders failure to receive a sum of money which, if it had been received, would have been credited to the amount of profits (if any) arising in any year from the trade carried on by him at the time when the compensation is so received, the compensation is to be treated for income tax purposes in the same way as that sum of money would have been treated if it had been received, instead of the compensation."20. The logic of the principle is that the assessees right to recover the compensation was to place the assessee in the same position as if the breach had not taken place. Applying the rule to this case , if the agreed sums of money under the agreements had been received by the assessee, they would have been credited in its account as a capital receipt. That being so, the forfeited amounts must also be treated as capital receipt.21. Finally, the High Court erred in proceeding on the basis that the agreement in question were agreements for sale but did not effect a sale. The terms of the agreements clearly show that they were agreement of sale where both payment of the price and delivery were deferred. Had the purchasers paid the purchase price in the agreed instalments their right to take delivery of the trees under the agreement was complete.
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State of Orissa Vs. Messrs Johrimal Gajanand | was not impossible, it would not amount to any violation of the declarations by the assessee. We agree with the contention raised on behalf of the assessee that the proviso cannot be applied to a case of this type. In our opinion, the Tribunal came to the correct conclusion in the matter." 5. We are of the view that the High Court fell into patent error in holding that the sales in dispute were made by the assessee within the State of Orissa. It is not disputed that the said sales were in the course of inter-State trade. If the goods were to remain within the State of Orissa the sales could not be in the Course of inter-State trade. To make a sale in the course of inter-State trade, it is necessary that the contract must envisage the completion of the sale as well as the movement of goods to the other State in the course of inter-State trade. The very fact that the sales in dispute were the sales in the course of inter-State trade, they could not be the sales within the State in terms of Section 2(g) of the Act. The Act provides for a single point levy and the tax is payable at one point or the other. When the assessee purchased the goods free of tax by giving an undertaking that the goods would be resold within the State of Orissa and subsequently violated the undertaking by selling the goods in the course of inter-State trade and commerce, the provision to Section 5(2)(A)(a)(ii) of the Act is directly attracted and the assessee is liable to pay tax. A sale cannot be inside Orissa and at the same time in the course of inter-State trade and commerce. In order that a sale or purchase might be inter-State, it is essential that must be transport of goods from one State to another under the contract of sale or purchase. In Bengal Immunity Co. Ltd. v. State of Bihar occur the following observations which are apposite "A sale could be said to be in the course of inter-State trade only in if two conditions concur : (1) A sale of goods, and (2) a transport of those goods from one State to another under the contract of sale. Unless both these conditions are satisfied, there can be no sale in the course of inter-State trade." * It is the admitted case of the assessee that the sales in question were the sales in the course of inter-State trade and if that is the position then the question of the same sales being the sales within the State did not arise 6. We have, today, pronounced judgment in Industrial Minerals & Metals v. Sales Tax Officer, wherein we have held that a sale in the course of the export of goods out of the territory of India cannot be a sale at the same time within the State of Orissa. On the same principles, a sale in the course of inter-State trade and commerce cannot be a sale within the State of Orissa 7. There is, thus, patent violation of the undertaking given by the assessee. This Court in Himatsingka Timber Co. Ltd. v. State of Orissa dealing with Section 5(2)(A)(a)(ii) of the Act held as under "The tax was always leviable on the first sale and it would have been so levied but for the certificate which was furnished by the company when making purchases from the local dealers. The certificate was that the sleepers and timber were for resale in Orissa and when that condition was not fulfilled, the tax became payable even under Section 5(2)(A)(a)(ii) before the 1951 amendment." * 8. In Endupuri Narasimham & Son v. State of Orissa, certain sales to the petitioner therein were not include in the taxable turnover of the seller by reason of the registration certificate which the petitioner had obtained on a declaration that the goods were to be resold in Orissa. In violation of the declaration the petitioner sold the goods to dealers outside the State and he was taxed under Section 5(2) (A)(a)(ii) of the Act. This Court held that the imposition of the tax was not on the sales by the petitioner to person outside the State but on the purchases by him inside the State for which he gave an undertaking and violated the same by not selling the goods within the State of Orissa 9. Even otherwise, the High Court was not justified in holding that the onus for proving that the goods at the time of the contract were not within the State of Orissa was on the sales tax authority. The assessee on purchase of the goods became liable to pay the tax but he did not do so because it was a sale from a registered dealer to a registered dealer. The assessee saved the tax and postponed the event by giving an undertaking that he would sell the goods within the State. True to the undertaking the onus to show that the goods were actually sold within the State of Orissa was on the assessee. In any case, a contract of sale by which the goods are sold and are to be transported from one State to another cannot be made a lever for the argument that though the sale is in the course of inter-State trade and commerce but nevertheless it is a sale within the State of Orissa under Section 2(g) of the Act10. Our answer to the question referred, therefore, on the facts and in the circumstances of this case, is that the Member, Sales Tax Tribunal, was not correct in holding that even the sales in the course of inter-State trade and commerce can be sales inside the State if the goods were inside the State of Orissa and for coming to that conclusion, the Tribunal wrongly and illegally relied upon the definition of sale under Section 2(g) of the Act including the explanation therein | 1[ds]5. We are of the view that the High Court fell into patent error in holding that the sales in dispute were made by the assessee within the State of Orissa. It is not disputed that the said sales were in the course oftrade. If the goods were to remain within the State of Orissa the sales could not be in the Course oftrade. To make a sale in the course oftrade, it is necessary that the contract must envisage the completion of the sale as well as the movement of goods to the other State in the course oftrade. The very fact that the sales in dispute were the sales in the course oftrade, they could not be the sales within the State in terms of Section 2(g) of the Act. The Act provides for a single point levy and the tax is payable at one point or the other. When the assessee purchased the goods free of tax by giving an undertaking that the goods would be resold within the State of Orissa and subsequently violated the undertaking by selling the goods in the course oftrade and commerce, the provision to Section 5(2)(A)(a)(ii) of the Act is directly attracted and the assessee is liable to pay tax. A sale cannot be inside Orissa and at the same time in the course oftrade and commerce. In order that a sale or purchase might beit is essential that must be transport of goods from one State to another under the contract of sale or purchase. In Bengal Immunity Co. Ltd. v. State of Bihar occur the following observations which areEven otherwise, the High Court was not justified in holding that the onus for proving that the goods at the time of the contract were not within the State of Orissa was on the sales tax authority. The assessee on purchase of the goods became liable to pay the tax but he did not do so because it was a sale from a registered dealer to a registered dealer. The assessee saved the tax and postponed the event by giving an undertaking that he would sell the goods within the State. True to the undertaking the onus to show that the goods were actually sold within the State of Orissa was on the assessee. In any case, a contract of sale by which the goods are sold and are to be transported from one State to another cannot be made a lever for the argument that though the sale is in the course oftrade and commerce but nevertheless it is a sale within the State of Orissa under Section 2(g) of the Act10. Our answer to the question referred, therefore, on the facts and in the circumstances of this case, is that the Member, Sales Tax Tribunal, was not correct in holding that even the sales in the course oftrade and commerce can be sales inside the State if the goods were inside the State of Orissa and for coming to that conclusion, the Tribunal wrongly and illegally relied upon the definition of sale under Section 2(g) of the Act including the explanation therein | 1 | 2,332 | 576 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
was not impossible, it would not amount to any violation of the declarations by the assessee. We agree with the contention raised on behalf of the assessee that the proviso cannot be applied to a case of this type. In our opinion, the Tribunal came to the correct conclusion in the matter." 5. We are of the view that the High Court fell into patent error in holding that the sales in dispute were made by the assessee within the State of Orissa. It is not disputed that the said sales were in the course of inter-State trade. If the goods were to remain within the State of Orissa the sales could not be in the Course of inter-State trade. To make a sale in the course of inter-State trade, it is necessary that the contract must envisage the completion of the sale as well as the movement of goods to the other State in the course of inter-State trade. The very fact that the sales in dispute were the sales in the course of inter-State trade, they could not be the sales within the State in terms of Section 2(g) of the Act. The Act provides for a single point levy and the tax is payable at one point or the other. When the assessee purchased the goods free of tax by giving an undertaking that the goods would be resold within the State of Orissa and subsequently violated the undertaking by selling the goods in the course of inter-State trade and commerce, the provision to Section 5(2)(A)(a)(ii) of the Act is directly attracted and the assessee is liable to pay tax. A sale cannot be inside Orissa and at the same time in the course of inter-State trade and commerce. In order that a sale or purchase might be inter-State, it is essential that must be transport of goods from one State to another under the contract of sale or purchase. In Bengal Immunity Co. Ltd. v. State of Bihar occur the following observations which are apposite "A sale could be said to be in the course of inter-State trade only in if two conditions concur : (1) A sale of goods, and (2) a transport of those goods from one State to another under the contract of sale. Unless both these conditions are satisfied, there can be no sale in the course of inter-State trade." * It is the admitted case of the assessee that the sales in question were the sales in the course of inter-State trade and if that is the position then the question of the same sales being the sales within the State did not arise 6. We have, today, pronounced judgment in Industrial Minerals & Metals v. Sales Tax Officer, wherein we have held that a sale in the course of the export of goods out of the territory of India cannot be a sale at the same time within the State of Orissa. On the same principles, a sale in the course of inter-State trade and commerce cannot be a sale within the State of Orissa 7. There is, thus, patent violation of the undertaking given by the assessee. This Court in Himatsingka Timber Co. Ltd. v. State of Orissa dealing with Section 5(2)(A)(a)(ii) of the Act held as under "The tax was always leviable on the first sale and it would have been so levied but for the certificate which was furnished by the company when making purchases from the local dealers. The certificate was that the sleepers and timber were for resale in Orissa and when that condition was not fulfilled, the tax became payable even under Section 5(2)(A)(a)(ii) before the 1951 amendment." * 8. In Endupuri Narasimham & Son v. State of Orissa, certain sales to the petitioner therein were not include in the taxable turnover of the seller by reason of the registration certificate which the petitioner had obtained on a declaration that the goods were to be resold in Orissa. In violation of the declaration the petitioner sold the goods to dealers outside the State and he was taxed under Section 5(2) (A)(a)(ii) of the Act. This Court held that the imposition of the tax was not on the sales by the petitioner to person outside the State but on the purchases by him inside the State for which he gave an undertaking and violated the same by not selling the goods within the State of Orissa 9. Even otherwise, the High Court was not justified in holding that the onus for proving that the goods at the time of the contract were not within the State of Orissa was on the sales tax authority. The assessee on purchase of the goods became liable to pay the tax but he did not do so because it was a sale from a registered dealer to a registered dealer. The assessee saved the tax and postponed the event by giving an undertaking that he would sell the goods within the State. True to the undertaking the onus to show that the goods were actually sold within the State of Orissa was on the assessee. In any case, a contract of sale by which the goods are sold and are to be transported from one State to another cannot be made a lever for the argument that though the sale is in the course of inter-State trade and commerce but nevertheless it is a sale within the State of Orissa under Section 2(g) of the Act10. Our answer to the question referred, therefore, on the facts and in the circumstances of this case, is that the Member, Sales Tax Tribunal, was not correct in holding that even the sales in the course of inter-State trade and commerce can be sales inside the State if the goods were inside the State of Orissa and for coming to that conclusion, the Tribunal wrongly and illegally relied upon the definition of sale under Section 2(g) of the Act including the explanation therein
### Response:
1
### Explanation:
5. We are of the view that the High Court fell into patent error in holding that the sales in dispute were made by the assessee within the State of Orissa. It is not disputed that the said sales were in the course oftrade. If the goods were to remain within the State of Orissa the sales could not be in the Course oftrade. To make a sale in the course oftrade, it is necessary that the contract must envisage the completion of the sale as well as the movement of goods to the other State in the course oftrade. The very fact that the sales in dispute were the sales in the course oftrade, they could not be the sales within the State in terms of Section 2(g) of the Act. The Act provides for a single point levy and the tax is payable at one point or the other. When the assessee purchased the goods free of tax by giving an undertaking that the goods would be resold within the State of Orissa and subsequently violated the undertaking by selling the goods in the course oftrade and commerce, the provision to Section 5(2)(A)(a)(ii) of the Act is directly attracted and the assessee is liable to pay tax. A sale cannot be inside Orissa and at the same time in the course oftrade and commerce. In order that a sale or purchase might beit is essential that must be transport of goods from one State to another under the contract of sale or purchase. In Bengal Immunity Co. Ltd. v. State of Bihar occur the following observations which areEven otherwise, the High Court was not justified in holding that the onus for proving that the goods at the time of the contract were not within the State of Orissa was on the sales tax authority. The assessee on purchase of the goods became liable to pay the tax but he did not do so because it was a sale from a registered dealer to a registered dealer. The assessee saved the tax and postponed the event by giving an undertaking that he would sell the goods within the State. True to the undertaking the onus to show that the goods were actually sold within the State of Orissa was on the assessee. In any case, a contract of sale by which the goods are sold and are to be transported from one State to another cannot be made a lever for the argument that though the sale is in the course oftrade and commerce but nevertheless it is a sale within the State of Orissa under Section 2(g) of the Act10. Our answer to the question referred, therefore, on the facts and in the circumstances of this case, is that the Member, Sales Tax Tribunal, was not correct in holding that even the sales in the course oftrade and commerce can be sales inside the State if the goods were inside the State of Orissa and for coming to that conclusion, the Tribunal wrongly and illegally relied upon the definition of sale under Section 2(g) of the Act including the explanation therein
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New India Assurance Co. ltd Vs. Anita & Others | dated 13.12.2005, the operative part of which reads as under: - "In view of the above findings, I am of the opinion that the petitioners are entitled for the relief. Accordingly I direct respondent no.3 insurance company to pay Rs.2,19,000/- along with interest of 9% p.a. from the date of this petition till its realization by means of crossed cheques in the name of the petitioners within one month from today." 4. The appellant challenged the award by filing an appeal under Section 173 of the Act mainly on the ground that the evidence produced before the Tribunal to prove that the offending vehicle was insured was legally inadmissible. The learned Single Judge of the High Court noted that the claim petition had been misplaced in the office of the Tribunal sometime in 1994; that the same was reconstructed in August 2000 and, thereafter, the parties were given opportunity to lead additional evidence and held that the Tribunal did not commit any error by considering the secondary evidence produced by the owner of the vehicle to prove that the same was duly insured. The appellants plea that the day book pertaining to the year 1981-82, which contained an entry of Rs.2043/- towards premium for insurance of the offending vehicle and copy of the balance sheet could not have been considered by the Tribunal was rejected by the learned Single Judge by making the following observations: "The insurance policy has not come on record either from the owner or by the Insurance Company at the time of retrial. The accident is dated 9th February, 1981 in respect of which the claim petition was filed in August, 1981. The owner claimed to have filed the insurance policy before the learned Tribunal. However, the same cannot be confirmed because the record of the learned Tribunal was lost in 1994 and was reconstructed in the year 2000. The owner has successfully led secondary evidence to prove the payment of premium for insurance of the bus in question by means of Ex.R2W1/1 and Ex.R2W1/2. The appellant has not been able to rebut the secondary evidence led by the owner of the offending vehicle. This is a case of civil nature where the test of preponderance of probability has to be applied and the presumption has to be drawn under Section 114 of the Indian Evidence Act. The appellant has not led any evidence to rebut the Ex.R2W1 and Ex.R2W1/2. The appellant has also admitted that the policy number given by the claimant as well as by the owner of the offending vehicle pertains to their office. Even if the record pertaining to the said policy was lost, some evidence could have been led by the appellant to rebut the evidence led by the owner of the offending vehicle." Shri Atul Nanda, learned counsel for the appellant argued that the factum of insurance of the offending vehicle by the appellant-company cannot be treated as proved because the original insurance policy was not produced by the owner. He submitted that the Tribunal and the High Court committed serious error by considering the secondary evidence produced by the owner in the form of the day book and the balance sheet. 5. In our opinion, there is no merit in the submissions of the learned counsel. Admittedly, the claim petition was filed on 7.8.1981. The same remained pending till 1994, when the file was lost in the office of the Tribunal. For the next 8 years, the file could not be traced out and only in August, 2000 the Tribunal issued direction for reconstruction thereof. Thereafter, the parties were allowed to lead secondary evidence. The owner claimed that it had filed the original insurance policy but the same was lost in 1994 along with the file of the case and, therefore, it led secondary evidence to prove the factum of insurance by producing the original day book pertaining to 1981-82 which contained an entry of Rs.2043/- towards premium for insurance of the offending vehicle for the period from 12.11.1980 to 11.11.1981. The owner also produced the balance sheet for the year 1980-81 which reflected payment of premium. These records were maintained by the owner of the vehicle in the ordinary course of his business. Therefore, the same could be treated as legally admissible evidence (Section 34 of the Indian Evidence Act). On its part, the appellant did not produce any evidence to rebut the entries made in the day book and the balance sheet produced by the owner. The witness appearing on its behalf admitted that policy number given by the claimant and the owner of the offending vehicle pertains to the vehicle which was involved in the accident but the record of the policy was not produced before the Tribunal. This being the position, the Tribunal did not commit any error by taking into consideration the secondary evidence produced by the owner to prove that the offending vehicle was duly insured and the High Court rightly refused to interfere with the award passed by the Tribunal. 6. We may also observe that a Tribunal constituted under the Act is not a regular Court and it is required to decide applications filed for compensation by adopting a summary procedure consistent with the rules of natural justice (Sections 168 and 169(1) of the Act). By virtue of Section 169(2), the Tribunal is clothed with the powers of a Civil Court for the purpose of taking evidence on oath, enforcing the attendance of witnesses and compelling the discovery and production of documents and material objects but there is nothing in the Act from which it can be inferred that the Tribunal is bound by the technical rules of evidence. Therefore, the Tribunal cannot be faulted for having allowed the parties to lead secondary evidence. Rather, that was the only course available to the Tribunal for doing justice to the parties because the original file was lost in 1994 and the case had to be decided on the basis of reconstructed file. | 0[ds]5. In our opinion, there is no merit in the submissions of the learned counsel. Admittedly, the claim petition was filed on 7.8.1981. The same remained pending till 1994, when the file was lost in the office of the Tribunal. For the next 8 years, the file could not be traced out and only in August, 2000 the Tribunal issued direction for reconstruction thereof. Thereafter, the parties were allowed to lead secondary evidence. The owner claimed that it had filed the original insurance policy but the same was lost in 1994 along with the file of the case and, therefore, it led secondary evidence to prove the factum of insurance by producing the original day book pertaining to 1981-82 which contained an entry of Rs.2043/- towards premium for insurance of the offending vehicle for the period from 12.11.1980 to 11.11.1981. The owner also produced the balance sheet for the year 1980-81 which reflected payment of premium. These records were maintained by the owner of the vehicle in the ordinary course of his business. Therefore, the same could be treated as legally admissible evidence (Section 34 of the Indian Evidence Act). On its part, the appellant did not produce any evidence to rebut the entries made in the day book and the balance sheet produced by the owner. The witness appearing on its behalf admitted that policy number given by the claimant and the owner of the offending vehicle pertains to the vehicle which was involved in the accident but the record of the policy was not produced before the Tribunal. This being the position, the Tribunal did not commit any error by taking into consideration the secondary evidence produced by the owner to prove that the offending vehicle was duly insured and the High Court rightly refused to interfere with the award passed by the Tribunal6. We may also observe that a Tribunal constituted under the Act is not a regular Court and it is required to decide applications filed for compensation by adopting a summary procedure consistent with the rules of natural justice (Sections 168 and 169(1) of the Act). By virtue of Section 169(2), the Tribunal is clothed with the powers of a Civil Court for the purpose of taking evidence on oath, enforcing the attendance of witnesses and compelling the discovery and production of documents and material objects but there is nothing in the Act from which it can be inferred that the Tribunal is bound by the technical rules of evidence. Therefore, the Tribunal cannot be faulted for having allowed the parties to lead secondary evidence. Rather, that was the only course available to the Tribunal for doing justice to the parties because the original file was lost in 1994 and the case had to be decided on the basis of reconstructed file | 0 | 1,401 | 513 | ### 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:
dated 13.12.2005, the operative part of which reads as under: - "In view of the above findings, I am of the opinion that the petitioners are entitled for the relief. Accordingly I direct respondent no.3 insurance company to pay Rs.2,19,000/- along with interest of 9% p.a. from the date of this petition till its realization by means of crossed cheques in the name of the petitioners within one month from today." 4. The appellant challenged the award by filing an appeal under Section 173 of the Act mainly on the ground that the evidence produced before the Tribunal to prove that the offending vehicle was insured was legally inadmissible. The learned Single Judge of the High Court noted that the claim petition had been misplaced in the office of the Tribunal sometime in 1994; that the same was reconstructed in August 2000 and, thereafter, the parties were given opportunity to lead additional evidence and held that the Tribunal did not commit any error by considering the secondary evidence produced by the owner of the vehicle to prove that the same was duly insured. The appellants plea that the day book pertaining to the year 1981-82, which contained an entry of Rs.2043/- towards premium for insurance of the offending vehicle and copy of the balance sheet could not have been considered by the Tribunal was rejected by the learned Single Judge by making the following observations: "The insurance policy has not come on record either from the owner or by the Insurance Company at the time of retrial. The accident is dated 9th February, 1981 in respect of which the claim petition was filed in August, 1981. The owner claimed to have filed the insurance policy before the learned Tribunal. However, the same cannot be confirmed because the record of the learned Tribunal was lost in 1994 and was reconstructed in the year 2000. The owner has successfully led secondary evidence to prove the payment of premium for insurance of the bus in question by means of Ex.R2W1/1 and Ex.R2W1/2. The appellant has not been able to rebut the secondary evidence led by the owner of the offending vehicle. This is a case of civil nature where the test of preponderance of probability has to be applied and the presumption has to be drawn under Section 114 of the Indian Evidence Act. The appellant has not led any evidence to rebut the Ex.R2W1 and Ex.R2W1/2. The appellant has also admitted that the policy number given by the claimant as well as by the owner of the offending vehicle pertains to their office. Even if the record pertaining to the said policy was lost, some evidence could have been led by the appellant to rebut the evidence led by the owner of the offending vehicle." Shri Atul Nanda, learned counsel for the appellant argued that the factum of insurance of the offending vehicle by the appellant-company cannot be treated as proved because the original insurance policy was not produced by the owner. He submitted that the Tribunal and the High Court committed serious error by considering the secondary evidence produced by the owner in the form of the day book and the balance sheet. 5. In our opinion, there is no merit in the submissions of the learned counsel. Admittedly, the claim petition was filed on 7.8.1981. The same remained pending till 1994, when the file was lost in the office of the Tribunal. For the next 8 years, the file could not be traced out and only in August, 2000 the Tribunal issued direction for reconstruction thereof. Thereafter, the parties were allowed to lead secondary evidence. The owner claimed that it had filed the original insurance policy but the same was lost in 1994 along with the file of the case and, therefore, it led secondary evidence to prove the factum of insurance by producing the original day book pertaining to 1981-82 which contained an entry of Rs.2043/- towards premium for insurance of the offending vehicle for the period from 12.11.1980 to 11.11.1981. The owner also produced the balance sheet for the year 1980-81 which reflected payment of premium. These records were maintained by the owner of the vehicle in the ordinary course of his business. Therefore, the same could be treated as legally admissible evidence (Section 34 of the Indian Evidence Act). On its part, the appellant did not produce any evidence to rebut the entries made in the day book and the balance sheet produced by the owner. The witness appearing on its behalf admitted that policy number given by the claimant and the owner of the offending vehicle pertains to the vehicle which was involved in the accident but the record of the policy was not produced before the Tribunal. This being the position, the Tribunal did not commit any error by taking into consideration the secondary evidence produced by the owner to prove that the offending vehicle was duly insured and the High Court rightly refused to interfere with the award passed by the Tribunal. 6. We may also observe that a Tribunal constituted under the Act is not a regular Court and it is required to decide applications filed for compensation by adopting a summary procedure consistent with the rules of natural justice (Sections 168 and 169(1) of the Act). By virtue of Section 169(2), the Tribunal is clothed with the powers of a Civil Court for the purpose of taking evidence on oath, enforcing the attendance of witnesses and compelling the discovery and production of documents and material objects but there is nothing in the Act from which it can be inferred that the Tribunal is bound by the technical rules of evidence. Therefore, the Tribunal cannot be faulted for having allowed the parties to lead secondary evidence. Rather, that was the only course available to the Tribunal for doing justice to the parties because the original file was lost in 1994 and the case had to be decided on the basis of reconstructed file.
### Response:
0
### Explanation:
5. In our opinion, there is no merit in the submissions of the learned counsel. Admittedly, the claim petition was filed on 7.8.1981. The same remained pending till 1994, when the file was lost in the office of the Tribunal. For the next 8 years, the file could not be traced out and only in August, 2000 the Tribunal issued direction for reconstruction thereof. Thereafter, the parties were allowed to lead secondary evidence. The owner claimed that it had filed the original insurance policy but the same was lost in 1994 along with the file of the case and, therefore, it led secondary evidence to prove the factum of insurance by producing the original day book pertaining to 1981-82 which contained an entry of Rs.2043/- towards premium for insurance of the offending vehicle for the period from 12.11.1980 to 11.11.1981. The owner also produced the balance sheet for the year 1980-81 which reflected payment of premium. These records were maintained by the owner of the vehicle in the ordinary course of his business. Therefore, the same could be treated as legally admissible evidence (Section 34 of the Indian Evidence Act). On its part, the appellant did not produce any evidence to rebut the entries made in the day book and the balance sheet produced by the owner. The witness appearing on its behalf admitted that policy number given by the claimant and the owner of the offending vehicle pertains to the vehicle which was involved in the accident but the record of the policy was not produced before the Tribunal. This being the position, the Tribunal did not commit any error by taking into consideration the secondary evidence produced by the owner to prove that the offending vehicle was duly insured and the High Court rightly refused to interfere with the award passed by the Tribunal6. We may also observe that a Tribunal constituted under the Act is not a regular Court and it is required to decide applications filed for compensation by adopting a summary procedure consistent with the rules of natural justice (Sections 168 and 169(1) of the Act). By virtue of Section 169(2), the Tribunal is clothed with the powers of a Civil Court for the purpose of taking evidence on oath, enforcing the attendance of witnesses and compelling the discovery and production of documents and material objects but there is nothing in the Act from which it can be inferred that the Tribunal is bound by the technical rules of evidence. Therefore, the Tribunal cannot be faulted for having allowed the parties to lead secondary evidence. Rather, that was the only course available to the Tribunal for doing justice to the parties because the original file was lost in 1994 and the case had to be decided on the basis of reconstructed file
|
Paresh Chandra Chatterjee Vs. State of Assam & Another | is not justiciable. The question is whether the Act satisfies the said conditions. The relevant provisions of the Act dealing with compensation in the case of requisition of land are as under.Section. 6 (1) Where any land requisitioned under S. 3 is not acquired and is to be released from requisition it will revert to the owner and the Collector will deliver the possession of the land to such owner or interested person who was recognised under S. 7(3).Section 7. (3) Where any land is requisitioned under S. 3, there shall be paid to every person interested such compensation as may be agreed upon in writing between such person and the Collector, in respect of :-(a) the requisition of such land; and(b) any damage done during the period of requisition to such land other than what may have been sustained by natural causes.Section. 8, (1) The Collector shall in every case-.......... ........ ........ ............(b) where there is any disagreement with regard to the compensation payable under sub-sec. (3) of S. 7 between the Collector and the person to whom possession of any land is delivered under S. 6, refer the matter to the decision of the Court.(2) The provisions of the Land Acquisition Act, 1894, shall mutatis mutandis apply in respect of any reference made to the Court under sub-sec. (i).These provisions provide for the payment of agreed compensation, and, in the case of disagreement between the Collector and the person to whom possession of any land is delivered under S: 6, for a reference to the Court. In respect of any such reference to the Court, the provisions of the Land Acquisition Act, 1894, shall mutatis mutandis apply. The argument is that in the matter of requisition, the Land Acquisition Act, 1894, does not prescribe and principles for awarding compensation and therefore, in respect of requisition, either sub-sec. (2) of S. 8 is not applicable or becomes otiose, with the result that the Act does not lay down any principles on which and manner in which the compensation is to be determined. This argument ignores the expression "mutatis mutandis" in sub-s. (2) of S. 8. The said expression means "with due alteration of details". The Land Acquisition Act applies only to acquisition of land as distinguished from requisition of land, Acquisition deprives the owner permanently of his land; and requisition deprives him only of his right to present possession. When the necessity for which the land was requisitioned ceased, it may be made to revert to him. Sub-section (2) of S. 8 of the Act makes the provisions of the Land Acquisition Act, 1894, with due alterations of details or appropriate changes, apply in respect of any reference made to the Court. Part III of the Land Acquisition Act provides for a reference to the Court and the procedure thereof. With appropriate modifications the provisions of that Chapter apply to a reference in respect of compensation for requisition. Sections 23, 24 and 25 lay down the principles for ascertaining the amount of compensation payable to a person whose land has been acquired. We do not see any difficulty in applying those principles for paying compensation in the matter of requisition of land. While in the case of land acquired, the market value of the land is ascertained, in the case of requisition of land, the compensation to the owner for depriving him of his possession for a stated period will be ascertained. It may be that appropriate changes in the phraseology used in the said provisions may have to be made to apply the principles underlying those provisions. To illustrate: S. 23 of the Land Acquisition Act says :(1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration-first the market value of the land at the date of the publication of the notification under S. 4, sub-sec. (1);secondly, the damage sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the collectors taking possession thereof;thirdly, the damage if any, sustained by the person interested, at the time of the Collectors taking possession of the land, by reason of severing such land from his other land;fourthly, the damage if any sustained by the person interested, at the time of the Collectors taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings;fifthly, if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses if any incidental to such change andsixthly, the damage if any bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under S. 6 and the time of the Collectors taking possession of the land2. In addition to the market value of the land as above provided, the Court shall in every case award a sum of fifteen per centum on such market value, in consideration of the compulsory nature of the acquisition. "If instead of the word "acquisition" the word "requisition" is read, and instead of the words "the market value of the land" the words "the market value of the interest in the land" of which the owner has been deprived are read, the two sub-sections of the section can, without any difficulty, be applied to the determination of compensation for requisition of a land. So too, the other sections can be applied. If the argument of learned counsel for the petitioner be accepted, we would be attributing to the Legislature an incongruity namely, that while it provides principles of compensation in the matter of acquisition, it omits to do so in the matter of requisition, though in both the cases a reference to the Court is provided. For the aforesaid reasons, we reject this contention. | 0[ds]The Act in essence provides only for requisition or acquisition of lands in public interest. It has nothing to do with tea industry, and as for that matter anyTea Act, therefore, not only does not expressly prohibit the acquisition of any land, but also in express terms provides for the replacement, of the area acquired by other land for the purpose of tea plantation. Though the Tea Act does not in term visualize the contingency of requisition as distinguished from acquisition, we cannot come to a different conclusion in respect of it, for the word "acquisition" must have been used in a comprehensive sense so as to include requisition also. That apart, the provisions of the Act do not expressly or by necessary implication prohibit requisition of a land used directly or incidentally for the purpose of plantation of tea. The rules made under the Act only provide for the control of tea industry and they have no bearing on the question of requisition or acquisition of land. A comparative study of both the Acts makes it clear that the two Acts deal with different matters and were passed for different purposes. The Tea Act in no sense of the term can be described as one altering, repealing or amending the Act passed by the Assam Legislature. This contention is, therefore,instead of the word "acquisition" the word "requisition" is read, and instead of the words "the market value of the land" the words "the market value of the interest in the land" of which the owner has been deprived are read, the two sub-sections of the section can, without any difficulty, be applied to the determination of compensation for requisition of a land. So too, the other sections can be applied. If the argument of learned counsel for the petitioner be accepted, we would be attributing to the Legislature an incongruity namely, that while it provides principles of compensation in the matter of acquisition, it omits to do so in the matter of requisition, though in both the cases a reference to the Court is provided. For the aforesaid reasons, we reject thisargument ignores the expression "mutatis mutandis" in sub-s. (2) of S. 8. The said expression means "with due alteration of details". The Land Acquisition Act applies only to acquisition of land as distinguished from requisition of land, Acquisition deprives the owner permanently of his land; and requisition deprives him only of his right to present possession. When the necessity for which the land was requisitioned ceased, it may be made to revert to him. Sub-section (2) of S. 8 of the Act makes the provisions ofthe Land Acquisition Act, 1894, with due alterations of details or appropriate changes, apply in respect of any reference made to the Court. Part III of the Land Acquisition Act provides for a reference to the Court and the procedure thereof. With appropriate modifications the provisions of that Chapter apply to a reference in respect of compensation for requisition. Sections 23, 24 and 25 lay down the principles for ascertaining the amount of compensation payable to a person whose land has been acquired. We do not see any difficulty in applying those principles for paying compensation in the matter of requisition of land. While in the case of land acquired, the market value of the land is ascertained, in the case of requisition of land, the compensation to the owner for depriving him of his possession for a stated period will be ascertained. It may be that appropriate changes in the phraseology used in the said provisions may have to be made to apply the principles underlying those provisions. | 0 | 2,914 | 682 | ### 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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is not justiciable. The question is whether the Act satisfies the said conditions. The relevant provisions of the Act dealing with compensation in the case of requisition of land are as under.Section. 6 (1) Where any land requisitioned under S. 3 is not acquired and is to be released from requisition it will revert to the owner and the Collector will deliver the possession of the land to such owner or interested person who was recognised under S. 7(3).Section 7. (3) Where any land is requisitioned under S. 3, there shall be paid to every person interested such compensation as may be agreed upon in writing between such person and the Collector, in respect of :-(a) the requisition of such land; and(b) any damage done during the period of requisition to such land other than what may have been sustained by natural causes.Section. 8, (1) The Collector shall in every case-.......... ........ ........ ............(b) where there is any disagreement with regard to the compensation payable under sub-sec. (3) of S. 7 between the Collector and the person to whom possession of any land is delivered under S. 6, refer the matter to the decision of the Court.(2) The provisions of the Land Acquisition Act, 1894, shall mutatis mutandis apply in respect of any reference made to the Court under sub-sec. (i).These provisions provide for the payment of agreed compensation, and, in the case of disagreement between the Collector and the person to whom possession of any land is delivered under S: 6, for a reference to the Court. In respect of any such reference to the Court, the provisions of the Land Acquisition Act, 1894, shall mutatis mutandis apply. The argument is that in the matter of requisition, the Land Acquisition Act, 1894, does not prescribe and principles for awarding compensation and therefore, in respect of requisition, either sub-sec. (2) of S. 8 is not applicable or becomes otiose, with the result that the Act does not lay down any principles on which and manner in which the compensation is to be determined. This argument ignores the expression "mutatis mutandis" in sub-s. (2) of S. 8. The said expression means "with due alteration of details". The Land Acquisition Act applies only to acquisition of land as distinguished from requisition of land, Acquisition deprives the owner permanently of his land; and requisition deprives him only of his right to present possession. When the necessity for which the land was requisitioned ceased, it may be made to revert to him. Sub-section (2) of S. 8 of the Act makes the provisions of the Land Acquisition Act, 1894, with due alterations of details or appropriate changes, apply in respect of any reference made to the Court. Part III of the Land Acquisition Act provides for a reference to the Court and the procedure thereof. With appropriate modifications the provisions of that Chapter apply to a reference in respect of compensation for requisition. Sections 23, 24 and 25 lay down the principles for ascertaining the amount of compensation payable to a person whose land has been acquired. We do not see any difficulty in applying those principles for paying compensation in the matter of requisition of land. While in the case of land acquired, the market value of the land is ascertained, in the case of requisition of land, the compensation to the owner for depriving him of his possession for a stated period will be ascertained. It may be that appropriate changes in the phraseology used in the said provisions may have to be made to apply the principles underlying those provisions. To illustrate: S. 23 of the Land Acquisition Act says :(1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration-first the market value of the land at the date of the publication of the notification under S. 4, sub-sec. (1);secondly, the damage sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the collectors taking possession thereof;thirdly, the damage if any, sustained by the person interested, at the time of the Collectors taking possession of the land, by reason of severing such land from his other land;fourthly, the damage if any sustained by the person interested, at the time of the Collectors taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings;fifthly, if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses if any incidental to such change andsixthly, the damage if any bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under S. 6 and the time of the Collectors taking possession of the land2. In addition to the market value of the land as above provided, the Court shall in every case award a sum of fifteen per centum on such market value, in consideration of the compulsory nature of the acquisition. "If instead of the word "acquisition" the word "requisition" is read, and instead of the words "the market value of the land" the words "the market value of the interest in the land" of which the owner has been deprived are read, the two sub-sections of the section can, without any difficulty, be applied to the determination of compensation for requisition of a land. So too, the other sections can be applied. If the argument of learned counsel for the petitioner be accepted, we would be attributing to the Legislature an incongruity namely, that while it provides principles of compensation in the matter of acquisition, it omits to do so in the matter of requisition, though in both the cases a reference to the Court is provided. For the aforesaid reasons, we reject this contention.
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The Act in essence provides only for requisition or acquisition of lands in public interest. It has nothing to do with tea industry, and as for that matter anyTea Act, therefore, not only does not expressly prohibit the acquisition of any land, but also in express terms provides for the replacement, of the area acquired by other land for the purpose of tea plantation. Though the Tea Act does not in term visualize the contingency of requisition as distinguished from acquisition, we cannot come to a different conclusion in respect of it, for the word "acquisition" must have been used in a comprehensive sense so as to include requisition also. That apart, the provisions of the Act do not expressly or by necessary implication prohibit requisition of a land used directly or incidentally for the purpose of plantation of tea. The rules made under the Act only provide for the control of tea industry and they have no bearing on the question of requisition or acquisition of land. A comparative study of both the Acts makes it clear that the two Acts deal with different matters and were passed for different purposes. The Tea Act in no sense of the term can be described as one altering, repealing or amending the Act passed by the Assam Legislature. This contention is, therefore,instead of the word "acquisition" the word "requisition" is read, and instead of the words "the market value of the land" the words "the market value of the interest in the land" of which the owner has been deprived are read, the two sub-sections of the section can, without any difficulty, be applied to the determination of compensation for requisition of a land. So too, the other sections can be applied. If the argument of learned counsel for the petitioner be accepted, we would be attributing to the Legislature an incongruity namely, that while it provides principles of compensation in the matter of acquisition, it omits to do so in the matter of requisition, though in both the cases a reference to the Court is provided. For the aforesaid reasons, we reject thisargument ignores the expression "mutatis mutandis" in sub-s. (2) of S. 8. The said expression means "with due alteration of details". The Land Acquisition Act applies only to acquisition of land as distinguished from requisition of land, Acquisition deprives the owner permanently of his land; and requisition deprives him only of his right to present possession. When the necessity for which the land was requisitioned ceased, it may be made to revert to him. Sub-section (2) of S. 8 of the Act makes the provisions ofthe Land Acquisition Act, 1894, with due alterations of details or appropriate changes, apply in respect of any reference made to the Court. Part III of the Land Acquisition Act provides for a reference to the Court and the procedure thereof. With appropriate modifications the provisions of that Chapter apply to a reference in respect of compensation for requisition. Sections 23, 24 and 25 lay down the principles for ascertaining the amount of compensation payable to a person whose land has been acquired. We do not see any difficulty in applying those principles for paying compensation in the matter of requisition of land. While in the case of land acquired, the market value of the land is ascertained, in the case of requisition of land, the compensation to the owner for depriving him of his possession for a stated period will be ascertained. It may be that appropriate changes in the phraseology used in the said provisions may have to be made to apply the principles underlying those provisions.
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The Commissioner Of Income-Tax, Bombay Vs. Smt. Kasturbai Walchand Trust, Bombay | use certain immovable properties and to receive the net income arising from trust properties. The right to receive the income arose because of the obligation laid, on the Trustees to pay the net income to her during her lifetime. That was clearly the right as a beneficiary under the trust, and when she executed the indenture dated 21st July, 1955, she surrendered that right in favour of the trust for charitable purposes, so that her right became extinguished.5. It may be mentioned that, at one stage, an attempt was made on behalf of the Commissioner of Income-tax to raise the question about the validity of this deed of surrender, but, when the Commissioner asked the Tribunal to refer a question about the competence of Bai Kasturbai to renounce her beneficial interest under the Trust Settlement, that request was refused by the Tribunal. The Commissioner did not, thereafter, move the High Court to obtain a statement of the case from the Tribunal on that question, so that, in these appeals, it is no longer open to the Commissioner to contend that Bai Kasturbai was not competent to renounce her beneficial interest. Once she renounced her interest, the direction contained in the deed of trust to the Trustees to pay to her the net income of the trust properties ceased, though the Trustees continued to hold the property under the trust. At the same time, the right of Bai Kasturbai to use the immovable properties also ceased to exist. Thereafter, clearly, the entire properties were held by the Trustees for the charitable purposes mentioned in Cl. 8, because that was the only purpose of the trust which remained after this deed of surrender had been executed by Bai Kasturbai. On these facts it is clear that the income, which accrued from the trust properties thereafter, was income which could be applied or allowed to accumulate for application to the charitable purposes mentioned in clause 8 and for no other purpose.6. It appears that there was considerable argument before the High Court and the Tribunal as to whether clause 8 of the deed of trust could come into effect so as to permit the Trustees to apply the income of the trust properties for the charitable purposes mentioned in that clause even before the death of Bai Kasturbai. That clause, in clear words, says that the Trustees shall apply the said net rents, profits and income, etc. in all or any of the charitable purposes mentioned therein "from and after the death of Bai Kasturbai". Relying on this last expression, it was urged that unless Bai Kasturbai died, the Trustees were not permitted to apply the income for the charitable purposes mentioned in clause 8. It seems to us that, in this case, it was quite unnecessary to go into this question for the purpose of deciding whether the income of the trust properties, after the deed of surrender by Bai Kasturbai executed on 21st July, 1955 was exempt from income-tax under S. 4 (3) (i) of the Act. Under that provision, the income from trust properties, held wholly for charitable or religious purposes, is exempt from tax under two circumstances. The first is when that income is actually applied for such religious or charitable purposes, and the second is when it is accumulated for application to such religious or charitable purposes. In this case, as we have indicated above, as soon as Bai Kasturbai executed the deed of surrender, her rights under clause 7 completely ceased and all the income from the trust properties remained with the Trustees to be applied in accordance with other terms of the deed of trust. If it could be held that clause 8 came into operation and permitted the application of that income to the charitable purposes mentioned in it as soon as Bai Kasturbais rights ceased, even though she remained alive, there would be no difficulty in holding that S. 4 (3) (i) would have exempted the income from income-tax. In fact, this view was accepted by all the income-tax authorities. However, even if it be held that clause 8 did not come into operation and the Trustees were incompetent to apply the income of the trust properties for the purposes mentioned in it so long as Bai Kasturbai was alive, the only effect would be that that income would accumulate and that accumulation would continue during the life-time of Bai Kasturbai. On her death, the accumulated income would have to be applied by the Trustees for the charitable purposes mentioned in clause 8. Consequently, the income of the trust properties became exempt from liability to income-tax as soon as the rights of Bai Kasturbai ceased on execution by her of the deed of surrender dated 21st July, 1955, even though it may not be held that clause 8 came into operation from that very date. It is in these circumstances that we consider that, in framing the question, the Tribunal committed an error. The exemption of the income of the trust properties from liability to income-tax was not dependent entirely on coming into operation of clause 8, and we, therefore, think that the question framed should have been broken up into two parts as follows:-"(1) Whether clause 8 of the Trust Settlement made on 25th November, 1946, came into operation immediately following the declaration made by Bai Kasturbai on 21st July, 1955, and(2) Whether, in the circumstances of this case, the income that accrued or arose to the Trustees from the trust properties from 21st July, 1955, onwards was exempt under Section 4 (3) (i) of the Act"7. If the question is so broken up, the first question becomes unnecessary, and the second question has to be answered in favour of the respondent. The answer to the second question is the only one that is material for purposes of determining the liability of the income of the Trust to tax. That question has been answered by the High Court in favour of the respondent. | 0[ds]In the present case, therefore, in clearing with the question referred to the High Court, any assumption that the income of the trust properties was received by Bai Kasturbai will not be correct. The income during her life-time was clearly taxable as income in the hands of the trustees received by them on behalf of Bai Kasturbai.It appears that there was considerable argument before the High Court and the Tribunal as to whether clause 8 of the deed of trust could come into effect so as to permit the Trustees to apply the income of the trust properties for the charitable purposes mentioned in that clause even before the death of Bai Kasturbai. That clause, in clear words, says that the Trustees shall apply the said net rents, profits and income, etc. in all or any of the charitable purposes mentioned therein "from and after the death of Bai Kasturbai". Relying on this last expression, it was urged that unless Bai Kasturbai died, the Trustees were not permitted to apply the income for the charitable purposes mentioned in clause 8. It seems to us that, in this case, it was quite unnecessary to go into this question for the purpose of deciding whether the income of the trust properties, after the deed of surrender by Bai Kasturbai executed on 21st July, 1955 was exempt from income-tax under S. 4 (3) (i) of the Act. Under that provision, the income from trust properties, held wholly for charitable or religious purposes, is exempt from tax under two circumstances. The first is when that income is actually applied for such religious or charitable purposes, and the second is when it is accumulated for application to such religious or charitable purposes. In this case, as we have indicated above, as soon as Bai Kasturbai executed the deed of surrender, her rights under clause 7 completely ceased and all the income from the trust properties remained with the Trustees to be applied in accordance with other terms of the deed of trust. If it could be held that clause 8 came into operation and permitted the application of that income to the charitable purposes mentioned in it as soon as Bai Kasturbais rights ceased, even though she remained alive, there would be no difficulty in holding that S. 4 (3) (i) would have exempted the income from income-tax. In fact, this view was accepted by all the income-tax authorities. However, even if it be held that clause 8 did not come into operation and the Trustees were incompetent to apply the income of the trust properties for the purposes mentioned in it so long as Bai Kasturbai was alive, the only effect would be that that income would accumulate and that accumulation would continue during the life-time of Bai Kasturbai. On her death, the accumulated income would have to be applied by the Trustees for the charitable purposes mentioned in clause 8. Consequently, the income of the trust properties became exempt from liability to income-tax as soon as the rights of Bai Kasturbai ceased on execution by her of the deed of surrender dated 21st July, 1955, even though it may not be held that clause 8 came into operation from that very date. It is in these circumstances that we consider that, in framing the question, the Tribunal committed an error. The exemption of the income of the trust properties from liability to income-tax was not dependent entirely on coming into operation of clause 8, and we, therefore, think that the question framed should have been broken up into two parts asWhether clause 8 of the Trust Settlement made on 25th November, 1946, came into operation immediately following the declaration made by Bai Kasturbai on 21st July, 1955, and(2) Whether, in the circumstances of this case, the income that accrued or arose to the Trustees from the trust properties from 21st July, 1955, onwards was exempt under Section 4 (3) (i) of thethe question is so broken up, the first question becomes unnecessary, and the second question has to be answered in favour of the respondent. The answer to the second question is the only one that is material for purposes of determining the liability of the income of the Trust to tax. That question has been answered by the High Court in favour of thedealing with this question, it has to he kept in view that, even under the deed of trust as originally executed on 25th November. 1946. the income from the trust properties was not the income of Bai Kasturbai. Whenever a valid trust is executed, the property vests in the Trustees, and the income accruing from those properties is the income of the trust and not of the beneficiaries. For purposes oflaw, however, the income under Section 41 (1) of the Act is treated as received by the Trustees on behalf of the beneficiaries, but is to be taxed in the hands of the Trustees in the like manner and to the same amount as it would be leviable upon the person on whose behalf such income is receivable. The liability of the income to tax is, therefore, independent of the income actually being received by the beneficiaries and may be subjected to tax as soon as it is earned by the trust. The exception is that, where the trust properties are held wholly for charitable or religious purposes, in so far as such income is applied or accumulated for application to such religious or charitable purposes, it is exempt fromn the present case, therefore, in clearing with the question referred to the High Court, any assumption that the income of the trust properties was received by Bai Kasturbai will not be correct. The income during herwas clearly taxable as income in the hands of the trustees received by them on behalf of Baideed executed by Bai Kasturbai was clearly valid in view of the provision contained in S.58 of the Indian Trusts Act (No. 2 of 1882), which provides that "the beneficiary, if competent to contract, may transfer his interest, but subject to the law for the time being in force as to the circumstances and extent in and to which he may dispose of such interest". Bai Kasturbai was quite competent to contract so as to transfer her interest under the deed of trust, and by executing the deed dated 21st July, 1955, she surrendered all her rights. The right which had accrued to her under Cl. 7 of the deed of trust was the right to use certain immovable properties and to receive the net income arising from trust properties. The right to receive the income arose because of the obligation laid, on the Trustees to pay the net income to her during her lifetime. That was clearly the right as a beneficiary under the trust, and when she executed the indenture dated 21st July, 1955, she surrendered that right in favour of the trust for charitable purposes, so that her right becamethese facts it is clear that the income, which accrued from the trust properties thereafter, was income which could be applied or allowed to accumulate for application to the charitable purposes mentioned in clause 8 and for no other purpose. | 0 | 2,697 | 1,335 | ### 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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use certain immovable properties and to receive the net income arising from trust properties. The right to receive the income arose because of the obligation laid, on the Trustees to pay the net income to her during her lifetime. That was clearly the right as a beneficiary under the trust, and when she executed the indenture dated 21st July, 1955, she surrendered that right in favour of the trust for charitable purposes, so that her right became extinguished.5. It may be mentioned that, at one stage, an attempt was made on behalf of the Commissioner of Income-tax to raise the question about the validity of this deed of surrender, but, when the Commissioner asked the Tribunal to refer a question about the competence of Bai Kasturbai to renounce her beneficial interest under the Trust Settlement, that request was refused by the Tribunal. The Commissioner did not, thereafter, move the High Court to obtain a statement of the case from the Tribunal on that question, so that, in these appeals, it is no longer open to the Commissioner to contend that Bai Kasturbai was not competent to renounce her beneficial interest. Once she renounced her interest, the direction contained in the deed of trust to the Trustees to pay to her the net income of the trust properties ceased, though the Trustees continued to hold the property under the trust. At the same time, the right of Bai Kasturbai to use the immovable properties also ceased to exist. Thereafter, clearly, the entire properties were held by the Trustees for the charitable purposes mentioned in Cl. 8, because that was the only purpose of the trust which remained after this deed of surrender had been executed by Bai Kasturbai. On these facts it is clear that the income, which accrued from the trust properties thereafter, was income which could be applied or allowed to accumulate for application to the charitable purposes mentioned in clause 8 and for no other purpose.6. It appears that there was considerable argument before the High Court and the Tribunal as to whether clause 8 of the deed of trust could come into effect so as to permit the Trustees to apply the income of the trust properties for the charitable purposes mentioned in that clause even before the death of Bai Kasturbai. That clause, in clear words, says that the Trustees shall apply the said net rents, profits and income, etc. in all or any of the charitable purposes mentioned therein "from and after the death of Bai Kasturbai". Relying on this last expression, it was urged that unless Bai Kasturbai died, the Trustees were not permitted to apply the income for the charitable purposes mentioned in clause 8. It seems to us that, in this case, it was quite unnecessary to go into this question for the purpose of deciding whether the income of the trust properties, after the deed of surrender by Bai Kasturbai executed on 21st July, 1955 was exempt from income-tax under S. 4 (3) (i) of the Act. Under that provision, the income from trust properties, held wholly for charitable or religious purposes, is exempt from tax under two circumstances. The first is when that income is actually applied for such religious or charitable purposes, and the second is when it is accumulated for application to such religious or charitable purposes. In this case, as we have indicated above, as soon as Bai Kasturbai executed the deed of surrender, her rights under clause 7 completely ceased and all the income from the trust properties remained with the Trustees to be applied in accordance with other terms of the deed of trust. If it could be held that clause 8 came into operation and permitted the application of that income to the charitable purposes mentioned in it as soon as Bai Kasturbais rights ceased, even though she remained alive, there would be no difficulty in holding that S. 4 (3) (i) would have exempted the income from income-tax. In fact, this view was accepted by all the income-tax authorities. However, even if it be held that clause 8 did not come into operation and the Trustees were incompetent to apply the income of the trust properties for the purposes mentioned in it so long as Bai Kasturbai was alive, the only effect would be that that income would accumulate and that accumulation would continue during the life-time of Bai Kasturbai. On her death, the accumulated income would have to be applied by the Trustees for the charitable purposes mentioned in clause 8. Consequently, the income of the trust properties became exempt from liability to income-tax as soon as the rights of Bai Kasturbai ceased on execution by her of the deed of surrender dated 21st July, 1955, even though it may not be held that clause 8 came into operation from that very date. It is in these circumstances that we consider that, in framing the question, the Tribunal committed an error. The exemption of the income of the trust properties from liability to income-tax was not dependent entirely on coming into operation of clause 8, and we, therefore, think that the question framed should have been broken up into two parts as follows:-"(1) Whether clause 8 of the Trust Settlement made on 25th November, 1946, came into operation immediately following the declaration made by Bai Kasturbai on 21st July, 1955, and(2) Whether, in the circumstances of this case, the income that accrued or arose to the Trustees from the trust properties from 21st July, 1955, onwards was exempt under Section 4 (3) (i) of the Act"7. If the question is so broken up, the first question becomes unnecessary, and the second question has to be answered in favour of the respondent. The answer to the second question is the only one that is material for purposes of determining the liability of the income of the Trust to tax. That question has been answered by the High Court in favour of the respondent.
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of the trust properties, after the deed of surrender by Bai Kasturbai executed on 21st July, 1955 was exempt from income-tax under S. 4 (3) (i) of the Act. Under that provision, the income from trust properties, held wholly for charitable or religious purposes, is exempt from tax under two circumstances. The first is when that income is actually applied for such religious or charitable purposes, and the second is when it is accumulated for application to such religious or charitable purposes. In this case, as we have indicated above, as soon as Bai Kasturbai executed the deed of surrender, her rights under clause 7 completely ceased and all the income from the trust properties remained with the Trustees to be applied in accordance with other terms of the deed of trust. If it could be held that clause 8 came into operation and permitted the application of that income to the charitable purposes mentioned in it as soon as Bai Kasturbais rights ceased, even though she remained alive, there would be no difficulty in holding that S. 4 (3) (i) would have exempted the income from income-tax. In fact, this view was accepted by all the income-tax authorities. However, even if it be held that clause 8 did not come into operation and the Trustees were incompetent to apply the income of the trust properties for the purposes mentioned in it so long as Bai Kasturbai was alive, the only effect would be that that income would accumulate and that accumulation would continue during the life-time of Bai Kasturbai. On her death, the accumulated income would have to be applied by the Trustees for the charitable purposes mentioned in clause 8. Consequently, the income of the trust properties became exempt from liability to income-tax as soon as the rights of Bai Kasturbai ceased on execution by her of the deed of surrender dated 21st July, 1955, even though it may not be held that clause 8 came into operation from that very date. It is in these circumstances that we consider that, in framing the question, the Tribunal committed an error. The exemption of the income of the trust properties from liability to income-tax was not dependent entirely on coming into operation of clause 8, and we, therefore, think that the question framed should have been broken up into two parts asWhether clause 8 of the Trust Settlement made on 25th November, 1946, came into operation immediately following the declaration made by Bai Kasturbai on 21st July, 1955, and(2) Whether, in the circumstances of this case, the income that accrued or arose to the Trustees from the trust properties from 21st July, 1955, onwards was exempt under Section 4 (3) (i) of thethe question is so broken up, the first question becomes unnecessary, and the second question has to be answered in favour of the respondent. The answer to the second question is the only one that is material for purposes of determining the liability of the income of the Trust to tax. That question has been answered by the High Court in favour of thedealing with this question, it has to he kept in view that, even under the deed of trust as originally executed on 25th November. 1946. the income from the trust properties was not the income of Bai Kasturbai. Whenever a valid trust is executed, the property vests in the Trustees, and the income accruing from those properties is the income of the trust and not of the beneficiaries. For purposes oflaw, however, the income under Section 41 (1) of the Act is treated as received by the Trustees on behalf of the beneficiaries, but is to be taxed in the hands of the Trustees in the like manner and to the same amount as it would be leviable upon the person on whose behalf such income is receivable. The liability of the income to tax is, therefore, independent of the income actually being received by the beneficiaries and may be subjected to tax as soon as it is earned by the trust. The exception is that, where the trust properties are held wholly for charitable or religious purposes, in so far as such income is applied or accumulated for application to such religious or charitable purposes, it is exempt fromn the present case, therefore, in clearing with the question referred to the High Court, any assumption that the income of the trust properties was received by Bai Kasturbai will not be correct. The income during herwas clearly taxable as income in the hands of the trustees received by them on behalf of Baideed executed by Bai Kasturbai was clearly valid in view of the provision contained in S.58 of the Indian Trusts Act (No. 2 of 1882), which provides that "the beneficiary, if competent to contract, may transfer his interest, but subject to the law for the time being in force as to the circumstances and extent in and to which he may dispose of such interest". Bai Kasturbai was quite competent to contract so as to transfer her interest under the deed of trust, and by executing the deed dated 21st July, 1955, she surrendered all her rights. The right which had accrued to her under Cl. 7 of the deed of trust was the right to use certain immovable properties and to receive the net income arising from trust properties. The right to receive the income arose because of the obligation laid, on the Trustees to pay the net income to her during her lifetime. That was clearly the right as a beneficiary under the trust, and when she executed the indenture dated 21st July, 1955, she surrendered that right in favour of the trust for charitable purposes, so that her right becamethese facts it is clear that the income, which accrued from the trust properties thereafter, was income which could be applied or allowed to accumulate for application to the charitable purposes mentioned in clause 8 and for no other purpose.
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M/s. Indian Charge Chrome Ltd. & Another Vs. Union Of India & Others | directions of this Court issued ultimately in Ferro Alloys Corporation Ltd. & Anr. Vs. Union of India & Ors. (supra). The State Government had to proceed on the basis of the directions contained therein and make allotments as recommended by the Dash Committee or the successor Chahar Committee. Of course, the State Government might have been in a position to forward the application of Nava Bharat also to the said Committee for consideration and recommendation and might have thereafter acted on the basis of recommendations of the Chahar Committee. But that was not done and the decision to lease to Nava Bharat was straight away taken. We see some force in the submission on behalf of I.C.C.L and GMR that no proper reasons are given for overriding the preferences of others especially in the light of the directions of this Court while deciding to grant a lease in favour of Nava Bharat. Notwithstanding the valiant effort in that behalf made by learned Senior Counsel for Nava Bharat to salvage the grant made to it, we are of the view that on the facts and in the circumstances of the case, the decision to grant a lease to Nava Bharat out of turn was not justified, legal or proper. 30. When the State Government made the recommendation for grant of a lease to Nava Bharat, the infirmities in that recommendation were pointed out by the Central Government, in its letter dated 27.6.2001. The violation of Rule 59 was also pointed out. Instead of placing the letter before the Chief Minister or the Cabinet and obtaining directions thereon, the Steel and Mines Department on its own chose to send a letter dated 30.6.2001 purporting to conform to the requirements. When the matter reached the Chief Minister and the Cabinet, the decision taken was to withdraw the earlier request for grant of approval of lease to Nava Bharat. On the materials, it is clear that the letter dated 30.6.2001 sent by the Secretary of the Steel and Mines Department was not one consistent with the Rules of Business framed under Article 166 of the Constitution of India. The letter also lost its efficacy in view of the decision taken by the Cabinet to withdraw the recommendation itself. The position that emerges is that there was no valid recommendation by the State Government for the grant of a lease to Nava Bharat and there was hence no valid approval of the Central Government. Non-compliance with Rule 59 of the Rules also vitiated the proposal to lease to Nava Bharat 31. In view of our conclusion that the State Government was entitled to seek the approval of the Central Government in respect of the balance extent of 436.295 hectares, in which was included the proposed Nava Bharat grant, for exploitation by OMC and since, we are satisfied that the grant to Nava Bharat cannot be sustained, the proposed grant or grant to it has to be set aside. We do so. If it is a question of reconsideration of the applications of various entities for grant of leases in respect of 436.295 hectares, it would be a case where the claim of Nava Bharat would also have to be considered along with the claim of others in the light of the directions earlier issued by this Court. This contingency may arise only if the Central Government does not grant approval to the request of the State Government under Section 17A(2) of the Act. To that extent, we allow the appeals of I.C.C.L. 32. Taking note of the circumstances, it is for the State Government to make a fresh request to the Central Government in terms of Section 17A(2) of the Act setting out all the relevant details for consideration of the Central Government. Thereupon the Central Government will have to take a decision in terms of Section 17A(2) of the Act and in the context of Section 17A of the Act and all relevant attendant circumstances. We make it clear that the prior directions of this Court or that of the High Court cannot and do not stand in the way of the Central Government in applying its mind to the request made by the State Government under Section 17A(2) of the Act and in taking an independent decision thereon. All that is necessary at the moment is to hold that the recommendation of the State Government cannot be rejected by the Central Government on the ground that it has no freedom or right to take a decision on the request, in view of the prior orders of this Court or on the ground that adequate details are not forthcoming. In the latter contingency, it is for the Central Government to seek such further details from the State Government as it deems fit and thereafter to come to a decision. 33. The decisions of the High Court of Orissa are thus set aside. The appeals are allowed in the manner indicated above. The State Government is directed to make a proper request in terms of Section 17A(2) of the Act and the Central Government is directed to take a decision thereon bearing in mind all the aspects as indicated hereinbefore. What is to happen thereafter will depend upon the decision the Central Government takes and the consequences that flow therefrom. Those are aspects that will have to be tackled at the appropriate time, if the need or occasion for it arises. 34. Since, this matter has been pending for years and what is involved is exploitation of a precious mineral, we direct the State Government and the Central Government to comply with the directions we have made expeditiously. The State Government should send its request within a period of four months from today with all relevant details and the Central Government should take its decision on the recommendation within a period of four months from the date of receipt of the recommendation, if necessary, after calling for any further detail that it may consider relevant. | 1[ds]19. We also do not find any substance in the contention that the decision to grant a lease of the remaining extent to OMC is irrational in the context of the performance of OMC and the other attendant circumstances of the case and in the context of the National Mining Policy. The argument that on principle the necessity of industries established in Orissa for captive mining had also been approved and the said aspect could not be lost sight of while taking such a decision cannot be the controlling factor. What we find is that the area available for chromite ore mining has already been divided among TISCO, the four companies and AIKITH and what is left is the extent of 436.295 hectares. It is clear that a number of companies have applied for leases of varying extents from that remaining extent and if the State Government took a decision that further fragmentation of the area would not be in the interests of scientific mining and to ensure even distribution among the consumers in the country, it is necessary to leave the mining to a corporation controlled by the Government, it is difficult to say that the decision is irrational. In a sense, it is a policy decision and though in a given case this Court could interfere with a policy decision of the Government, we cannot say that the present case is one where the decision is so irrational, unreasonable or patently illegal as to justify interference by this Court. All industries outside the State of Orissa also require the precious ore and it is the duty of the Government to ensure a just distribution at a fair price. In the circumstances, it is difficult to say that the decision taken to retain the area in a compact bloc for mining by a Government controlled Corporation is irrational. We therefore reject this contentiont is seen that the Central Government took the stand that as the matter was pending in this Court, it would not be appropriate for it to take a decision. The application or request of the State Government is seen to have been returned. Of course, the Central Government is also entitled to seek further clarifications or additional facts so as to make up its mind on the question of approval. As matters stand at this stage, the Central Government has refused to take a decision one way or the other on the request of the State Government. It is therefore not possible to proceed on the basis that the Central Government has already rejected the request of the State Government for reserving the area for exploitation by OMC26. In our view, the High Court was not right in holding that what had transpired thus far, or the directions of this Court earlier made, precluded the State Government from exercising the power and seeking approval in terms of Section 17A(2) of the Act. As we have held, the State Government could exercise that power until a grant is actually made since it is an overriding power. The taking up of a particular stand earlier, cannot also preclude the exercise of that power. Whether it has laid itself open to claims for damages by its prior actions is a different question and that cannot control the exercise of the power under Section 17A of the Act27. Now, we come to the lease proposed to be granted to Nava Bharat. In view of our upholding the decision of the State Government subject to approval by the Central Government, the lease proposed has to be found to be still born; or that the decision no more survives. But it is necessary to consider the contentions put forward, since the question would become relevant if for any reason, the Central Government chooses not to approve the request or decision of the State Government to lease the balance extent of 436.295 hectares to OMC28. As regards the allotment to Nava Bharat, we see considerable force in the submission on behalf of the I.C.C.L. that the decision to grant lease to Nava Bharat in preference to the other applicants who were before the Government was incorrect and calls for interference. On the materials, it is not established that the State Government exercised its power undern (5) of Section 11 of the Act. Nava Bharat was a subsequent entrant into the fray and had claimed the grant even while the claims of various applicants were being considered by Dash Committee. Even without sending the request of Nava Bharat to Dash Committee for consideration and recommendation, the State Government proceeded to recommend the grant of a lease to Nava Bharat from out of the extent available with it. This was a case to which the rule of preference under Section 11 of the Act as modified by the earlier orders of this Court applied and there was a preference available to those who had applied for leases earlier. Of course, the position had been explained in the first decision in Indian Metals & Ferro Alloys Ltd. Vs. Union of India & Ors. (supra). What is the reason that led to overriding the claims of others is not disclosed. On the materials, it cannot be said that the conditions ofn (5) of Section 11 are fulfilled in this case. No special reasons are recorded justifying such an out of turn grant29. If it was a case of consideration of the claims under Section 11 of the Act, we feel that the State Government was bound by the directions of this Court issued ultimately in Ferro Alloys Corporation Ltd. & Anr. Vs. Union of India & Ors. (supra). The State Government had to proceed on the basis of the directions contained therein and make allotments as recommended by the Dash Committee or the successor Chahar Committee. Of course, the State Government might have been in a position to forward the application of Nava Bharat also to the said Committee for consideration and recommendation and might have thereafter acted on the basis of recommendations of the Chahar Committee. But that was not done and the decision to lease to Nava Bharat was straight away taken. We see some force in the submission on behalf of I.C.C.L and GMR that no proper reasons are given for overriding the preferences of others especially in the light of the directions of this Court while deciding to grant a lease in favour of Nava Bharat. Notwithstanding the valiant effort in that behalf made by learned Senior Counsel for Nava Bharat to salvage the grant made to it, we are of the view that on the facts and in the circumstances of the case, the decision to grant a lease to Nava Bharat out of turn was not justified, legal or proper30. When the State Government made the recommendation for grant of a lease to Nava Bharat, the infirmities in that recommendation were pointed out by the Central Government, in its letter dated 27.6.2001. The violation of Rule 59 was also pointed out. Instead of placing the letter before the Chief Minister or the Cabinet and obtaining directions thereon, the Steel and Mines Department on its own chose to send a letter dated 30.6.2001 purporting to conform to the requirements. When the matter reached the Chief Minister and the Cabinet, the decision taken was to withdraw the earlier request for grant of approval of lease to Nava Bharat. On the materials, it is clear that the letter dated 30.6.2001 sent by the Secretary of the Steel and Mines Department was not one consistent with the Rules of Business framed under Article 166 of the Constitution of India. The letter also lost its efficacy in view of the decision taken by the Cabinet to withdraw the recommendation itself. The position that emerges is that there was no valid recommendation by the State Government for the grant of a lease to Nava Bharat and there was hence no valid approval of the Central Government.e with Rule 59 of the Rules also vitiated the proposal to lease to Nava Bharat31. In view of our conclusion that the State Government was entitled to seek the approval of the Central Government in respect of the balance extent of 436.295 hectares, in which was included the proposed Nava Bharat grant, for exploitation by OMC and since, we are satisfied that the grant to Nava Bharat cannot be sustained, the proposed grant or grant to it has to be set aside. We do so. If it is a question of reconsideration of the applications of various entities for grant of leases in respect of 436.295 hectares, it would be a case where the claim of Nava Bharat would also have to be considered along with the claim of others in the light of the directions earlier issued by this Court. This contingency may arise only if the Central Government does not grant approval to the request of the State Government under Section 17A(2) of the Act. To that extent, we allow the appeals of I.C.C.L32. Taking note of the circumstances, it is for the State Government to make a fresh request to the Central Government in terms of Section 17A(2) of the Act setting out all the relevant details for consideration of the Central Government. Thereupon the Central Government will have to take a decision in terms of Section 17A(2) of the Act and in the context of Section 17A of the Act and all relevant attendant circumstances. We make it clear that the prior directions of this Court or that of the High Court cannot and do not stand in the way of the Central Government in applying its mind to the request made by the State Government under Section 17A(2) of the Act and in taking an independent decision thereon. All that is necessary at the moment is to hold that the recommendation of the State Government cannot be rejected by the Central Government on the ground that it has no freedom or right to take a decision on the request, in view of the prior orders of this Court or on the ground that adequate details are not forthcoming. In the latter contingency, it is for the Central Government to seek such further details from the State Government as it deems fit and thereafter to come to a decision33. The decisions of the High Court of Orissa are thus set aside. The appeals are allowed in the manner indicated above. The State Government is directed to make a proper request in terms of Section 17A(2) of the Act and the Central Government is directed to take a decision thereon bearing in mind all the aspects as indicated hereinbefore. What is to happen thereafter will depend upon the decision the Central Government takes and the consequences that flow therefrom. Those are aspects that will have to be tackled at the appropriate time, if the need or occasion for it arises34. Since, this matter has been pending for years and what is involved is exploitation of a precious mineral, we direct the State Government and the Central Government to comply with the directions we have made expeditiously. The State Government should send its request within a period of four months from today with all relevant details and the Central Government should take its decision on the recommendation within a period of four months from the date of receipt of the recommendation, if necessary, after calling for any further detail that it may consider relevant19. We also do not find any substance in the contention that the decision to grant a lease of the remaining extent to OMC is irrational in the context of the performance of OMC and the other attendant circumstances of the case and in the context of the National Mining Policy. The argument that on principle the necessity of industries established in Orissa for captive mining had also been approved and the said aspect could not be lost sight of while taking such a decision cannot be the controlling factor. What we find is that the area available for chromite ore mining has already been divided among TISCO, the four companies and AIKITH and what is left is the extent of 436.295 hectares. It is clear that a number of companies have applied for leases of varying extents from that remaining extent and if the State Government took a decision that further fragmentation of the area would not be in the interests of scientific mining and to ensure even distribution among the consumers in the country, it is necessary to leave the mining to a corporation controlled by the Government, it is difficult to say that the decision is irrational. In a sense, it is a policy decision and though in a given case this Court could interfere with a policy decision of the Government, we cannot say that the present case is one where the decision is so irrational, unreasonable or patently illegal as to justify interference by this Court. All industries outside the State of Orissa also require the precious ore and it is the duty of the Government to ensure a just distribution at a fair price. In the circumstances, it is difficult to say that the decision taken to retain the area in a compact bloc for mining by a Government controlled Corporation is irrational. We therefore reject this contention20. The contention on behalf of the Companies, that the Central Government must be taken to have rejected the approval sought by the State Government under Section 17A(2) of the Act, cannot be accepted.seen that the Central Government took the stand that as the matter was pending in this Court, it would not be appropriate for it to take a decision. The application or request of the State Government is seen to have been returned. Of course, the Central Government is also entitled to seek further clarifications or additional facts so as to make up its mind on the question of approval. As matters stand at this stage, the Central Government has refused to take a decision one way or the other on the request of the State Government. It is therefore not possible to proceed on the basis that the Central Government has already rejected the request of the State Government for reserving the area for exploitation by OMC25. We find some merit in the contention of learned counsel for the State and OMC that the fact that the ore is required by many industries in the country other than the applicants for leases for captive mining and if the whole area is divided and given for private exploitation, there may be difficulty in ensuring equitable distribution of the ore was a relevant consideration for the State Government in making the recommendation under Section 17A (2) of the Act. We cannot certainly say that this aspect is not a relevant circumstance. Anyway, as we have indicated, it is not for us to pronounce on it at this stage and that would also be one of the aspects to be considered by the Central Government when it considers the request of the State Government for approval under Section 17A(2) of the Act26. In our view, the High Court was not right in holding that what had transpired thus far, or the directions of this Court earlier made, precluded the State Government from exercising the power and seeking approval in terms of Section 17A(2) of the Act. As we have held, the State Government could exercise that power until a grant is actually made since it is an overriding power. The taking up of a particular stand earlier, cannot also preclude the exercise of that power. Whether it has laid itself open to claims for damages by its prior actions is a different question and that cannot control the exercise of the power under Section 17A of the Act27. Now, we come to the lease proposed to be granted to Nava Bharat. In view of our upholding the decision of the State Government subject to approval by the Central Government, the lease proposed has to be found to be still born; or that the decision no more survives. But it is necessary to consider the contentions put forward, since the question would become relevant if for any reason, the Central Government chooses not to approve the request or decision of the State Government to lease the balance extent of 436.295 hectares to OMC28. As regards the allotment to Nava Bharat, we see considerable force in the submission on behalf of the I.C.C.L. that the decision to grant lease to Nava Bharat in preference to the other applicants who were before the Government was incorrect and calls for interference. On the materials, it is not established that the State Government exercised its power undern (5) of Section 11 of the Act. Nava Bharat was a subsequent entrant into the fray and had claimed the grant even while the claims of various applicants were being considered by Dash Committee. Even without sending the request of Nava Bharat to Dash Committee for consideration and recommendation, the State Government proceeded to recommend the grant of a lease to Nava Bharat from out of the extent available with it. This was a case to which the rule of preference under Section 11 of the Act as modified by the earlier orders of this Court applied and there was a preference available to those who had applied for leases earlier. Of course, the position had been explained in the first decision in Indian Metals & Ferro Alloys Ltd. Vs. Union of India & Ors. (supra). What is the reason that led to overriding the claims of others is not disclosed. On the materials, it cannot be said that the conditions ofn (5) of Section 11 are fulfilled in this case. No special reasons are recorded justifying such an out of turn grant29. If it was a case of consideration of the claims under Section 11 of the Act, we feel that the State Government was bound by the directions of this Court issued ultimately in Ferro Alloys Corporation Ltd. & Anr. Vs. Union of India & Ors. (supra). The State Government had to proceed on the basis of the directions contained therein and make allotments as recommended by the Dash Committee or the successor Chahar Committee. Of course, the State Government might have been in a position to forward the application of Nava Bharat also to the said Committee for consideration and recommendation and might have thereafter acted on the basis of recommendations of the Chahar Committee. But that was not done and the decision to lease to Nava Bharat was straight away taken. We see some force in the submission on behalf of I.C.C.L and GMR that no proper reasons are given for overriding the preferences of others especially in the light of the directions of this Court while deciding to grant a lease in favour of Nava Bharat. Notwithstanding the valiant effort in that behalf made by learned Senior Counsel for Nava Bharat to salvage the grant made to it, we are of the view that on the facts and in the circumstances of the case, the decision to grant a lease to Nava Bharat out of turn was not justified, legal or proper30. When the State Government made the recommendation for grant of a lease to Nava Bharat, the infirmities in that recommendation were pointed out by the Central Government, in its letter dated 27.6.2001. The violation of Rule 59 was also pointed out. Instead of placing the letter before the Chief Minister or the Cabinet and obtaining directions thereon, the Steel and Mines Department on its own chose to send a letter dated 30.6.2001 purporting to conform to the requirements. When the matter reached the Chief Minister and the Cabinet, the decision taken was to withdraw the earlier request for grant of approval of lease to Nava Bharat. On the materials, it is clear that the letter dated 30.6.2001 sent by the Secretary of the Steel and Mines Department was not one consistent with the Rules of Business framed under Article 166 of the Constitution of India. The letter also lost its efficacy in view of the decision taken by the Cabinet to withdraw the recommendation itself. The position that emerges is that there was no valid recommendation by the State Government for the grant of a lease to Nava Bharat and there was hence no valid approval of the Central Government.e with Rule 59 of the Rules also vitiated the proposal to lease to Nava Bharat31. In view of our conclusion that the State Government was entitled to seek the approval of the Central Government in respect of the balance extent of 436.295 hectares, in which was included the proposed Nava Bharat grant, for exploitation by OMC and since, we are satisfied that the grant to Nava Bharat cannot be sustained, the proposed grant or grant to it has to be set aside. We do so. If it is a question of reconsideration of the applications of various entities for grant of leases in respect of 436.295 hectares, it would be a case where the claim of Nava Bharat would also have to be considered along with the claim of others in the light of the directions earlier issued by this Court. This contingency may arise only if the Central Government does not grant approval to the request of the State Government under Section 17A(2) of the Act. To that extent, we allow the appeals of I.C.C.L32. Taking note of the circumstances, it is for the State Government to make a fresh request to the Central Government in terms of Section 17A(2) of the Act setting out all the relevant details for consideration of the Central Government. Thereupon the Central Government will have to take a decision in terms of Section 17A(2) of the Act and in the context of Section 17A of the Act and all relevant attendant circumstances. We make it clear that the prior directions of this Court or that of the High Court cannot and do not stand in the way of the Central Government in applying its mind to the request made by the State Government under Section 17A(2) of the Act and in taking an independent decision thereon. All that is necessary at the moment is to hold that the recommendation of the State Government cannot be rejected by the Central Government on the ground that it has no freedom or right to take a decision on the request, in view of the prior orders of this Court or on the ground that adequate details are not forthcoming. In the latter contingency, it is for the Central Government to seek such further details from the State Government as it deems fit and thereafter to come to a decision33. The decisions of the High Court of Orissa are thus set aside. The appeals are allowed in the manner indicated above. The State Government is directed to make a proper request in terms of Section 17A(2) of the Act and the Central Government is directed to take a decision thereon bearing in mind all the aspects as indicated hereinbefore. What is to happen thereafter will depend upon the decision the Central Government takes and the consequences that flow therefrom. Those are aspects that will have to be tackled at the appropriate time, if the need or occasion for it arises34. Since, this matter has been pending for years and what is involved is exploitation of a precious mineral, we direct the State Government and the Central Government to comply with the directions we have made expeditiously. The State Government should send its request within a period of four months from today with all relevant details and the Central Government should take its decision on the recommendation within a period of four months from the date of receipt of the recommendation, if necessary, after calling for any further detail that it may consider | 1 | 9,344 | 4,316 | ### 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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directions of this Court issued ultimately in Ferro Alloys Corporation Ltd. & Anr. Vs. Union of India & Ors. (supra). The State Government had to proceed on the basis of the directions contained therein and make allotments as recommended by the Dash Committee or the successor Chahar Committee. Of course, the State Government might have been in a position to forward the application of Nava Bharat also to the said Committee for consideration and recommendation and might have thereafter acted on the basis of recommendations of the Chahar Committee. But that was not done and the decision to lease to Nava Bharat was straight away taken. We see some force in the submission on behalf of I.C.C.L and GMR that no proper reasons are given for overriding the preferences of others especially in the light of the directions of this Court while deciding to grant a lease in favour of Nava Bharat. Notwithstanding the valiant effort in that behalf made by learned Senior Counsel for Nava Bharat to salvage the grant made to it, we are of the view that on the facts and in the circumstances of the case, the decision to grant a lease to Nava Bharat out of turn was not justified, legal or proper. 30. When the State Government made the recommendation for grant of a lease to Nava Bharat, the infirmities in that recommendation were pointed out by the Central Government, in its letter dated 27.6.2001. The violation of Rule 59 was also pointed out. Instead of placing the letter before the Chief Minister or the Cabinet and obtaining directions thereon, the Steel and Mines Department on its own chose to send a letter dated 30.6.2001 purporting to conform to the requirements. When the matter reached the Chief Minister and the Cabinet, the decision taken was to withdraw the earlier request for grant of approval of lease to Nava Bharat. On the materials, it is clear that the letter dated 30.6.2001 sent by the Secretary of the Steel and Mines Department was not one consistent with the Rules of Business framed under Article 166 of the Constitution of India. The letter also lost its efficacy in view of the decision taken by the Cabinet to withdraw the recommendation itself. The position that emerges is that there was no valid recommendation by the State Government for the grant of a lease to Nava Bharat and there was hence no valid approval of the Central Government. Non-compliance with Rule 59 of the Rules also vitiated the proposal to lease to Nava Bharat 31. In view of our conclusion that the State Government was entitled to seek the approval of the Central Government in respect of the balance extent of 436.295 hectares, in which was included the proposed Nava Bharat grant, for exploitation by OMC and since, we are satisfied that the grant to Nava Bharat cannot be sustained, the proposed grant or grant to it has to be set aside. We do so. If it is a question of reconsideration of the applications of various entities for grant of leases in respect of 436.295 hectares, it would be a case where the claim of Nava Bharat would also have to be considered along with the claim of others in the light of the directions earlier issued by this Court. This contingency may arise only if the Central Government does not grant approval to the request of the State Government under Section 17A(2) of the Act. To that extent, we allow the appeals of I.C.C.L. 32. Taking note of the circumstances, it is for the State Government to make a fresh request to the Central Government in terms of Section 17A(2) of the Act setting out all the relevant details for consideration of the Central Government. Thereupon the Central Government will have to take a decision in terms of Section 17A(2) of the Act and in the context of Section 17A of the Act and all relevant attendant circumstances. We make it clear that the prior directions of this Court or that of the High Court cannot and do not stand in the way of the Central Government in applying its mind to the request made by the State Government under Section 17A(2) of the Act and in taking an independent decision thereon. All that is necessary at the moment is to hold that the recommendation of the State Government cannot be rejected by the Central Government on the ground that it has no freedom or right to take a decision on the request, in view of the prior orders of this Court or on the ground that adequate details are not forthcoming. In the latter contingency, it is for the Central Government to seek such further details from the State Government as it deems fit and thereafter to come to a decision. 33. The decisions of the High Court of Orissa are thus set aside. The appeals are allowed in the manner indicated above. The State Government is directed to make a proper request in terms of Section 17A(2) of the Act and the Central Government is directed to take a decision thereon bearing in mind all the aspects as indicated hereinbefore. What is to happen thereafter will depend upon the decision the Central Government takes and the consequences that flow therefrom. Those are aspects that will have to be tackled at the appropriate time, if the need or occasion for it arises. 34. Since, this matter has been pending for years and what is involved is exploitation of a precious mineral, we direct the State Government and the Central Government to comply with the directions we have made expeditiously. The State Government should send its request within a period of four months from today with all relevant details and the Central Government should take its decision on the recommendation within a period of four months from the date of receipt of the recommendation, if necessary, after calling for any further detail that it may consider relevant.
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1
### Explanation:
the State Government was bound by the directions of this Court issued ultimately in Ferro Alloys Corporation Ltd. & Anr. Vs. Union of India & Ors. (supra). The State Government had to proceed on the basis of the directions contained therein and make allotments as recommended by the Dash Committee or the successor Chahar Committee. Of course, the State Government might have been in a position to forward the application of Nava Bharat also to the said Committee for consideration and recommendation and might have thereafter acted on the basis of recommendations of the Chahar Committee. But that was not done and the decision to lease to Nava Bharat was straight away taken. We see some force in the submission on behalf of I.C.C.L and GMR that no proper reasons are given for overriding the preferences of others especially in the light of the directions of this Court while deciding to grant a lease in favour of Nava Bharat. Notwithstanding the valiant effort in that behalf made by learned Senior Counsel for Nava Bharat to salvage the grant made to it, we are of the view that on the facts and in the circumstances of the case, the decision to grant a lease to Nava Bharat out of turn was not justified, legal or proper30. When the State Government made the recommendation for grant of a lease to Nava Bharat, the infirmities in that recommendation were pointed out by the Central Government, in its letter dated 27.6.2001. The violation of Rule 59 was also pointed out. Instead of placing the letter before the Chief Minister or the Cabinet and obtaining directions thereon, the Steel and Mines Department on its own chose to send a letter dated 30.6.2001 purporting to conform to the requirements. When the matter reached the Chief Minister and the Cabinet, the decision taken was to withdraw the earlier request for grant of approval of lease to Nava Bharat. On the materials, it is clear that the letter dated 30.6.2001 sent by the Secretary of the Steel and Mines Department was not one consistent with the Rules of Business framed under Article 166 of the Constitution of India. The letter also lost its efficacy in view of the decision taken by the Cabinet to withdraw the recommendation itself. The position that emerges is that there was no valid recommendation by the State Government for the grant of a lease to Nava Bharat and there was hence no valid approval of the Central Government.e with Rule 59 of the Rules also vitiated the proposal to lease to Nava Bharat31. In view of our conclusion that the State Government was entitled to seek the approval of the Central Government in respect of the balance extent of 436.295 hectares, in which was included the proposed Nava Bharat grant, for exploitation by OMC and since, we are satisfied that the grant to Nava Bharat cannot be sustained, the proposed grant or grant to it has to be set aside. We do so. If it is a question of reconsideration of the applications of various entities for grant of leases in respect of 436.295 hectares, it would be a case where the claim of Nava Bharat would also have to be considered along with the claim of others in the light of the directions earlier issued by this Court. This contingency may arise only if the Central Government does not grant approval to the request of the State Government under Section 17A(2) of the Act. To that extent, we allow the appeals of I.C.C.L32. Taking note of the circumstances, it is for the State Government to make a fresh request to the Central Government in terms of Section 17A(2) of the Act setting out all the relevant details for consideration of the Central Government. Thereupon the Central Government will have to take a decision in terms of Section 17A(2) of the Act and in the context of Section 17A of the Act and all relevant attendant circumstances. We make it clear that the prior directions of this Court or that of the High Court cannot and do not stand in the way of the Central Government in applying its mind to the request made by the State Government under Section 17A(2) of the Act and in taking an independent decision thereon. All that is necessary at the moment is to hold that the recommendation of the State Government cannot be rejected by the Central Government on the ground that it has no freedom or right to take a decision on the request, in view of the prior orders of this Court or on the ground that adequate details are not forthcoming. In the latter contingency, it is for the Central Government to seek such further details from the State Government as it deems fit and thereafter to come to a decision33. The decisions of the High Court of Orissa are thus set aside. The appeals are allowed in the manner indicated above. The State Government is directed to make a proper request in terms of Section 17A(2) of the Act and the Central Government is directed to take a decision thereon bearing in mind all the aspects as indicated hereinbefore. What is to happen thereafter will depend upon the decision the Central Government takes and the consequences that flow therefrom. Those are aspects that will have to be tackled at the appropriate time, if the need or occasion for it arises34. Since, this matter has been pending for years and what is involved is exploitation of a precious mineral, we direct the State Government and the Central Government to comply with the directions we have made expeditiously. The State Government should send its request within a period of four months from today with all relevant details and the Central Government should take its decision on the recommendation within a period of four months from the date of receipt of the recommendation, if necessary, after calling for any further detail that it may consider
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State of Punjab Vs. Labour Court, Jullundur and Others | widest terms. Except for superannuation, any termination of service would amount to "retirement" for the purposes of the Act. Retrenchment is a termination of service. It is immaterial that the termination is occasioned by the need to discharge surplus labour. That retrenchment implies the discharge of surplus labour was explained in Bersi Light Railway Company Labour v. K. M. Joglekar. Nonetheless, it amounts to termination of service. We are of opinion that the retrenchment of the employee respondents falls within the scope of sect ion 4(1) of the Payment of Gratuity Act, and the employee respondents are therefore entitled to gratuity under that provision.6. The third contention raised by the appellant is that the employee respondents were not entitled to apply under section 33-C(2) of the Industrial Disputes Act, 1947 for payment of the gratuity, and should have, if at all, applied under the provisions of the Payment of Gratuity Act. It is urged that the Payment of Gratuity Act is a self-contained code incorporating all the essential provisions relating to payment of gratuity which can be claimed under that Act, and its provisions impliedly exclude recourse to any other statute for that purpose. The contention has force and must be accepted. A careful perusal of the relevant provisions of the Payment of Gratuity Act shows that Parliament has enacted a closely knit scheme providing for payment of gratuity. A controlling authority is appointed by the appropriate Government under section 3. and Parliament has made him responsible for the administration of the entire Act. In what event gratuity will become payable and how it will be quantified are detailed in section 4. Section 7(1) entitled a person eligible for payment of gratuity to apply in that behalf to the employer. Under section 7(2), the employer is obliged, as soon as gratuity becomes payable and whether an application has or has not been made for payment of gratuity, to determine th e amount of gratuity and inform the person to whom the gratuity is payable specifying the amount of gratuity so determined. He is obliged, by virtue of the same provision, to inform the controlling authority also, thus ensuring that the controlling authority is seized at all times of information in regard to gratuity as it becomes payable. If a dispute is raised in regard to the amount of gratuity payable or as to the admissibility of any claim to gratuity, or as to the person entitled to receive the gratuity, section 7(4) (a) requires the employer to deposit with the controlling authority such amount as he admits to be payable by him as gratuity. The controlling authority is empowered. under section 7(4)(b), to enter upon an adjudication of the dispute, and after due inquiry, and after giving the parties to the dispute a reasonable opportunity of being heard, he is required to determine the amount of gratuity payable. In this regard, the controlling authority ha s all the powers as are vested in a court while trying a suit under the Code of Civil Procedure, 1908 in respect of obtaining evidentiary material and the recording of evidence. The amount deposited by the employer with the controlling authority a s the admitted amount of gratuity will be paid over by the controlling authority to the employee or his nominee or heir. Section 7(7) provides an appeal against the order of the controlling authority under section 7(4) to the appropriate Government or such other authority as may be specified by the appropriate Government in that behalf. The appropriate Government or the appellate authority is empowered under section 7(8), after giving the parties to the appeal a reasonable opportunity of being heard, to confirm, modify or reverse the decision of the controlling authority. Where the amount of gratuity payable is not paid by the employer with in the prescribed time, the controlling authority is required by section 8, on application made to it by the aggrieved person, to issue a certificate for that amount to the Collector. The Collector, thereupon, is empowered to recover the amount of gratuity, together with compound interest thereon at the rate of nine per cent per annum from the date of expiry of the prescribed time, as arrears of land revenue, and pay the same to the person entitled thereto.It is apparent that the Payment of Gratuity Act enacts a complete code containing detailed provisions covering all the essential features of a scheme for payment of gratuity. It creates the right to payment of gratuity, indicates when the right will accrue, and lays down the principles for quantification of the gratuity. It provides further for recovery of the amount, and contains an especial provision that compound interest at nine per cent per annum will be payable on delayed payment. For the enforcement of its provisions, the Act provides for the appointment of a controlling authority, who is entrusted with the task of administering the Act. The fulfilment of the rights and obligations of the parties are made his responsibility, and he has been invested with an amplitude of power for the full discharge of that responsibility. Any error committed by him can be corrected in appeal by the appropriate Government or an appellate authority particularly constituted under the Act.7. Upon all these considerations, the conclusion is inescapable that Parliament intended that proceedings for payment of gratuity due under the Payment of Gratuity Act must be taken under that Act and not under any other. That being so, it must be held that the applications filed by the employee respondents under section 33-C(2) o f the Industrial Disputes Act did not lie, and the Labour Court had no jurisdiction to entertain and dispose of them. On that ground, this appeal must succeed.8. In the circumstances, it is not necessary to notice the further submission on behalf of the appellant that where a serious dispute exists in regard to the basis of a claim for payment of gratuity, no proceedings will lie under section 33-C(2) of the Industrial Disputes Act.9. | 1[ds]Section 1(3) (b) speaks of "any law for the time being in force in r elation to shops and establishments in a State." There can be no dispute that the Payment of Wages Act is in force in the State ofis difficult to accept that contention because there is no warrant for so limiting the meaning of the expression "law " in section 1(3) (b). The expression is comprehensive in its scope, and can mean a law in relation to shops as well as, separately, a law in relation to establishments, or a law in relation to shops and commercial establishments and a law in relation t o noncommercial establishments. Had section 1(3)(b) intended to refer to a single enactment, surely the appellant would have been able to point to such a statute, that is to say, a statute relating to shops and establishments, both commercial and non-commercial. The Punjab Shops &Commercial Establishments Act does not relate to all kinds of establishments. Besides shops, it relates to commercial establishments alone. Had the intention of Parliament been, when enacting section 1(3)(b), to refer to a law relating to commercial establishments, it would not have left the expression "establishments" unqualified. We have carefully examined the various provisions ofthe Payment of Gratuity Act,and we are unable to discern any reason for giving the limited meaning to section 1(3) (b) urged before us on behalf of the1(3) (b) applies to every establishment within the meaning of any law for the time being in force in relation to establishment s in a State. Such an establishment would include an industrial establishment within the meaning of section 2(ii) (g) of the Payment of Wages Act. Accordingly, we are of opinion that the Payment of Gratuity Act applies to an establishment in which any work relating to construction, development or maintenance of buildings, roads, bridges or canals, or relating to operations connected with navigation, irrigation or the supply of water, or relating to the generation , transmission and distribution of electricity or any other form of power is being carried on. The Hydel Upper Bari Doab Construction Project is such an establishment, and the Payment of Gratuity Act applies toregard to the definition of "superannuation" in section 2(r) of the Act, it is clear that the case is not one under clause (a). Nor, admittedly, is it a case which falls under clause (c). As regards clause (b), it is not a case of resignation. The only question is whether it can be regarded under clause (b) as a case of retirement. The expression "retirement" has been defined by section 2(q) to mean "termination of the service of an employee otherwise than on superannuation." The definition is framed in the widest terms. Except for superannuation, any termination of service would amount to "retirement" for the purposes of the Act. Retrenchment is a termination of service. It is immaterial that the termination is occasioned by the need to discharge surplus labour.We are of opinion that the retrenchment of the employee respondents falls within the scope of sect ion 4(1) ofthe Payment of Gratuity Act,and the employee respondents are therefore entitled to gratuity under thatcareful perusal of the relevant provisions of the Payment of Gratuity Act shows that Parliament has enacted a closely knit scheme providing for payment of gratuity. A controlling authority is appointed by the appropriate Government under section 3. and Parliament has made him responsible for the administration of the entireall these considerations, the conclusion is inescapable that Parliament intended that proceedings for payment of gratuity due under the Payment of Gratuity Act must be taken under that Act and not under any other. That being so, it must be held that the applications filed by the employee respondents under section 33-C(2) o f the Industrial Disputes Act did not lie, and the Labour Court had no jurisdiction to entertain and dispose of them. On that ground, this appeal mustthe circumstances, it is not necessary to notice the further submission on behalf of the appellant that where a serious dispute exists in regard to the basis of a claim for payment of gratuity, no proceedings will lie under section 33-C(2)of the Industrial Disputes | 1 | 2,502 | 832 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
widest terms. Except for superannuation, any termination of service would amount to "retirement" for the purposes of the Act. Retrenchment is a termination of service. It is immaterial that the termination is occasioned by the need to discharge surplus labour. That retrenchment implies the discharge of surplus labour was explained in Bersi Light Railway Company Labour v. K. M. Joglekar. Nonetheless, it amounts to termination of service. We are of opinion that the retrenchment of the employee respondents falls within the scope of sect ion 4(1) of the Payment of Gratuity Act, and the employee respondents are therefore entitled to gratuity under that provision.6. The third contention raised by the appellant is that the employee respondents were not entitled to apply under section 33-C(2) of the Industrial Disputes Act, 1947 for payment of the gratuity, and should have, if at all, applied under the provisions of the Payment of Gratuity Act. It is urged that the Payment of Gratuity Act is a self-contained code incorporating all the essential provisions relating to payment of gratuity which can be claimed under that Act, and its provisions impliedly exclude recourse to any other statute for that purpose. The contention has force and must be accepted. A careful perusal of the relevant provisions of the Payment of Gratuity Act shows that Parliament has enacted a closely knit scheme providing for payment of gratuity. A controlling authority is appointed by the appropriate Government under section 3. and Parliament has made him responsible for the administration of the entire Act. In what event gratuity will become payable and how it will be quantified are detailed in section 4. Section 7(1) entitled a person eligible for payment of gratuity to apply in that behalf to the employer. Under section 7(2), the employer is obliged, as soon as gratuity becomes payable and whether an application has or has not been made for payment of gratuity, to determine th e amount of gratuity and inform the person to whom the gratuity is payable specifying the amount of gratuity so determined. He is obliged, by virtue of the same provision, to inform the controlling authority also, thus ensuring that the controlling authority is seized at all times of information in regard to gratuity as it becomes payable. If a dispute is raised in regard to the amount of gratuity payable or as to the admissibility of any claim to gratuity, or as to the person entitled to receive the gratuity, section 7(4) (a) requires the employer to deposit with the controlling authority such amount as he admits to be payable by him as gratuity. The controlling authority is empowered. under section 7(4)(b), to enter upon an adjudication of the dispute, and after due inquiry, and after giving the parties to the dispute a reasonable opportunity of being heard, he is required to determine the amount of gratuity payable. In this regard, the controlling authority ha s all the powers as are vested in a court while trying a suit under the Code of Civil Procedure, 1908 in respect of obtaining evidentiary material and the recording of evidence. The amount deposited by the employer with the controlling authority a s the admitted amount of gratuity will be paid over by the controlling authority to the employee or his nominee or heir. Section 7(7) provides an appeal against the order of the controlling authority under section 7(4) to the appropriate Government or such other authority as may be specified by the appropriate Government in that behalf. The appropriate Government or the appellate authority is empowered under section 7(8), after giving the parties to the appeal a reasonable opportunity of being heard, to confirm, modify or reverse the decision of the controlling authority. Where the amount of gratuity payable is not paid by the employer with in the prescribed time, the controlling authority is required by section 8, on application made to it by the aggrieved person, to issue a certificate for that amount to the Collector. The Collector, thereupon, is empowered to recover the amount of gratuity, together with compound interest thereon at the rate of nine per cent per annum from the date of expiry of the prescribed time, as arrears of land revenue, and pay the same to the person entitled thereto.It is apparent that the Payment of Gratuity Act enacts a complete code containing detailed provisions covering all the essential features of a scheme for payment of gratuity. It creates the right to payment of gratuity, indicates when the right will accrue, and lays down the principles for quantification of the gratuity. It provides further for recovery of the amount, and contains an especial provision that compound interest at nine per cent per annum will be payable on delayed payment. For the enforcement of its provisions, the Act provides for the appointment of a controlling authority, who is entrusted with the task of administering the Act. The fulfilment of the rights and obligations of the parties are made his responsibility, and he has been invested with an amplitude of power for the full discharge of that responsibility. Any error committed by him can be corrected in appeal by the appropriate Government or an appellate authority particularly constituted under the Act.7. Upon all these considerations, the conclusion is inescapable that Parliament intended that proceedings for payment of gratuity due under the Payment of Gratuity Act must be taken under that Act and not under any other. That being so, it must be held that the applications filed by the employee respondents under section 33-C(2) o f the Industrial Disputes Act did not lie, and the Labour Court had no jurisdiction to entertain and dispose of them. On that ground, this appeal must succeed.8. In the circumstances, it is not necessary to notice the further submission on behalf of the appellant that where a serious dispute exists in regard to the basis of a claim for payment of gratuity, no proceedings will lie under section 33-C(2) of the Industrial Disputes Act.9.
### Response:
1
### Explanation:
Section 1(3) (b) speaks of "any law for the time being in force in r elation to shops and establishments in a State." There can be no dispute that the Payment of Wages Act is in force in the State ofis difficult to accept that contention because there is no warrant for so limiting the meaning of the expression "law " in section 1(3) (b). The expression is comprehensive in its scope, and can mean a law in relation to shops as well as, separately, a law in relation to establishments, or a law in relation to shops and commercial establishments and a law in relation t o noncommercial establishments. Had section 1(3)(b) intended to refer to a single enactment, surely the appellant would have been able to point to such a statute, that is to say, a statute relating to shops and establishments, both commercial and non-commercial. The Punjab Shops &Commercial Establishments Act does not relate to all kinds of establishments. Besides shops, it relates to commercial establishments alone. Had the intention of Parliament been, when enacting section 1(3)(b), to refer to a law relating to commercial establishments, it would not have left the expression "establishments" unqualified. We have carefully examined the various provisions ofthe Payment of Gratuity Act,and we are unable to discern any reason for giving the limited meaning to section 1(3) (b) urged before us on behalf of the1(3) (b) applies to every establishment within the meaning of any law for the time being in force in relation to establishment s in a State. Such an establishment would include an industrial establishment within the meaning of section 2(ii) (g) of the Payment of Wages Act. Accordingly, we are of opinion that the Payment of Gratuity Act applies to an establishment in which any work relating to construction, development or maintenance of buildings, roads, bridges or canals, or relating to operations connected with navigation, irrigation or the supply of water, or relating to the generation , transmission and distribution of electricity or any other form of power is being carried on. The Hydel Upper Bari Doab Construction Project is such an establishment, and the Payment of Gratuity Act applies toregard to the definition of "superannuation" in section 2(r) of the Act, it is clear that the case is not one under clause (a). Nor, admittedly, is it a case which falls under clause (c). As regards clause (b), it is not a case of resignation. The only question is whether it can be regarded under clause (b) as a case of retirement. The expression "retirement" has been defined by section 2(q) to mean "termination of the service of an employee otherwise than on superannuation." The definition is framed in the widest terms. Except for superannuation, any termination of service would amount to "retirement" for the purposes of the Act. Retrenchment is a termination of service. It is immaterial that the termination is occasioned by the need to discharge surplus labour.We are of opinion that the retrenchment of the employee respondents falls within the scope of sect ion 4(1) ofthe Payment of Gratuity Act,and the employee respondents are therefore entitled to gratuity under thatcareful perusal of the relevant provisions of the Payment of Gratuity Act shows that Parliament has enacted a closely knit scheme providing for payment of gratuity. A controlling authority is appointed by the appropriate Government under section 3. and Parliament has made him responsible for the administration of the entireall these considerations, the conclusion is inescapable that Parliament intended that proceedings for payment of gratuity due under the Payment of Gratuity Act must be taken under that Act and not under any other. That being so, it must be held that the applications filed by the employee respondents under section 33-C(2) o f the Industrial Disputes Act did not lie, and the Labour Court had no jurisdiction to entertain and dispose of them. On that ground, this appeal mustthe circumstances, it is not necessary to notice the further submission on behalf of the appellant that where a serious dispute exists in regard to the basis of a claim for payment of gratuity, no proceedings will lie under section 33-C(2)of the Industrial Disputes
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Amritsagar Gupta & Ors Vs. Sudesh Behari Lal & Ors | claimed that those properties had been gifted to him by Krishen Gopal. As a result of this dispute Jawala Prashad instituted on January 20, 1943, Civil Suit No. 15 of 1943 against Banwari Lal Verma claiming possession of the suit properties on the strength of the alleged gift in his favour. In defence Banwari Lal Verma pleaded that those properties had been gifted to him by Krishen Gopal. The principal issue that arose for decision in that suit was whether the suit properties had been gifted to Jawala Prashad or Banwari Lal Verma. The trial Court dismissed the suit but in appeal the decree of the trial Court was reversed and the suit was decreed as prayed for. That decision was confirmed by the High Court and thereafter by this Court in Civil Appeal No. 164 of 1953. After the decision of this Court Banwari Lal Verma made various applications to this Court asking for reliefs which if they had been granted, would have practically nullified the effect of the decree but those applications were rejected by this Court. Thereafter efforts appear to have been made to obstruct the execution of the decree in diverse ways. When every one of those efforts failed Rangi Lal Verma, the eldest son of Banwari Lal Verma filed a suit praying for a declaration that the suit properties belonged to his joint family consisting of Banwari Lal Verma and his sons. This suit was dismissed for non-prosecution .It is only thereafter the present suit has been filed by one of the sons of Banwari Lal Verma claiming partition in the suit properties on the allegation that the same had been gifted by Krishen Gopal to his joint family.4. The gift put forward by the plaintiff is said to have been made in 1928. Admittedly at that time all the sons of Banwari Lal Verma were minors (see the affidavit-filed in this Court by Rangi Lal on behalf of the plaintiff, on February 26, 1969). Therefore naturally the gift if true could have been accepted only by Banwari Lal Verma who was the Karta of the family at that time. It was not even urged that Banwari Lal Verma did not safeguard the interest of his family while contesting the previous suit. Further it is not the case of the respondents that there was any conflict of interest between Banwari Lal Verma and his sons. The facts disclosed make it obvious that Banwari Lal Verma and after his death his sons are availing themselves of every possible loophole in our judicial system to delay, if not defeat the course of justice. The effort is one and continuous. The suit from which this appeal has arisen is a clear abuse of judicial process. It is in this setting that we have to see whether the decision in Civil Suit No. 15 of 1943 operates as res judicata in the present case.5. In the Civil Suit No. 15 of 1943, there was no room for controversy as to whether the alleged gift was in favour of Banwari Lal Verma in his individual capacity or in his favour as the Karta of his family. Therein the controversy was whether the suit properties had been gifted to Jawala Prasad or Banwari Lal Verma. As seen earlier Banwari Lal Verma pleaded that they had been gifted in his favour. He did not make it clear nor was it necessary for him to do so in that suit as to whether they were gifted to him as the Karta of the family or in his individual capacity. The properties that were in dispute in the former suit as well as in the present suit are identical properties. It cannot be dispute that Banwari Lal Verma by himself could have represented his family in that suit. That suit must be deemed to have been instituted against Banwari Lal Verma in that capacity in which he claimed title to it. If his claim in that suit is understood to have been made on behalf of his family then he must be deemed to have been sued therein as the Karta of his family. It was for Banwari Lal Verma to make clear the capacity in which he was defending the suit That being so we fail to appreciate the conclusion of the High Court that the decision in the previous suit does not operate as res judicata in the present suit.6. It is not necessary, in order that a decree against the manager may operate as res judicata against coparceners who were not parties to the suit that the plaint or written statement should state in express terms that he is suing as manager or is being sued as a manager.It is sufficient if the manager was in fact suing or being sued as representing the whole family see Lalchand v. Sheogobind, ILR 8 Pat 788 = (AIR 1929 Pat 741 ); Ram Kishan v. Ganga, Ram, ILR 12 Lah 428 = (AIR 1931 Lah 559); Pirthipal Singh v. Rameshwar, ILR 2 Luck 288 = (AIR 1927 Oudh 27); Surendranath v. Sambhunath, ILR 55 Cal 210 = (AIR 1927 Cal 870 ).7. The suit by or against the manager will be deemed to be one brought by him or against him as representing the family if the circumstances of the case show that he is the manager of the family and the property involved in the suit is family property, see Mulgund Co-operative Credit Society v. Shidlingappa Ishwarappa, ILR (1941) Bom 682 = (AIR 1941 Bom 385 ). See also Veukatanarayana v. Somaraju, AIR 1937 Mad 610 (FB). It is not necessary, where the manager is the plaintiff, that the plaint should state in distinct terms that he is suing as manager or where he is the defendant that he is being sued as manager. A Karta can represent the family effectively in a proceeding though he is not named as such, see Mani Sahoo v. Lokanath Mishra, AIR 1950 Ori 140 . | 1[ds]4. The gift put forward by the plaintiff is said to have been made in 1928. Admittedly at that time all the sons of Banwari Lal Verma were minors (see the affidavit-filed in this Court by Rangi Lal on behalf of the plaintiff, on February 26, 1969). Therefore naturally the gift if true could have been accepted only by Banwari Lal Verma who was the Karta of the family at that time. It was not even urged that Banwari Lal Verma did not safeguard the interest of his family while contesting the previous suit. Further it is not the case of the respondents that there was any conflict of interest between Banwari Lal Verma and his sons. The facts disclosed make it obvious that Banwari Lal Verma and after his death his sons are availing themselves of every possible loophole in our judicial system to delay, if not defeat the course of justice. The effort is one and continuous. The suit from which this appeal has arisen is a clear abuse of judicial process. It is in this setting that we have to see whether the decision in Civil Suit No. 15 of 1943 operates as res judicata in the present case.5. In the Civil Suit No. 15 of 1943, there was no room for controversy as to whether the alleged gift was in favour of Banwari Lal Verma in his individual capacity or in his favour as the Karta of his family. Therein the controversy was whether the suit properties had been gifted to Jawala Prasad or Banwari Lal Verma. As seen earlier Banwari Lal Verma pleaded that they had been gifted in his favour. He did not make it clear nor was it necessary for him to do so in that suit as to whether they were gifted to him as the Karta of the family or in his individual capacity. The properties that were in dispute in the former suit as well as in the present suit are identical properties. It cannot be dispute that Banwari Lal Verma by himself could have represented his family in that suit. That suit must be deemed to have been instituted against Banwari Lal Verma in that capacity in which he claimed title to it. If his claim in that suit is understood to have been made on behalf of his family then he must be deemed to have been sued therein as the Karta of his family. It was for Banwari Lal Verma to make clear the capacity in which he was defending the suit That being so we fail to appreciate the conclusion of the High Court that the decision in the previous suit does not operate as res judicata in the present suit.6. It is not necessary, in order that a decree against the manager may operate as res judicata against coparceners who were not parties to the suit that the plaint or written statement should state in express terms that he is suing as manager or is being sued as a manager.It is sufficient if the manager was in fact suing or being sued as representing the whole family see Lalchand v. Sheogobind, ILR 8 Pat 788 = (AIR 1929 Pat 741 ); Ram Kishan v. Ganga, Ram, ILR 12 Lah 428 = (AIR 1931 Lah 559); Pirthipal Singh v. Rameshwar, ILR 2 Luck 288 = (AIR 1927 Oudh 27); Surendranath v. Sambhunath, ILR 55 Cal 210 = (AIR 1927 Cal 870 ).7. The suit by or against the manager will be deemed to be one brought by him or against him as representing the family if the circumstances of the case show that he is the manager of the family and the property involved in the suit is family property, see Mulgund Co-operative Credit Society v. Shidlingappa Ishwarappa, ILR (1941) Bom 682 = (AIR 1941 Bom 385 ). See also Veukatanarayana v. Somaraju, AIR 1937 Mad 610 (FB). It is not necessary, where the manager is the plaintiff, that the plaint should state in distinct terms that he is suing as manager or where he is the defendant that he is being sued as manager. A Karta can represent the family effectively in a proceeding though he is not named as such, see Mani Sahoo v. Lokanath Mishra, AIR 1950 Ori 140 . | 1 | 1,216 | 781 | ### Instruction:
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### Input:
claimed that those properties had been gifted to him by Krishen Gopal. As a result of this dispute Jawala Prashad instituted on January 20, 1943, Civil Suit No. 15 of 1943 against Banwari Lal Verma claiming possession of the suit properties on the strength of the alleged gift in his favour. In defence Banwari Lal Verma pleaded that those properties had been gifted to him by Krishen Gopal. The principal issue that arose for decision in that suit was whether the suit properties had been gifted to Jawala Prashad or Banwari Lal Verma. The trial Court dismissed the suit but in appeal the decree of the trial Court was reversed and the suit was decreed as prayed for. That decision was confirmed by the High Court and thereafter by this Court in Civil Appeal No. 164 of 1953. After the decision of this Court Banwari Lal Verma made various applications to this Court asking for reliefs which if they had been granted, would have practically nullified the effect of the decree but those applications were rejected by this Court. Thereafter efforts appear to have been made to obstruct the execution of the decree in diverse ways. When every one of those efforts failed Rangi Lal Verma, the eldest son of Banwari Lal Verma filed a suit praying for a declaration that the suit properties belonged to his joint family consisting of Banwari Lal Verma and his sons. This suit was dismissed for non-prosecution .It is only thereafter the present suit has been filed by one of the sons of Banwari Lal Verma claiming partition in the suit properties on the allegation that the same had been gifted by Krishen Gopal to his joint family.4. The gift put forward by the plaintiff is said to have been made in 1928. Admittedly at that time all the sons of Banwari Lal Verma were minors (see the affidavit-filed in this Court by Rangi Lal on behalf of the plaintiff, on February 26, 1969). Therefore naturally the gift if true could have been accepted only by Banwari Lal Verma who was the Karta of the family at that time. It was not even urged that Banwari Lal Verma did not safeguard the interest of his family while contesting the previous suit. Further it is not the case of the respondents that there was any conflict of interest between Banwari Lal Verma and his sons. The facts disclosed make it obvious that Banwari Lal Verma and after his death his sons are availing themselves of every possible loophole in our judicial system to delay, if not defeat the course of justice. The effort is one and continuous. The suit from which this appeal has arisen is a clear abuse of judicial process. It is in this setting that we have to see whether the decision in Civil Suit No. 15 of 1943 operates as res judicata in the present case.5. In the Civil Suit No. 15 of 1943, there was no room for controversy as to whether the alleged gift was in favour of Banwari Lal Verma in his individual capacity or in his favour as the Karta of his family. Therein the controversy was whether the suit properties had been gifted to Jawala Prasad or Banwari Lal Verma. As seen earlier Banwari Lal Verma pleaded that they had been gifted in his favour. He did not make it clear nor was it necessary for him to do so in that suit as to whether they were gifted to him as the Karta of the family or in his individual capacity. The properties that were in dispute in the former suit as well as in the present suit are identical properties. It cannot be dispute that Banwari Lal Verma by himself could have represented his family in that suit. That suit must be deemed to have been instituted against Banwari Lal Verma in that capacity in which he claimed title to it. If his claim in that suit is understood to have been made on behalf of his family then he must be deemed to have been sued therein as the Karta of his family. It was for Banwari Lal Verma to make clear the capacity in which he was defending the suit That being so we fail to appreciate the conclusion of the High Court that the decision in the previous suit does not operate as res judicata in the present suit.6. It is not necessary, in order that a decree against the manager may operate as res judicata against coparceners who were not parties to the suit that the plaint or written statement should state in express terms that he is suing as manager or is being sued as a manager.It is sufficient if the manager was in fact suing or being sued as representing the whole family see Lalchand v. Sheogobind, ILR 8 Pat 788 = (AIR 1929 Pat 741 ); Ram Kishan v. Ganga, Ram, ILR 12 Lah 428 = (AIR 1931 Lah 559); Pirthipal Singh v. Rameshwar, ILR 2 Luck 288 = (AIR 1927 Oudh 27); Surendranath v. Sambhunath, ILR 55 Cal 210 = (AIR 1927 Cal 870 ).7. The suit by or against the manager will be deemed to be one brought by him or against him as representing the family if the circumstances of the case show that he is the manager of the family and the property involved in the suit is family property, see Mulgund Co-operative Credit Society v. Shidlingappa Ishwarappa, ILR (1941) Bom 682 = (AIR 1941 Bom 385 ). See also Veukatanarayana v. Somaraju, AIR 1937 Mad 610 (FB). It is not necessary, where the manager is the plaintiff, that the plaint should state in distinct terms that he is suing as manager or where he is the defendant that he is being sued as manager. A Karta can represent the family effectively in a proceeding though he is not named as such, see Mani Sahoo v. Lokanath Mishra, AIR 1950 Ori 140 .
### Response:
1
### Explanation:
4. The gift put forward by the plaintiff is said to have been made in 1928. Admittedly at that time all the sons of Banwari Lal Verma were minors (see the affidavit-filed in this Court by Rangi Lal on behalf of the plaintiff, on February 26, 1969). Therefore naturally the gift if true could have been accepted only by Banwari Lal Verma who was the Karta of the family at that time. It was not even urged that Banwari Lal Verma did not safeguard the interest of his family while contesting the previous suit. Further it is not the case of the respondents that there was any conflict of interest between Banwari Lal Verma and his sons. The facts disclosed make it obvious that Banwari Lal Verma and after his death his sons are availing themselves of every possible loophole in our judicial system to delay, if not defeat the course of justice. The effort is one and continuous. The suit from which this appeal has arisen is a clear abuse of judicial process. It is in this setting that we have to see whether the decision in Civil Suit No. 15 of 1943 operates as res judicata in the present case.5. In the Civil Suit No. 15 of 1943, there was no room for controversy as to whether the alleged gift was in favour of Banwari Lal Verma in his individual capacity or in his favour as the Karta of his family. Therein the controversy was whether the suit properties had been gifted to Jawala Prasad or Banwari Lal Verma. As seen earlier Banwari Lal Verma pleaded that they had been gifted in his favour. He did not make it clear nor was it necessary for him to do so in that suit as to whether they were gifted to him as the Karta of the family or in his individual capacity. The properties that were in dispute in the former suit as well as in the present suit are identical properties. It cannot be dispute that Banwari Lal Verma by himself could have represented his family in that suit. That suit must be deemed to have been instituted against Banwari Lal Verma in that capacity in which he claimed title to it. If his claim in that suit is understood to have been made on behalf of his family then he must be deemed to have been sued therein as the Karta of his family. It was for Banwari Lal Verma to make clear the capacity in which he was defending the suit That being so we fail to appreciate the conclusion of the High Court that the decision in the previous suit does not operate as res judicata in the present suit.6. It is not necessary, in order that a decree against the manager may operate as res judicata against coparceners who were not parties to the suit that the plaint or written statement should state in express terms that he is suing as manager or is being sued as a manager.It is sufficient if the manager was in fact suing or being sued as representing the whole family see Lalchand v. Sheogobind, ILR 8 Pat 788 = (AIR 1929 Pat 741 ); Ram Kishan v. Ganga, Ram, ILR 12 Lah 428 = (AIR 1931 Lah 559); Pirthipal Singh v. Rameshwar, ILR 2 Luck 288 = (AIR 1927 Oudh 27); Surendranath v. Sambhunath, ILR 55 Cal 210 = (AIR 1927 Cal 870 ).7. The suit by or against the manager will be deemed to be one brought by him or against him as representing the family if the circumstances of the case show that he is the manager of the family and the property involved in the suit is family property, see Mulgund Co-operative Credit Society v. Shidlingappa Ishwarappa, ILR (1941) Bom 682 = (AIR 1941 Bom 385 ). See also Veukatanarayana v. Somaraju, AIR 1937 Mad 610 (FB). It is not necessary, where the manager is the plaintiff, that the plaint should state in distinct terms that he is suing as manager or where he is the defendant that he is being sued as manager. A Karta can represent the family effectively in a proceeding though he is not named as such, see Mani Sahoo v. Lokanath Mishra, AIR 1950 Ori 140 .
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