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Harbanslal Jagmohandas & Anr Vs. Prabhudas Shivlal | was dated 1 December, 1956. The tenant by reply dated 7 December, 1956 contended that the contractual rent was excessive. The tenant made an application on 5 January 1957 for fixation of standard rent under section 11(1) of the Act. While the application was pending the landlord filed the suit on 27 January, 1957 for ejectment. The tenant in the written statement reiterated the contention that the contractual rent was excessive and that the standard rent should be fixed by the Court. On these facts the question in Vora Abbasbhais case (supra) was whether the case fall within section 12(3) (a) or section 12(3) (b) of the Act.The only point in controversy in Vora Abbasbhais case (supra) was whether the second condition in section 12(3) (a) of the Act, viz., that there was no dispute regarding the amount of standard rent was fulfilled. The landlords contention was that the dispute concerning standard rent is one which must have been raised before service of the notice and since there was admittedly no dispute in regard to standard rent or permitted increases at the date of service of the notice under section 12 (2) of the Act the second condition in section 12(3) (a) that there was no dispute was satisfied. This Court did not accept the landlords contention there and held that the defendant in that case raised the contention by reply dated 7 December, 1956 that the contractual rent was excessive and raised the same contention in the application filed for fixation of standard rent.14. The Gujarat High Court in Ambalals case (supra) held that in order to attract the applicability of section 12 (3) (a) of the Act there must be non-existence of the dispute at the date of the notice and such non-existence must continue right up to the expiration of one month from the date of service of the notice so that if the dispute is raised at any time prior to the expiration of the said period on one month, the operation of section 12(3) (a) would be excluded. The latest point of time when according to Ambalals case (supra) the dispute in regard to the standard rent must be raised in order to avoid the operation of section 12(3) (a) of the Act is the expiry of one month from the date of service of the notice. Ambalals case (supra) did not say that the dispute concerning standard rent must be raised before service of the notice in order to repel the applicability of section 12(3) (a) of the Act. If the dispute is in existence prior to the expiry of one month after service of the notice though subsequent to the date of the notice that would be sufficient to oust the operation of section 12(3) (a) of the Act. The decision of this Court in Vora Abbasbhais case (supra) has not overruled the decision in Ambalals case (supra). In Ambalals case (supra) the conclusion is a single one and it is that in order to exclude the operation of section 12(3) (a) of the Act the dispute must be in existence latest within one month after service of the notice.The question as to when a dispute is to be raised came up for consideration in Shah Dhansukhlal Chhanganlal v. Dalichand Virchand Shroff &Ors.. The appellant fell into arrears of rent in that case. The landlord gave a notice to the tenant on 18 April, 1955 demanding the arrears of rent and also terminating the tenancy of the defendant with effect from 31 May, 1955. The notice was received by the defendant on 21 April, 1955, The suit for ejectment was filed on 15 March, 1956 on the ground that the defendant was in arrears of payment of rent and permitted increases and as such not entitled to the protection of the Act. This Court held that section 12 (1) of the Act must be read with Explanation and so read it means that the tenant can only be considered to be ready and willing to pay if, before the expiry of the period of one month after notice referred to in sub-section (2), he makes an application to the Court under sub-section (3) of section 11 and thereafter pays or tenders the amount of rent or permitted increases specified by the Court. This Court found in Chhaganlals case (supra) that the tenant made no payment within t he period of one month of the notice of ejectment and further that although in his written statement he raised a dispute about the standard rent he made no application in terms of section 11(3) of the Act. The tenant can claim protection fro m the operation of section 12(3) (a) of the Act only if the tenant makes an application within one month of the service of the notice terminating the tenancy by raising a dispute as to standard rent.15. The view of the Bombay High Court overlooks the limitation of time within which a dispute is to be raised as to standard rent. The view of the Bombay High Court is that disputing within one month of the service of the notice terminating the tenancy is one mode of raising a dispute and the re is another mode of raising the dispute at any stage of the suit. The view of the Bombay High Court nullifies the provisions contained in section 12 and Explanation thereto and confers a right on the tenant where the legislation does not contemplate such a right.The provisions in section 11(3) of the Act deal with orders which may be passed by the Court during the pendency of the application disputing the rent. Provisions in section 11(4) of the Act deal with orders which may be pass ed consequent upon dispute as to rent. It is only when an application disputing rent is made within the time contemplated by Explanation I to section 12 of the Act that the provisions in sub-section (3) and (4) of section 11 are attracted.16. | 1[ds]The view of the Bombay High Court overlooks the limitation of time within which a dispute is to be raised as to standard rent. The view of the Bombay High Court is that disputing within one month of the service of the notice terminating the tenancy is one mode of raising a dispute and the re is another mode of raising the dispute at any stage of the suit. The view of the Bombay High Court nullifies the provisions contained in section 12 and Explanation thereto and confers a right on the tenant where the legislation does not contemplate such a right.The provisions in section 11(3) of the Act deal with orders which may be passed by the Court during the pendency of the application disputing the rent. Provisions in section 11(4) of the Act deal with orders which may be pass ed consequent upon dispute as to rent. It is only when an application disputing rent is made within the time contemplated by Explanation I to section 12 of the Act that the provisions in sub-section (3) and (4) of section 11 are attracted. | 1 | 3,923 | 204 | ### 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:
was dated 1 December, 1956. The tenant by reply dated 7 December, 1956 contended that the contractual rent was excessive. The tenant made an application on 5 January 1957 for fixation of standard rent under section 11(1) of the Act. While the application was pending the landlord filed the suit on 27 January, 1957 for ejectment. The tenant in the written statement reiterated the contention that the contractual rent was excessive and that the standard rent should be fixed by the Court. On these facts the question in Vora Abbasbhais case (supra) was whether the case fall within section 12(3) (a) or section 12(3) (b) of the Act.The only point in controversy in Vora Abbasbhais case (supra) was whether the second condition in section 12(3) (a) of the Act, viz., that there was no dispute regarding the amount of standard rent was fulfilled. The landlords contention was that the dispute concerning standard rent is one which must have been raised before service of the notice and since there was admittedly no dispute in regard to standard rent or permitted increases at the date of service of the notice under section 12 (2) of the Act the second condition in section 12(3) (a) that there was no dispute was satisfied. This Court did not accept the landlords contention there and held that the defendant in that case raised the contention by reply dated 7 December, 1956 that the contractual rent was excessive and raised the same contention in the application filed for fixation of standard rent.14. The Gujarat High Court in Ambalals case (supra) held that in order to attract the applicability of section 12 (3) (a) of the Act there must be non-existence of the dispute at the date of the notice and such non-existence must continue right up to the expiration of one month from the date of service of the notice so that if the dispute is raised at any time prior to the expiration of the said period on one month, the operation of section 12(3) (a) would be excluded. The latest point of time when according to Ambalals case (supra) the dispute in regard to the standard rent must be raised in order to avoid the operation of section 12(3) (a) of the Act is the expiry of one month from the date of service of the notice. Ambalals case (supra) did not say that the dispute concerning standard rent must be raised before service of the notice in order to repel the applicability of section 12(3) (a) of the Act. If the dispute is in existence prior to the expiry of one month after service of the notice though subsequent to the date of the notice that would be sufficient to oust the operation of section 12(3) (a) of the Act. The decision of this Court in Vora Abbasbhais case (supra) has not overruled the decision in Ambalals case (supra). In Ambalals case (supra) the conclusion is a single one and it is that in order to exclude the operation of section 12(3) (a) of the Act the dispute must be in existence latest within one month after service of the notice.The question as to when a dispute is to be raised came up for consideration in Shah Dhansukhlal Chhanganlal v. Dalichand Virchand Shroff &Ors.. The appellant fell into arrears of rent in that case. The landlord gave a notice to the tenant on 18 April, 1955 demanding the arrears of rent and also terminating the tenancy of the defendant with effect from 31 May, 1955. The notice was received by the defendant on 21 April, 1955, The suit for ejectment was filed on 15 March, 1956 on the ground that the defendant was in arrears of payment of rent and permitted increases and as such not entitled to the protection of the Act. This Court held that section 12 (1) of the Act must be read with Explanation and so read it means that the tenant can only be considered to be ready and willing to pay if, before the expiry of the period of one month after notice referred to in sub-section (2), he makes an application to the Court under sub-section (3) of section 11 and thereafter pays or tenders the amount of rent or permitted increases specified by the Court. This Court found in Chhaganlals case (supra) that the tenant made no payment within t he period of one month of the notice of ejectment and further that although in his written statement he raised a dispute about the standard rent he made no application in terms of section 11(3) of the Act. The tenant can claim protection fro m the operation of section 12(3) (a) of the Act only if the tenant makes an application within one month of the service of the notice terminating the tenancy by raising a dispute as to standard rent.15. The view of the Bombay High Court overlooks the limitation of time within which a dispute is to be raised as to standard rent. The view of the Bombay High Court is that disputing within one month of the service of the notice terminating the tenancy is one mode of raising a dispute and the re is another mode of raising the dispute at any stage of the suit. The view of the Bombay High Court nullifies the provisions contained in section 12 and Explanation thereto and confers a right on the tenant where the legislation does not contemplate such a right.The provisions in section 11(3) of the Act deal with orders which may be passed by the Court during the pendency of the application disputing the rent. Provisions in section 11(4) of the Act deal with orders which may be pass ed consequent upon dispute as to rent. It is only when an application disputing rent is made within the time contemplated by Explanation I to section 12 of the Act that the provisions in sub-section (3) and (4) of section 11 are attracted.16.
### Response:
1
### Explanation:
The view of the Bombay High Court overlooks the limitation of time within which a dispute is to be raised as to standard rent. The view of the Bombay High Court is that disputing within one month of the service of the notice terminating the tenancy is one mode of raising a dispute and the re is another mode of raising the dispute at any stage of the suit. The view of the Bombay High Court nullifies the provisions contained in section 12 and Explanation thereto and confers a right on the tenant where the legislation does not contemplate such a right.The provisions in section 11(3) of the Act deal with orders which may be passed by the Court during the pendency of the application disputing the rent. Provisions in section 11(4) of the Act deal with orders which may be pass ed consequent upon dispute as to rent. It is only when an application disputing rent is made within the time contemplated by Explanation I to section 12 of the Act that the provisions in sub-section (3) and (4) of section 11 are attracted.
|
Bhagwan Dass Vs. Kamal Abrol | the place at which the person is residing in law. The latter form of residence may or may not be the actual residence or the place where the person actually stays or reside. A person holding property or land in a particular place or city or having some ancestral roots to the city may be a resident of that particular place in the legal sense, but his actual residence will be the place where he is presently residing and coupled with the fact of animus manedi or an intention to stay for a considerable period. The concept of de facto and de jure residence can also be understood by the following example. If a person suppose has the residency certificate of a place say A, but actually for his living he stays at the place B. Then de jure he can be said to be the resident of place A but de facto he is the resident of the place B. In U.O.I. v. Dudh Nath Mishra and Ors., AIR 2000 SC 525 Division Bench of this Court has held that the word resides has to be interpreted in the context of the purpose of the statute in which the words resides is used. The word resident is read with word ordinarily hence making the phrase ordinarily resident. It is clear that the person, before he can be said to be ordinarily residing at a particular place has to have an intention to stay at that place for a considerable length of time and it would not include a visit of a short or casual presence at that place. From the aforesaid analysis it is apparent that the word residence is generally understood as referring to a person in connection with the place where he lives, and may be defined as one who resides in a place or one who dwells in a place for a considerable period of time as distinguished from one who merely works in a certain locality or comes casually for a visit and the place of work or the place of casual visit are different from the place of residence. There are two classifications of the meaning of the word residence. First is in the form of permanent and temporary residence and the second classification is based on de facto and de jure residence. The de facto concept of residence can also be understood clearly by the meaning of the word residence as given in the Black Law Dictionary, 8th Edition. It is given that the word residence means bodily presence as an inhabitant in a given place. Thus de facto residence is also to be understood as the place where one regularly resides as different to the places where he is connected to by mere ancestral connections or political connections or connection by marriage. In the present case, the necessary eligibility criterion requires the applicant to be a resident of Kangra district. 10. The advertisement inviting the applications has not defined the same and hence it would be necessary to see the intention of the framers of the eligibility criteria to understand the true meaning or the sense for which the word resident is used or as to why the criteria of resident is put as an eligibility criteria for allotment of LPG. In the present case the intention of the framers appears to be to provide employment or source of earning for the residents of the Kangra district in the form of LPG dealership/distributorship. The eligibility criterion requires the person to be a resident of Kangra district only in the actual sense and not in any other sense. What is required to fulfill the eligibility criteria of the residence is that the person should be a de facto residence and not to have the mere connection with the place on account of her husband having some personal and ancestral property in Kangra. There is no finding recorded by the Court that the husband of Respondent No.1 is permanently residing at Kangra or has permanent abode in Kangra. From the finding arrived at by the High Court it can be said that her husband having ancestral property in Kangra is a visitor to that place and occasionally resides there for a few days. Respondent No.1 prima facie appears to be a permanent resident of Mandi, since her name appears in the voters list of Mandi and that she has been drawing her ration from Mandi as per the case set up by the appellants. It is further clear that the intention of providing employment and source of earning to the residents of the place would be fulfilled only if the person is actually living in Kangra and not by his/her remote connection to the place. It may also be seen that another eligibility criteria is that the person should not be a partner or having any dealership or distributorship agency in any petroleum company and, therefore, the dealership/distributorship has to be allotted to the person who does not hold any other dealership/distributorship agency of any other petroleum company. This term indicates that the corporation wants that the dealership at a particular place have to be handled by that person, which would necessarily require the personal presence of that person at the place of business. The notice of intent issued to the respondent no.1 on March 3, 1988 further clarifies this requirement when it says that the dealer is to be a full time working dealer which necessitates the permanent residence at a place for which the dealership license is given. When the agency requires full time working dealer it would be only possible if the person actually resides in Kangra district and not working through agent or servants engaged for the said purpose. This further indicates that the dealer is required to be a de facto resident of the place from where the dealership license is to be issued and it is not permissible to have casual connection or temporary residence at that place. | 1[ds]9. The court has further said in paragraph 13 that it is plain in the context of clause (ii) of Section 19 of the Act, that the word resides meant actual place of residence and not a legal or constructive residence. It clearly does not indicate the place of origin.10. The advertisement inviting the applications has not defined the same and hence it would be necessary to see the intention of the framers of the eligibility criteria to understand the true meaning or the sense for which the word resident is used or as to why the criteria of resident is put as an eligibility criteria for allotment of LPG. In the present case the intention of the framers appears to be to provide employment or source of earning for the residents of the Kangra district in the form of LPG dealership/distributorship. The eligibility criterion requires the person to be a resident of Kangra district only in the actual sense and not in any other sense. What is required to fulfill the eligibility criteria of the residence is that the person should be a de facto residence and not to have the mere connection with the place on account of her husband having some personal and ancestral property in Kangra. There is no finding recorded by the Court that the husband of Respondent No.1 is permanently residing at Kangra or has permanent abode in Kangra. From the finding arrived at by the High Court it can be said that her husband having ancestral property in Kangra is a visitor to that place and occasionally resides there for a few days. Respondent No.1 prima facie appears to be a permanent resident of Mandi, since her name appears in the voters list of Mandi and that she has been drawing her ration from Mandi as per the case set up by the appellants. It is further clear that the intention of providing employment and source of earning to the residents of the place would be fulfilled only if the person is actually living in Kangra and not by his/her remote connection to the place. It may also be seen that another eligibility criteria is that the person should not be a partner or having any dealership or distributorship agency in any petroleum company and, therefore, the dealership/distributorship has to be allotted to the person who does not hold any other dealership/distributorship agency of any other petroleum company. This term indicates that the corporation wants that the dealership at a particular place have to be handled by that person, which would necessarily require the personal presence of that person at the place of business. The notice of intent issued to the respondent no.1 on March 3, 1988 further clarifies this requirement when it says that the dealer is to be a full time working dealer which necessitates the permanent residence at a place for which the dealership license is given. When the agency requires full time working dealer it would be only possible if the person actually resides in Kangra district and not working through agent or servants engaged for the said purpose. This further indicates that the dealer is required to be a de facto resident of the place from where the dealership license is to be issued and it is not permissible to have casual connection or temporary residence at that placeThe word resident is in common usage and many definitions were attributed to it in different decisions. Nevertheless, it is difficult to give an exact definition for the term is flexible, elastic and somewhat ambiguous. The meaning of the word resident in itself creates certain doubts. It does not have any technical meaning and no fixed meaning, would be applicable in all the facts and circumstances. It is used in various senses and has received various interpretations by the Courts. Generally, the construction of the term is governed by the connection in which it is used and it is dependent on the context of the subject matter, and the object, the purpose or result designed to be accompanied by its use, and the meaning has to be adduced from the facts and circumstances taken together in each particular case. The word resident as defined in Oxford Dictionary isto dwell permanently or for considerable time, to have ones stay or usual abode, to live in or at a particular place. Similarly, the Websters Dictionary has defined it asto dwell permanently and for any length of time and words like dwelling place or abode are held to be synonymous. From the above it can be seen that the term residence makes it clear that the word residents includes two types which are: 1) a permanent residence and 2) a temporary residence. First type of residence form all the permanent dwelling which means that the person has settled down at a particular place permanently and regularly for some purpose. The second type refers to a situation that the person is not residing at a place forever but residing at a place for a temporary period or not for a considerable length of time. This is also referred to a temporary living in a place. Hence, in one place the word residence is interpreted in the strict sense to include only permanent living at a place which may be referred to a domicile and in the second place the word is interpreted flexible sense to show a temporary or tentative residence. The concept of residence has obtained varied judicial opinions and responses. To start with, in the case of Sarat Chandra Basu v. Bijoy Chand Mahatab Maharajadhiraj Bahadur of Burdwan, AIR 1937 PC 46 , the Privy Council while dealing with the word resides as it occurs in Section 33 of the Registration Act, 1908 has observed that:the expression resides as used in Section 33 is not defined in the statute, but there is no reason for assuming that it contemplates only permanent residence and excludes temporary residence7. The decision of the Privy Council was quoted with approval and followed by the Supreme Court in the case of Sri Sri Sri Kishore Chandra Singh v. Babu Ganesh Prasad Bhagat and Ors, AIR 1954 SC 316 . The Supreme Court later on in the decision Mst. Jagir Kaur and another v. Jaswant Singh AIR 1963 SC 150 has defined the word resides in the following manner: a person resides in a place if through choice make it his abode permanently or even temporarily9. The court has further said in paragraph 13 that it is plain in the context of clause (ii) of Section 19 of the Act, that the word resides meant actual place of residence and not a legal or constructive residence. It clearly does not indicate the place of origin.The words residence is flexible and has many shades of meaning but it must take its colour and content from the context in which it appears and it cannot be read in isolation. By this decision another dimension was added to the concept of residence in the form of concept of de facto residence and the concept of de jure residence. The Supreme Court in this case has clearly distinguished between the concept of actual residence or de facto residence and legal residence or de j ure residence. The actual residence means the place where the person is residing actually at a given point of time. On the other hand concept of de jure residence or the legal residence means the place at which the person is residing in law. The latter form of residence may or may not be the actual residence or the place where the person actually stays or reside. A person holding property or land in a particular place or city or having some ancestral roots to the city may be a resident of that particular place in the legal sense, but his actual residence will be the place where he is presently residing and coupled with the fact of animus manedi or an intention to stay for a considerable period. The concept of de facto and de jure residence can also be understood by the following example. If a person suppose has the residency certificate of a place say A, but actually for his living he stays at the place B. Then de jure he can be said to be the resident of place A but de facto he is the resident of the place B. In U.O.I. v. Dudh Nath Mishra and Ors., AIR 2000 SC 525 Division Bench of this Court has held that the word resides has to be interpreted in the context of the purpose of the statute in which the words resides is used. The word resident is read with word ordinarily hence making the phrase ordinarily resident. It is clear that the person, before he can be said to be ordinarily residing at a particular place has to have an intention to stay at that place for a considerable length of time and it would not include a visit of a short or casual presence at that place. From the aforesaid analysis it is apparent that the word residence is generally understood as referring to a person in connection with the place where he lives, and may be defined as one who resides in a place or one who dwells in a place for a considerable period of time as distinguished from one who merely works in a certain locality or comes casually for a visit and the place of work or the place of casual visit are different from the place of residence. There are two classifications of the meaning of the word residence. First is in the form of permanent and temporary residence and the second classification is based on de facto and de jure residence. The de facto concept of residence can also be understood clearly by the meaning of the word residence as given in the Black Law Dictionary, 8th Edition. It is given that the word residence means bodily presence as an inhabitant in a given place. Thus de facto residence is also to be understood as the place where one regularly resides as different to the places where he is connected to by mere ancestral connections or political connections or connection by marriage. In the present case, the necessary eligibility criterion requires the applicant to be a resident of Kangra district. | 1 | 3,312 | 1,833 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
the place at which the person is residing in law. The latter form of residence may or may not be the actual residence or the place where the person actually stays or reside. A person holding property or land in a particular place or city or having some ancestral roots to the city may be a resident of that particular place in the legal sense, but his actual residence will be the place where he is presently residing and coupled with the fact of animus manedi or an intention to stay for a considerable period. The concept of de facto and de jure residence can also be understood by the following example. If a person suppose has the residency certificate of a place say A, but actually for his living he stays at the place B. Then de jure he can be said to be the resident of place A but de facto he is the resident of the place B. In U.O.I. v. Dudh Nath Mishra and Ors., AIR 2000 SC 525 Division Bench of this Court has held that the word resides has to be interpreted in the context of the purpose of the statute in which the words resides is used. The word resident is read with word ordinarily hence making the phrase ordinarily resident. It is clear that the person, before he can be said to be ordinarily residing at a particular place has to have an intention to stay at that place for a considerable length of time and it would not include a visit of a short or casual presence at that place. From the aforesaid analysis it is apparent that the word residence is generally understood as referring to a person in connection with the place where he lives, and may be defined as one who resides in a place or one who dwells in a place for a considerable period of time as distinguished from one who merely works in a certain locality or comes casually for a visit and the place of work or the place of casual visit are different from the place of residence. There are two classifications of the meaning of the word residence. First is in the form of permanent and temporary residence and the second classification is based on de facto and de jure residence. The de facto concept of residence can also be understood clearly by the meaning of the word residence as given in the Black Law Dictionary, 8th Edition. It is given that the word residence means bodily presence as an inhabitant in a given place. Thus de facto residence is also to be understood as the place where one regularly resides as different to the places where he is connected to by mere ancestral connections or political connections or connection by marriage. In the present case, the necessary eligibility criterion requires the applicant to be a resident of Kangra district. 10. The advertisement inviting the applications has not defined the same and hence it would be necessary to see the intention of the framers of the eligibility criteria to understand the true meaning or the sense for which the word resident is used or as to why the criteria of resident is put as an eligibility criteria for allotment of LPG. In the present case the intention of the framers appears to be to provide employment or source of earning for the residents of the Kangra district in the form of LPG dealership/distributorship. The eligibility criterion requires the person to be a resident of Kangra district only in the actual sense and not in any other sense. What is required to fulfill the eligibility criteria of the residence is that the person should be a de facto residence and not to have the mere connection with the place on account of her husband having some personal and ancestral property in Kangra. There is no finding recorded by the Court that the husband of Respondent No.1 is permanently residing at Kangra or has permanent abode in Kangra. From the finding arrived at by the High Court it can be said that her husband having ancestral property in Kangra is a visitor to that place and occasionally resides there for a few days. Respondent No.1 prima facie appears to be a permanent resident of Mandi, since her name appears in the voters list of Mandi and that she has been drawing her ration from Mandi as per the case set up by the appellants. It is further clear that the intention of providing employment and source of earning to the residents of the place would be fulfilled only if the person is actually living in Kangra and not by his/her remote connection to the place. It may also be seen that another eligibility criteria is that the person should not be a partner or having any dealership or distributorship agency in any petroleum company and, therefore, the dealership/distributorship has to be allotted to the person who does not hold any other dealership/distributorship agency of any other petroleum company. This term indicates that the corporation wants that the dealership at a particular place have to be handled by that person, which would necessarily require the personal presence of that person at the place of business. The notice of intent issued to the respondent no.1 on March 3, 1988 further clarifies this requirement when it says that the dealer is to be a full time working dealer which necessitates the permanent residence at a place for which the dealership license is given. When the agency requires full time working dealer it would be only possible if the person actually resides in Kangra district and not working through agent or servants engaged for the said purpose. This further indicates that the dealer is required to be a de facto resident of the place from where the dealership license is to be issued and it is not permissible to have casual connection or temporary residence at that place.
### Response:
1
### Explanation:
defined it asto dwell permanently and for any length of time and words like dwelling place or abode are held to be synonymous. From the above it can be seen that the term residence makes it clear that the word residents includes two types which are: 1) a permanent residence and 2) a temporary residence. First type of residence form all the permanent dwelling which means that the person has settled down at a particular place permanently and regularly for some purpose. The second type refers to a situation that the person is not residing at a place forever but residing at a place for a temporary period or not for a considerable length of time. This is also referred to a temporary living in a place. Hence, in one place the word residence is interpreted in the strict sense to include only permanent living at a place which may be referred to a domicile and in the second place the word is interpreted flexible sense to show a temporary or tentative residence. The concept of residence has obtained varied judicial opinions and responses. To start with, in the case of Sarat Chandra Basu v. Bijoy Chand Mahatab Maharajadhiraj Bahadur of Burdwan, AIR 1937 PC 46 , the Privy Council while dealing with the word resides as it occurs in Section 33 of the Registration Act, 1908 has observed that:the expression resides as used in Section 33 is not defined in the statute, but there is no reason for assuming that it contemplates only permanent residence and excludes temporary residence7. The decision of the Privy Council was quoted with approval and followed by the Supreme Court in the case of Sri Sri Sri Kishore Chandra Singh v. Babu Ganesh Prasad Bhagat and Ors, AIR 1954 SC 316 . The Supreme Court later on in the decision Mst. Jagir Kaur and another v. Jaswant Singh AIR 1963 SC 150 has defined the word resides in the following manner: a person resides in a place if through choice make it his abode permanently or even temporarily9. The court has further said in paragraph 13 that it is plain in the context of clause (ii) of Section 19 of the Act, that the word resides meant actual place of residence and not a legal or constructive residence. It clearly does not indicate the place of origin.The words residence is flexible and has many shades of meaning but it must take its colour and content from the context in which it appears and it cannot be read in isolation. By this decision another dimension was added to the concept of residence in the form of concept of de facto residence and the concept of de jure residence. The Supreme Court in this case has clearly distinguished between the concept of actual residence or de facto residence and legal residence or de j ure residence. The actual residence means the place where the person is residing actually at a given point of time. On the other hand concept of de jure residence or the legal residence means the place at which the person is residing in law. The latter form of residence may or may not be the actual residence or the place where the person actually stays or reside. A person holding property or land in a particular place or city or having some ancestral roots to the city may be a resident of that particular place in the legal sense, but his actual residence will be the place where he is presently residing and coupled with the fact of animus manedi or an intention to stay for a considerable period. The concept of de facto and de jure residence can also be understood by the following example. If a person suppose has the residency certificate of a place say A, but actually for his living he stays at the place B. Then de jure he can be said to be the resident of place A but de facto he is the resident of the place B. In U.O.I. v. Dudh Nath Mishra and Ors., AIR 2000 SC 525 Division Bench of this Court has held that the word resides has to be interpreted in the context of the purpose of the statute in which the words resides is used. The word resident is read with word ordinarily hence making the phrase ordinarily resident. It is clear that the person, before he can be said to be ordinarily residing at a particular place has to have an intention to stay at that place for a considerable length of time and it would not include a visit of a short or casual presence at that place. From the aforesaid analysis it is apparent that the word residence is generally understood as referring to a person in connection with the place where he lives, and may be defined as one who resides in a place or one who dwells in a place for a considerable period of time as distinguished from one who merely works in a certain locality or comes casually for a visit and the place of work or the place of casual visit are different from the place of residence. There are two classifications of the meaning of the word residence. First is in the form of permanent and temporary residence and the second classification is based on de facto and de jure residence. The de facto concept of residence can also be understood clearly by the meaning of the word residence as given in the Black Law Dictionary, 8th Edition. It is given that the word residence means bodily presence as an inhabitant in a given place. Thus de facto residence is also to be understood as the place where one regularly resides as different to the places where he is connected to by mere ancestral connections or political connections or connection by marriage. In the present case, the necessary eligibility criterion requires the applicant to be a resident of Kangra district.
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Sharon Michael Vs. State Of Tamil Nadu | the appellant would contend that the dispute between the parties having arisen out of a contract qua contract, the complaint petition was not maintainable. 8. Mr. V. Kanagaraj, learned senior counsel appearing on behalf of Respondent No.2, on the other hand, submitted that the complaint petition had to be filed only because the appellant did not pay the entire amount representing the value of the garments exported. It was contended that the appellants having made part payment of the entire dues cannot be permitted now to turn round and contend that they have no liability in the matter at all.9. Indisputably Respondent No.2 is the producer of the garments. The buyer is a German Company. Rightly or wrongly, the buyer refused to accept the goods, inter alia, on the premise that the same were defective and sub-standard. We will assume that the appellant company was assured payment for such supplies. Even if that be so, it would be a del credere agent. Its liability is, therefore, a civil liability. The allegations contained in the First Information Report did not reveal that any misrepresentation was made at the time of formation of the contract. The goods were to be supplied by Respondent No.2. They were presumably required to meet the requirements of the buyer. Even if the certificate granted by the appellant company was incorrect, an appropriate action against them could have been taken for breach of contract. 10. The ingredients of an offence as contained in Section 420 of IPC are as under: "i) Deception of any persons;ii) Fraudulently or dishonestly inducing any person to deliver any property; oriii) to consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit." Criminal breach of trust is defined in Section 405 of IPC. The ingredients of an offence of the criminal breach of trust are : "1. Entrusting any person with property or with any dominion over property.2. That person entrusted (a) dishonestly misappropriating or converting to his own use that property; or (b) dishonestly using or disposing of that property or willfully suffering any other person so to do in violation—(i) of any direction of law prescribing the mode in which such trust is to be discharged, or(ii) of any legal contract made touching the discharge of such trust." Ingredients of Section 409 of IPC read as under : "(i) The accused must be a public servant;(ii) He must have been entrusted, in such capacity, with property.(iii) He must have committed breach of trust in respect of such property." 11. The First Information Report contains details of the terms of contract entered into by and between the parties as also the mode and manner in which they were implemented. Allegations have been made against the appellants in relation to execution of the contract.No case of criminal misconduct on their part has been made out before the formation of the contract. There is nothing to show that the appellants herein who hold different positions in the appellant-company made any representation in their personal capacities and, thus, they cannot be made vicariously liable only because they are employees of the company. 12. In R. Kalyani v. Janak C. Mehta & Ors. [2008 (14) SCALE 85 ], this Court held : "24. As there had never been any interaction between the appellant and them, the question of any representation which is one of the main ingredients for constituting an offence of cheating, as contained in Section 415 of the Indian Penal Code, did not and could not arise.25. Similarly, it has not been alleged that they were entrusted with or otherwise had dominion over the property of the appellant or they have committed any criminal breach of trust. So far as allegations in regard to commission of the offence of forgery are concerned, the same had been made only against the respondent No. 3 and not against the respondent No. 2. Sending a copy thereof to the National Stock Exchange without there being anything further to show that the respondent No. 2 had any knowledge of the fact that the same was a forged and fabricated document cannot constitute offence. Allegations contained in the FIR are for commission of offences under a general statute. A vicarious liability can be fastened only by reason of a provision of a statute and not otherwise. For the said purpose, a legal fiction has to be created. Even under a special statute when the vicarious criminal liability is fastened on a person on the premise that he was in- charge of the affairs of the company and responsible to it, all the ingredients laid down under the statute must be fulfilled. A legal fiction must be confined to the object and purport for which it has been created." It was furthermore observed:- "27. If a person, thus, has to be proceeded with as being variously liable for the acts of the company, the company must be made an accused. In any event, it would be a fair thing to do so, as legal fiction is raised both against the Company as well as the person responsible for the acts of the Company." The liability of the company is, therefore, a civil liability. It is also not a case where although a prima facie case had been made out disclosing commission of an offence, the court is called upon to consider the defence of the accused. The First Information Report itself refers to the documents. They can, therefore, be taken into consideration for the purpose of ascertaining as to whether the allegations made in the complaint petition read as a whole, even if taken to be correct in its entirety, discloses commission of any cognizable offence or not. As admittedly Respondent No.2 was the supplier of garments which were found out to be defective in nature, we are of the opinion that the dispute between the parties is civil in nature.13. | 1[ds]Indisputably Respondent No.2 is the producer of the garments. The buyer is a German Company. Rightly or wrongly, the buyer refused to accept the goods, inter alia, on the premise that the same were defective and sub-standard. We will assume that the appellant company was assured payment for such supplies. Even if that be so, it would be a del credere agent. Its liability is, therefore, a civil liability. The allegations contained in the First Information Report did not reveal that any misrepresentation was made at the time of formation of the contract. The goods were to be supplied by Respondent No.2. They were presumably required to meet the requirements of the buyer. Even if the certificate granted by the appellant company was incorrect, an appropriate action against them could have been taken for breach ofFirst Information Report contains details of the terms of contract entered into by and between the parties as also the mode and manner in which they were implemented. Allegations have been made against the appellants in relation to execution of the contract.No case of criminal misconduct on their part has been made out before the formation of the contract. There is nothing to show that the appellants herein who hold different positions in the appellant-company made any representation in their personal capacities and, thus, they cannot be made vicariously liable only because they are employees of theliability of the company is, therefore, a civil liability. It is also not a case where although a prima facie case had been made out disclosing commission of an offence, the court is called upon to consider the defence of the accused. The First Information Report itself refers to the documents. They can, therefore, be taken into consideration for the purpose of ascertaining as to whether the allegations made in the complaint petition read as a whole, even if taken to be correct in its entirety, discloses commission of any cognizable offence or not. As admittedly Respondent No.2 was the supplier of garments which were found out to be defective in nature, we are of the opinion that the dispute between the parties is civil in nature. | 1 | 3,568 | 396 | ### Instruction:
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the appellant would contend that the dispute between the parties having arisen out of a contract qua contract, the complaint petition was not maintainable. 8. Mr. V. Kanagaraj, learned senior counsel appearing on behalf of Respondent No.2, on the other hand, submitted that the complaint petition had to be filed only because the appellant did not pay the entire amount representing the value of the garments exported. It was contended that the appellants having made part payment of the entire dues cannot be permitted now to turn round and contend that they have no liability in the matter at all.9. Indisputably Respondent No.2 is the producer of the garments. The buyer is a German Company. Rightly or wrongly, the buyer refused to accept the goods, inter alia, on the premise that the same were defective and sub-standard. We will assume that the appellant company was assured payment for such supplies. Even if that be so, it would be a del credere agent. Its liability is, therefore, a civil liability. The allegations contained in the First Information Report did not reveal that any misrepresentation was made at the time of formation of the contract. The goods were to be supplied by Respondent No.2. They were presumably required to meet the requirements of the buyer. Even if the certificate granted by the appellant company was incorrect, an appropriate action against them could have been taken for breach of contract. 10. The ingredients of an offence as contained in Section 420 of IPC are as under: "i) Deception of any persons;ii) Fraudulently or dishonestly inducing any person to deliver any property; oriii) to consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit." Criminal breach of trust is defined in Section 405 of IPC. The ingredients of an offence of the criminal breach of trust are : "1. Entrusting any person with property or with any dominion over property.2. That person entrusted (a) dishonestly misappropriating or converting to his own use that property; or (b) dishonestly using or disposing of that property or willfully suffering any other person so to do in violation—(i) of any direction of law prescribing the mode in which such trust is to be discharged, or(ii) of any legal contract made touching the discharge of such trust." Ingredients of Section 409 of IPC read as under : "(i) The accused must be a public servant;(ii) He must have been entrusted, in such capacity, with property.(iii) He must have committed breach of trust in respect of such property." 11. The First Information Report contains details of the terms of contract entered into by and between the parties as also the mode and manner in which they were implemented. Allegations have been made against the appellants in relation to execution of the contract.No case of criminal misconduct on their part has been made out before the formation of the contract. There is nothing to show that the appellants herein who hold different positions in the appellant-company made any representation in their personal capacities and, thus, they cannot be made vicariously liable only because they are employees of the company. 12. In R. Kalyani v. Janak C. Mehta & Ors. [2008 (14) SCALE 85 ], this Court held : "24. As there had never been any interaction between the appellant and them, the question of any representation which is one of the main ingredients for constituting an offence of cheating, as contained in Section 415 of the Indian Penal Code, did not and could not arise.25. Similarly, it has not been alleged that they were entrusted with or otherwise had dominion over the property of the appellant or they have committed any criminal breach of trust. So far as allegations in regard to commission of the offence of forgery are concerned, the same had been made only against the respondent No. 3 and not against the respondent No. 2. Sending a copy thereof to the National Stock Exchange without there being anything further to show that the respondent No. 2 had any knowledge of the fact that the same was a forged and fabricated document cannot constitute offence. Allegations contained in the FIR are for commission of offences under a general statute. A vicarious liability can be fastened only by reason of a provision of a statute and not otherwise. For the said purpose, a legal fiction has to be created. Even under a special statute when the vicarious criminal liability is fastened on a person on the premise that he was in- charge of the affairs of the company and responsible to it, all the ingredients laid down under the statute must be fulfilled. A legal fiction must be confined to the object and purport for which it has been created." It was furthermore observed:- "27. If a person, thus, has to be proceeded with as being variously liable for the acts of the company, the company must be made an accused. In any event, it would be a fair thing to do so, as legal fiction is raised both against the Company as well as the person responsible for the acts of the Company." The liability of the company is, therefore, a civil liability. It is also not a case where although a prima facie case had been made out disclosing commission of an offence, the court is called upon to consider the defence of the accused. The First Information Report itself refers to the documents. They can, therefore, be taken into consideration for the purpose of ascertaining as to whether the allegations made in the complaint petition read as a whole, even if taken to be correct in its entirety, discloses commission of any cognizable offence or not. As admittedly Respondent No.2 was the supplier of garments which were found out to be defective in nature, we are of the opinion that the dispute between the parties is civil in nature.13.
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Indisputably Respondent No.2 is the producer of the garments. The buyer is a German Company. Rightly or wrongly, the buyer refused to accept the goods, inter alia, on the premise that the same were defective and sub-standard. We will assume that the appellant company was assured payment for such supplies. Even if that be so, it would be a del credere agent. Its liability is, therefore, a civil liability. The allegations contained in the First Information Report did not reveal that any misrepresentation was made at the time of formation of the contract. The goods were to be supplied by Respondent No.2. They were presumably required to meet the requirements of the buyer. Even if the certificate granted by the appellant company was incorrect, an appropriate action against them could have been taken for breach ofFirst Information Report contains details of the terms of contract entered into by and between the parties as also the mode and manner in which they were implemented. Allegations have been made against the appellants in relation to execution of the contract.No case of criminal misconduct on their part has been made out before the formation of the contract. There is nothing to show that the appellants herein who hold different positions in the appellant-company made any representation in their personal capacities and, thus, they cannot be made vicariously liable only because they are employees of theliability of the company is, therefore, a civil liability. It is also not a case where although a prima facie case had been made out disclosing commission of an offence, the court is called upon to consider the defence of the accused. The First Information Report itself refers to the documents. They can, therefore, be taken into consideration for the purpose of ascertaining as to whether the allegations made in the complaint petition read as a whole, even if taken to be correct in its entirety, discloses commission of any cognizable offence or not. As admittedly Respondent No.2 was the supplier of garments which were found out to be defective in nature, we are of the opinion that the dispute between the parties is civil in nature.
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M/S. Raj Shipping & Another Vs. The State of Maharashtra, Through The Government Pleader & Others | it necessary to answer the larger questions or enter into wider debate. Therefore, we would not pursue the line of reasoning in the Karnataka High Court judgment to consider whether the conclusions reached by the said High Court are to be agreed with or otherwise. We leave such questions as are posed by the Karnataka High Court for being decided in an appropriate case.108. It is now time to note the contentions on the applicability of section 4 of the CST Act, 1956. Here as well, we have noted the contentions of both sides. Mr. Sridharan in his oral submissions as also in the written submissions and additional written submissions emphasised that even if by virtue of section 4 of the CST Act, a sale is treated as having taken place inside the State, the State cannot tax it under the States Sales Tax Act, if the same transaction satisfies section 3 of the CST Act, 1956. A very great emphasis has been laid on several judgments of the Honble Supreme Court by inviting our attention to the Sales of Goods Act, 1930.109. Mr. Sridharan, however, has not disputed the fact that for the purposes of determining the applicability of the two provisions viz. sections 3 and 4 of the CST Act, it will have to be determined firstly whether a sale or purchase of goods in the present case has taken place in the course of Inter-State trade or commerce. Section 3 of the CST Act falling in Chapter II deals with this aspect and enacts a deeming fiction. For that deeming fiction to apply there are two conditions and which are set out in clauses (a) and (b) of section 3 and there are explanations. It is thus upon fulfillment of these conditions and as set out that it could be said to be a sale in the course of Inter-State trade or commerce.110. Section 4 sub-section (1) opens with the words Subject to the provisions contained in Section 3. Section 4 deals with a situation and when is a sale or purchase of goods said to take place outside a State. Therefore, it is subject to section 3 and when a sale or purchase of goods is determined in accordance with sub-section (2) of section 4 to take place inside a State, such sale or purchase shall be deemed to have taken place outside all other States. By sub-section (2) a sale or purchase of goods shall be deemed to take place inside a State if the goods are within the Sate in the case of specific or ascertained goods, at the time the contract of sale is made and in the case of unascertained or future goods, at the time of their appropriation to the contract of sale by the seller or by the buyer, whether assent of the other party is prior or subsequent to such appropriation. Here also there is an explanation.111. If we were to determine the applicability of the provisions referred above we would have to go into the factual aspects and in great details. Concededly, in proceedings under the Bombay Sales Tax Act, 1959 (for short BST Act) particularly of the nature of appeal, the issue of BST Act not being applicable to sales covered by Chapter II to CST Act, 1956, can be raised and considered. It is not as if the Petitioners are remediless. They can rely upon the provisions and satisfy the authorities that since the sale attracts the provisions of the CST Act, 1956, particularly chapter II thereof, the same would not fall within the purview of the relevant provisions of the BST Act, 1959. On the particular sale, therefore, no tax under the BST Act is leviable and recoverable. Such contentions and by projecting the relevant and necessary facts can be raised by the Petitioners and in the event they are not favourably considered or satisfactorily dealt with, they have remedies open and further of carrying the matters in higher forums or courts. Thus, no prejudice is being caused by relegating the Petitioners to these remedies. More so, when these remedies are efficacious. Further, these being mixed questions of law and fact and concerning particular sales, the transactions and dealings between parties to the petition as also others that the writ jurisdiction is not the forum to decide or adjudicate such controversy. Therefore, we would not express any opinion on the rival contentions based on the judgments and legal provisions and leave the parties to raise them in the pending proceedings or the proceedings to be initiated and instituted but before the forums under the BST Act, 1959.112. Similarly, with regard to the other contentions of Mr. Sridharan on the goods, namely, the petroleum products in question enjoying an exemption and the Petitioners having satisfied all the pre conditions, they are entitled to such exemptions are concerned, they are also capable of being raised, dealt with and considered in proceedings under the BST Act. While challenging the assessment orders, it would be open for the Petitioners to raise the contentions of applicability of the CST Act and equally in the alternative and without prejudice that assuming those contentions are turned down and the BST Act is applicable and attracted, still the particular goods are exempt from tax. The construction and interpretation of the exemption Notification relied upon is an issue which can always be gone into and decided in the proceedings under the Act. Thus, on both counts, namely, whether jurisdictional facts or pre conditions attracting the levy are satisfied and even if these are satisfied and the levy is attracted, the particular goods are exempt from such levy, the matters can be resolved by the forums under the Act. In the absence of any favourable adjudication, there are always the higher courts available to the Petitioners. Therefore, without expressing any opinion on the rival contentions as far as the exemption Notification is concerned, we would leave the Petitioners to pursue their remedies under the Act. | 1[ds]59. Therefore, in the present case,can only be said to have occurred in the transactions of the Petitioners, when the Petitioners transports the goods to customers location, delivers the required quantity of motor spirit, after weighing of the same by customer. That takes place in the territorial waters, which are outside the State of Maharashtra. Therefore, the goods are not within the State when they are appropriated to the contract of sale under Section 4(2(b)) of the CST Act, 1956.At the cost of repetition, what we find is that the order of assessment refers to the name of the dealer, namely the Petitioner Raj Shipping Agency and also points out as to how assessment proceedings were initiated in order to ensure that in the return furnished by the dealer in respect of the financial yearturnover of sales and purchases are properly admitted. Deductions are correctly claimed, tax has been calculated at the proper rates, set off has been correctly claimed and the deemed tax in respect of the said period has been admitted to be payable and has been paid is the correct position or assertion. If the position is otherwise, then, appropriate corrective action was contemplated.The principal argument of Mr. Sridharan needs to be considered in the light of some of the documents on record. Exhibitis the invoice. M/s. Indian Oil Corporation has raised the invoice and has stated that the consignee is the present Petitioner. The other details and to be found in that invoice as also anotherare that there is a indent which is raised based on which the product high speed diesel and in the quantity mentioned in Kilo Liters has been loaded by IBP, Wadala and Raj Shipping Agency is shown as the customer. Below the same name, the name of vesselis written. The delivery location is IBP Company Limited, Wadala. In the additional affidavit, that is filed, the Petitioner states that it is engaged in the business, namely, Bunker Supplies. Bunker supplies mainly consist of supply of petroleum products such as high speed diesel oil (HSD), light diesel oil (LDO) and furnace oil (FO) to various incoming and outgoing vessels within or beyond the port limits of Mumbai Port. These outgoing vessels, to which the supplies are made, are located beyond approximately 1.55 nautical miles from the coast of Mumbai and are anchored in various anchorage points within the territorial waters of the Union of India, off the coast of Maharashtra. It is stated that the outgoing shipping vessel places an inquiry for the required quantity of HSD with the Petitioner. Pursuant to the inquiry made by the customer, the Petitioner gave a quote for their supplies. In many cases, the Petitioner enters into a formal agreement with their customers for the purchase of HSD. At page 86 of the paper book is one of the illustrative copy of such an agreement.We do not see on what basis can the Petitioner therefore assert that the sales made by the Petitioner are within the territorial waters of India and accordingly not sales liable to tax withinA perusal of these definitions together with the section 1(2) would denote as to how the Maharashtra Value Added Tax Act extends to the whole of Maharashtra. It is an Act to consolidate and amend the laws relating to the levy and collection of tax on the sale or purchase of certain goods in the State of Maharashtra.88. Therefore, it would not be proper to proceed on any assumptions straightaway. One cannot presume that merely because the tax in this case is sought to be levied, assessed and collected from the Petitioner that it is out of the purview of the MVAT Act. All the sections noted above will have to be read together and harmoniously with other provisions of the MVAT Act to find out as to whether the sale in this case could be said to be within the State of Maharashtra. For the purpose of a decision on this aspect, we would have to also consider as to whether the sale has necessarily taken place within territorial waters as claimed. The assumption on the part of the Petitioner is that the sale has taken place outside the State of Maharashtra and in territorial waters which are international in character.In that regard, we find that there are several steps which form part of the transaction undertaken by the Petitioners. Firstly, the Petitioners themselves are registered as dealers under the MVAT Act. Secondly, there is an indent/order placed on the Petitioners by the shipping lines and which order was placed by email/fax or electronically but at a place of business in Mumbai. This term has a definite legal meaning. It is defined in an inclusive manner. It includes a warehouse, godown or other place where a dealer stores his goods and any place where the dealer keeps his books of accounts. In the instant case, place of business of the Petitioner is Mumbai. He has dealt with the goods in Mumbai and which are defined to mean every kind of movable property. In the present enactment, the term goods as also petroleum products have been defined separately. It is not the case of the Petitioner that these definitions cannot be read together or that petroleum products would not be goods. The term motor spirit is also defined and it would include one of the Petitioners product, namely, high speed diesel [see section 2(15A)] whereas the word Petroleum products is defined in section 2(17)(A) of the MVAT Act. If the Petitioner is a person who for the purposes of its business buys or sells goods in the State, then, it cannot escape the tax. The only question is whether the above business is in the State. The Petitioner cannot and does not dispute that Sales Tax is leviable on the sale of motor spirit, which the goods are in question. In other words, sections 3, 4 and 6 together with its subsections signify the tax on HSD. That the Petitioner in the alternative urges that the sale in this case is outside the State and within the meaning of Chapter II of the Central Sales Tax Act, 1956 and further alternatively pleads that it is exempted from MVAT would denote as to how the levy is understood. It is only the transaction or deal with the shipping lines and undertaken by the Petitioner is claimed as not occurring within the State. That is because the HSD is supplied by barges to the ships or vessels located beyond 1 or 1.5 nautical miles in the high seas that it is urged that so long as the barge carrying the HSD does not reach the vessel, unload the same, obtains a certificate from the Master of the vessel, that there is no sale and in any event all this takes place in the high seas, therefore, it is not a sale within the State of Maharashtra. The further contention is that MVAT Act cannot apply to territorial waters for they are international boundaries and controlled by the Union. This and the earlier submission proceeds on the footing that the sale in this case has no connection or nexus with the State of Maharashtrra, we would understand it that way.91. In this case we find that the high speed diesel, a petroleum product, is the subject matter of the transaction. The petitioner placed an order on the oil companies within the State to supply a fixed quantity of this petroleum product to the petitioner so as to enable the petitioner to fulfill its contractual obligation. That contractual obligation is of bunker supplies undertaken and in this case with the party M/s. Leighton Contractors (India) Private Limited, an illustrative copy of the agreement and the contents of which we have reproduced hereinabove would show that these orders are placed from a business address at Kalina, Santacruz (East), Mumbai. This private limited company addressed the communication reproduced above and awarding the bunker service supply of fuel oil contract on Raj Shipping Agency (the petitioner). The bunker service (supply of fuel oil) is a contract awarded to the petitioner so as to enable M/s. Leighton Contractors in turn to fulfill its commitment to the Oil and Natural Gas Corporation Limited, particularly in relation to the pipeline replacement projectII. It is in that regard and bearing in mind such contracts that we must find out as to whether the Maharashtra Value Added Tax Act would apply. Merely because the high speed diesel oil is carried in barges by the petitioners for being supplied to or discharged into a vessel at high seas would it necessarily mean that the sale was in territorial waters That the sale is in territorial waters and which belongs to the Union is the argument. We find it difficult to accept it and in the given facts and circumstances.92. In that regard, we find that there is ample material in law so as to assume that the MVAT Act will apply or will take within its import such a sale.93. We must at once clarify that the principle which the Courts are required to apply is that every legislation is presumed to be territorial in its operation. The parliament or the State Legislature cannot be presumed to have exceeded their territorial powers. As has been throughout clarified that in the case of sales tax, it is not necessary that the sale or purchase should take place within the territorial limits of the State in the sense that all the ingredients of sale like the agreement to sell, the passing of title, delivery of goods etc. should have a territorial connection. Broadly speaking, local activity of buying or selling carried out in the State in relation to local goods should be sufficient basis to sustain the taxing power of the State, provided of course, such activity ultimately resulted in a concluded sale or purchase to be taxed. This principle has been enunciated in the decision reported in the case of The State of BombayAnr. v. The United Motors (India) LimitedOrs., AIR 1953, SC, 252.If we apply this principle to the facts and circumstances of the present case, we do not have any hesitation in concluding that it is the goods which have been produced or manufactured or refined by the oil companies and which are drawn from their storage tanks in fixed quantity that are supplied on demand to the Petitioner. The manufacturers as also the refineries are very much within the State of Maharashtra viz. at Mumbai. The Petitioners are at Mumbai. Meaning thereby, their place of business is at Mumbai. It is from that place that the Petitioner requests the oil companies to supply to it the high speed diesel. It is received by the Petitioner from the oil companies at Mumbai. It may be that the Petitioner treats this as a contract on which they paid the sales tax as a component of the price. However, it is that very high speed diesel and supplied to the Petitioner at Mumbai which is carried from Mumbai in furtherance of a contract with parties like M/s. Leighton, which contract is also placed and finalised from Mumbai, through the barges of the Petitioner to the vessels of M/s Leighton and which may be stationed in territorial waters. However, Leighton comes in the picture, as have been stated by them, for the purpose of fulfilling a contractual obligation of M/s. ONGC. It is for that obligation to be discharged that they have deployed the vessels. It is these vessels which require the bunker supplies and which supplies are met by the Petitioner. The subject matter of the contract with M/s. Leighton is this high speed diesel or motor spirit which is taken and carried from Mumbai. Therefore, there is sufficient territorial nexus for the Maharashtra Value Added Tax Act to apply and to be invoked to the later sale by the Petitioner of the same goods to M/s. Leighton and other entities similarly placed. We do not see how the Petitioner can escape compliance with this legislation and by contending that the contract of M/s. Leighton being a distinct contract, the sale taking place in territorial waters that the sales tax legislation or the VAT legislation of the Maharashtra State would be applicable. Its applicability has to be tested by applying the above principles and particularly the nexus theory. After having found sufficient territorial connection, namely, between the back to back transaction and the taxing authority that we are not in a position to agree with Mr. Sridharan that MVAT Act is inapplicable.96. Mr. Sridharan has relied upon the principles relating to extension of the States boundaries to the territorial waters. Prior thereto, he has also relied upon section 8 of the MVAT Act but that in our opinion refers to certain transactions to which MVAT Act will not apply and which may fall within the purview of the Central Sales Tax Act 1956. It is clear that it refers to section 4 of the Central Sales Tax Act, 1956.97. As far as the State boundaries are concerned, our attention has been invited to several works and commentaries extensively dealing with this aspect. We would not be required to refer to these commentaries, particularly relating to territorial waters by CoulsonForbes, in the view that we have taken. Once we have made a reference to the theory of nexus and which is applicable to Sales Tax legislation as held by the Honble Supreme Court, then, strictly speaking the works and commentaries need not be referred.98. Equally, the principle that the country extends to its low water mark where the high seas begin is another principle which need not be referred in details for the simple reason that it can have no application to the facts and circumstances of the present case. For the afore indicated reasons, we have found that the very goods and which have been transported by the Petitioners via barges and to the vessels stationed in the territorial waters according to it have been obtained within the State of Maharashtra. We have found that substantial part of the transaction and from the stage of acquisition of these goods, paying for them, receiving an indent or order from the shipping lines and further communications have all taken place in Mumbai within the State of Maharashtra. It is these very goods, namely, high speed diesel oil which have been filled in and loaded on to the Petitioners barges at Mallet Bunder Mumbai. These are thus the acts within the State of Maharashtra. It is in these circumstances that we have applied this theory and once it is found to be so applicable, then, where the boundaries of the State end and in relation to waters, what could be the limitation thereof are all matters which need not be considered by us. For this reason, we do not make any further reference to the decision of the US Federal Court in United States vs. State of California 1947 (332) US 19 as also the decision of the Canadian Supreme Court reported as 1967 SCR 792. While it may be true that some of these decisions may make a reference to the taxing power of the State but having found that the ambit and scope of taxing power can be interpreted with the aid of nexus theory and that can be invoked that we do not deem it fit and proper to dwell on this aspect any further.99. It is also then not necessary to make a reference to the judgment of the Honble Supreme Court in the case of Gramaphone Company Limited vs. Union of India 1984 (2) SCC 534. We are also not required then to refer to the principles of international law, particularly as to how a State or a country has been identified.100. For the aforesaid reasons, we also need not refer to the Constituent Assembly debates with reference to the territorial waters and Article 297 of the Constitution of India or Article 366(30) of the Indian Constitution.101. For the very same reasons the definition of the term State as appearing in General Clauses Act, 1897 and the Bombay General Clauses Act,1904 also need not bedo not think that we are required to decide any such controversy. Once we have held that the Assessing Officer could have taken note of the Petitioners transaction and probed and investigated it further so as to bring it to tax also by applying the nexus theory, then, this decision need not detainlearned single Judge took the view that the tug in question was in the State of Karnataka, though in territorial waters which forms the territory of the State, the question as to whether there was transfer of right to use the tug being one of fact the same has to be decided on the basis of the evidence produced by the parties before the second respondent and the same cannot be considered in the Writ Petition. That is how the Writ Petition was dismissed and the appeal was filed.We are of the considered view that it is not necessary to decide such wider questions as are posed by the Karnataka High Court and answer them. For the purpose of our judgment and having reached our conclusions on the theory of nexus or applying the principle of territorial nexus we do not deem it necessary to answer the larger questions or enter into wider debate. Therefore, we would not pursue the line of reasoning in the Karnataka High Court judgment to consider whether the conclusions reached by the said High Court are to be agreed with or otherwise. We leave such questions as are posed by the Karnataka High Court for being decided in an appropriateno prejudice is being caused by relegating the Petitioners to these remedies. More so, when these remedies are efficacious. Further, these being mixed questions of law and fact and concerning particular sales, the transactions and dealings between parties to the petition as also others that the writ jurisdiction is not the forum to decide or adjudicate such controversy. Therefore, we would not express any opinion on the rival contentions based on the judgments and legal provisions and leave the parties to raise them in the pending proceedings or the proceedings to be initiated and instituted but before the forums under the BST Act, 1959.112. Similarly, with regard to the other contentions of Mr. Sridharan on the goods, namely, the petroleum products in question enjoying an exemption and the Petitioners having satisfied all the pre conditions, they are entitled to such exemptions are concerned, they are also capable of being raised, dealt with and considered in proceedings under the BST Act. While challenging the assessment orders, it would be open for the Petitioners to raise the contentions of applicability of the CST Act and equally in the alternative and without prejudice that assuming those contentions are turned down and the BST Act is applicable and attracted, still the particular goods are exempt from tax. The construction and interpretation of the exemption Notification relied upon is an issue which can always be gone into and decided in the proceedings under the Act. Thus, on both counts, namely, whether jurisdictional facts or pre conditions attracting the levy are satisfied and even if these are satisfied and the levy is attracted, the particular goods are exempt from such levy, the matters can be resolved by the forums under the Act. In the absence of any favourable adjudication, there are always the higher courts available to the Petitioners. Therefore, without expressing any opinion on the rival contentions as far as the exemption Notification is concerned, we would leave the Petitioners to pursue their remedies under the Act. | 1 | 24,144 | 3,584 | ### 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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it necessary to answer the larger questions or enter into wider debate. Therefore, we would not pursue the line of reasoning in the Karnataka High Court judgment to consider whether the conclusions reached by the said High Court are to be agreed with or otherwise. We leave such questions as are posed by the Karnataka High Court for being decided in an appropriate case.108. It is now time to note the contentions on the applicability of section 4 of the CST Act, 1956. Here as well, we have noted the contentions of both sides. Mr. Sridharan in his oral submissions as also in the written submissions and additional written submissions emphasised that even if by virtue of section 4 of the CST Act, a sale is treated as having taken place inside the State, the State cannot tax it under the States Sales Tax Act, if the same transaction satisfies section 3 of the CST Act, 1956. A very great emphasis has been laid on several judgments of the Honble Supreme Court by inviting our attention to the Sales of Goods Act, 1930.109. Mr. Sridharan, however, has not disputed the fact that for the purposes of determining the applicability of the two provisions viz. sections 3 and 4 of the CST Act, it will have to be determined firstly whether a sale or purchase of goods in the present case has taken place in the course of Inter-State trade or commerce. Section 3 of the CST Act falling in Chapter II deals with this aspect and enacts a deeming fiction. For that deeming fiction to apply there are two conditions and which are set out in clauses (a) and (b) of section 3 and there are explanations. It is thus upon fulfillment of these conditions and as set out that it could be said to be a sale in the course of Inter-State trade or commerce.110. Section 4 sub-section (1) opens with the words Subject to the provisions contained in Section 3. Section 4 deals with a situation and when is a sale or purchase of goods said to take place outside a State. Therefore, it is subject to section 3 and when a sale or purchase of goods is determined in accordance with sub-section (2) of section 4 to take place inside a State, such sale or purchase shall be deemed to have taken place outside all other States. By sub-section (2) a sale or purchase of goods shall be deemed to take place inside a State if the goods are within the Sate in the case of specific or ascertained goods, at the time the contract of sale is made and in the case of unascertained or future goods, at the time of their appropriation to the contract of sale by the seller or by the buyer, whether assent of the other party is prior or subsequent to such appropriation. Here also there is an explanation.111. If we were to determine the applicability of the provisions referred above we would have to go into the factual aspects and in great details. Concededly, in proceedings under the Bombay Sales Tax Act, 1959 (for short BST Act) particularly of the nature of appeal, the issue of BST Act not being applicable to sales covered by Chapter II to CST Act, 1956, can be raised and considered. It is not as if the Petitioners are remediless. They can rely upon the provisions and satisfy the authorities that since the sale attracts the provisions of the CST Act, 1956, particularly chapter II thereof, the same would not fall within the purview of the relevant provisions of the BST Act, 1959. On the particular sale, therefore, no tax under the BST Act is leviable and recoverable. Such contentions and by projecting the relevant and necessary facts can be raised by the Petitioners and in the event they are not favourably considered or satisfactorily dealt with, they have remedies open and further of carrying the matters in higher forums or courts. Thus, no prejudice is being caused by relegating the Petitioners to these remedies. More so, when these remedies are efficacious. Further, these being mixed questions of law and fact and concerning particular sales, the transactions and dealings between parties to the petition as also others that the writ jurisdiction is not the forum to decide or adjudicate such controversy. Therefore, we would not express any opinion on the rival contentions based on the judgments and legal provisions and leave the parties to raise them in the pending proceedings or the proceedings to be initiated and instituted but before the forums under the BST Act, 1959.112. Similarly, with regard to the other contentions of Mr. Sridharan on the goods, namely, the petroleum products in question enjoying an exemption and the Petitioners having satisfied all the pre conditions, they are entitled to such exemptions are concerned, they are also capable of being raised, dealt with and considered in proceedings under the BST Act. While challenging the assessment orders, it would be open for the Petitioners to raise the contentions of applicability of the CST Act and equally in the alternative and without prejudice that assuming those contentions are turned down and the BST Act is applicable and attracted, still the particular goods are exempt from tax. The construction and interpretation of the exemption Notification relied upon is an issue which can always be gone into and decided in the proceedings under the Act. Thus, on both counts, namely, whether jurisdictional facts or pre conditions attracting the levy are satisfied and even if these are satisfied and the levy is attracted, the particular goods are exempt from such levy, the matters can be resolved by the forums under the Act. In the absence of any favourable adjudication, there are always the higher courts available to the Petitioners. Therefore, without expressing any opinion on the rival contentions as far as the exemption Notification is concerned, we would leave the Petitioners to pursue their remedies under the Act.
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1
### Explanation:
can have no application to the facts and circumstances of the present case. For the afore indicated reasons, we have found that the very goods and which have been transported by the Petitioners via barges and to the vessels stationed in the territorial waters according to it have been obtained within the State of Maharashtra. We have found that substantial part of the transaction and from the stage of acquisition of these goods, paying for them, receiving an indent or order from the shipping lines and further communications have all taken place in Mumbai within the State of Maharashtra. It is these very goods, namely, high speed diesel oil which have been filled in and loaded on to the Petitioners barges at Mallet Bunder Mumbai. These are thus the acts within the State of Maharashtra. It is in these circumstances that we have applied this theory and once it is found to be so applicable, then, where the boundaries of the State end and in relation to waters, what could be the limitation thereof are all matters which need not be considered by us. For this reason, we do not make any further reference to the decision of the US Federal Court in United States vs. State of California 1947 (332) US 19 as also the decision of the Canadian Supreme Court reported as 1967 SCR 792. While it may be true that some of these decisions may make a reference to the taxing power of the State but having found that the ambit and scope of taxing power can be interpreted with the aid of nexus theory and that can be invoked that we do not deem it fit and proper to dwell on this aspect any further.99. It is also then not necessary to make a reference to the judgment of the Honble Supreme Court in the case of Gramaphone Company Limited vs. Union of India 1984 (2) SCC 534. We are also not required then to refer to the principles of international law, particularly as to how a State or a country has been identified.100. For the aforesaid reasons, we also need not refer to the Constituent Assembly debates with reference to the territorial waters and Article 297 of the Constitution of India or Article 366(30) of the Indian Constitution.101. For the very same reasons the definition of the term State as appearing in General Clauses Act, 1897 and the Bombay General Clauses Act,1904 also need not bedo not think that we are required to decide any such controversy. Once we have held that the Assessing Officer could have taken note of the Petitioners transaction and probed and investigated it further so as to bring it to tax also by applying the nexus theory, then, this decision need not detainlearned single Judge took the view that the tug in question was in the State of Karnataka, though in territorial waters which forms the territory of the State, the question as to whether there was transfer of right to use the tug being one of fact the same has to be decided on the basis of the evidence produced by the parties before the second respondent and the same cannot be considered in the Writ Petition. That is how the Writ Petition was dismissed and the appeal was filed.We are of the considered view that it is not necessary to decide such wider questions as are posed by the Karnataka High Court and answer them. For the purpose of our judgment and having reached our conclusions on the theory of nexus or applying the principle of territorial nexus we do not deem it necessary to answer the larger questions or enter into wider debate. Therefore, we would not pursue the line of reasoning in the Karnataka High Court judgment to consider whether the conclusions reached by the said High Court are to be agreed with or otherwise. We leave such questions as are posed by the Karnataka High Court for being decided in an appropriateno prejudice is being caused by relegating the Petitioners to these remedies. More so, when these remedies are efficacious. Further, these being mixed questions of law and fact and concerning particular sales, the transactions and dealings between parties to the petition as also others that the writ jurisdiction is not the forum to decide or adjudicate such controversy. Therefore, we would not express any opinion on the rival contentions based on the judgments and legal provisions and leave the parties to raise them in the pending proceedings or the proceedings to be initiated and instituted but before the forums under the BST Act, 1959.112. Similarly, with regard to the other contentions of Mr. Sridharan on the goods, namely, the petroleum products in question enjoying an exemption and the Petitioners having satisfied all the pre conditions, they are entitled to such exemptions are concerned, they are also capable of being raised, dealt with and considered in proceedings under the BST Act. While challenging the assessment orders, it would be open for the Petitioners to raise the contentions of applicability of the CST Act and equally in the alternative and without prejudice that assuming those contentions are turned down and the BST Act is applicable and attracted, still the particular goods are exempt from tax. The construction and interpretation of the exemption Notification relied upon is an issue which can always be gone into and decided in the proceedings under the Act. Thus, on both counts, namely, whether jurisdictional facts or pre conditions attracting the levy are satisfied and even if these are satisfied and the levy is attracted, the particular goods are exempt from such levy, the matters can be resolved by the forums under the Act. In the absence of any favourable adjudication, there are always the higher courts available to the Petitioners. Therefore, without expressing any opinion on the rival contentions as far as the exemption Notification is concerned, we would leave the Petitioners to pursue their remedies under the Act.
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Ambica Construction Vs. Union of India (UOI) | 1. The only issue that arises for consideration before this Court is, whether the claimant, i.e., the Appellant before this Court - M/s. Ambica Construction, could have been awarded interest pendente lite by the arbitrator. The arbitrator by bis award dated 28.06.1999, besides awarding a sum of Rs. 9,20,694/- to the claimant, held the claimant also entitled to interest pendente lite, at the rate of 15% per annum. The operative part of the award passed by the arbitrator depicting the above position is extracted below:I therefore award a sum of Rs. 9,20, 694.00 in favour of the claimant and against the Respondent. The claimant will also be entitled to interest pendente lite at the rate of 15% per annum and interest on award until recovery at the rate of 15% per annum.The Union of India, namely, the Respondent before this Court, assailed the award passed by the arbitrator in the High Court of Calcutta, by preferring A.P. No. 39 of 1999. A learned single Judge of the High Court, by an order dated 3.8.2001, affirmed the award passed by the arbitrator on 28.6.1999, including the pendente lite interest, extended to the claimant. The relevant portion of the order of the learned single Judge is extracted below:"Apart from that there is no allegation of misconduct against the Arbitrator. There is no impropriety in the matter of procedure or norms of hearing before the Arbitrator. There is hardly any reason for the court to pass an order allowing the application. This application for setting aside the award is dismissed."2. The award dated 28.6.1999, and the order passed by the learned single Judge dated 3.8.2001 were then assailed by the Union of India, before a Division Bench of the High Court, by preferring A.P.O.T. No. 678 of 2001. While disposing of the above intra-court appeal, the High Court accepted the prayer made by the Union of India, and set aside the determination of the arbitrator in awarding interest pendente lite, by observing as under:In respect of award of interest as payment of interest is excluded under Clause 16(2) of the agreement and as no reason was assigned by the learned Arbitrator for awarding interest till then, in our opinion, interest could not be awarded and the award is modified by excluding interest therefrom.In above view of the findings the award stands modified by excluding the award of interest and the appeal is allowed to that extent only.3. The impugned order passed by the High Court dated 17.06.2005, limited to the determination with reference to pendente lite interest, has been assailed by the Appellant, through the instant civil appeal. During the course of hearing, it was not disputed, that the contractual obligation between the parties expressly provided, that interest could not be claimed, either on earnest money or on the security deposit, and even on amounts payable to the claimant. The relevant clause affirming the above position is extracted hereinbelow:"(2) Interest on amounts. No interest will be payable upon the earnest money or the security deposit or amounts payable to the contractor under the contract, but Government Securities deposited in terms of Sub-clause (1) of this clause will repayable with interest accrued thereon."The aforesaid clause has been relied upon by the learned Counsel representing the Union of India to contend, that when interest was not payable even on the principal amount, there was no question of the same being payable during the period the matter remained pending for adjudication. It is therefore apparent, that the learned Counsel for the Respondent, relied upon the contractual obligation contained in the clause, extracted hereinabove, to counter the claim of pendente lite interest and to support the impugned order passed by the High Court.4. The only contention advanced at the hands of the learned Counsel for the Appellant, was based on the judgment of this Court in Union of India v. Ambica Construction (2016) 6 SCC 36 : (AIR 2016 SC 1441 , Para 24), wherein, having examined the legal position declared by this Court, by a Constitution Bench in Irrigation Department, State of Orissa v. G.C. Roy (1992) 1 SCC 508 : (AIR 1992 SC 732 ), it was held as under:34. Thus, our answer to the reference is that if the contract expressly bars the award of interest pendente lite, the same cannot be awarded by the arbitrator. We also make it clear that the bar to award interest on delayed payment by itself will not be readily inferred as express bar to award interest pendente lite by the Arbitral Tribunal, as ouster of power of the arbitrator has to be considered on various relevant aspects referred to in the decisions of this Court, it would be for the Division Bench to consider the case on merits.A perusal of the conclusions drawn by this Court in the above judgment, rendered by a three Judge Division Bench, leaves no room for any doubt, that the bar to award interest on the amounts payable under the contract, would not be sufficient to deny payment of pendente lite interest. In the above view of the matter, we are satisfied, that the clause relied upon by the learned Counsel for the Union of India, to substantiate his contention, that pendente lite interest could not be awarded to the Appellant, was not a valid consideration, for the proposition being canvassed. | 1[ds]A perusal of the conclusions drawn by this Court in the above judgment, rendered by a three Judge Division Bench, leaves no room for any doubt, that the bar to award interest on the amounts payable under the contract, would not be sufficient to deny payment of pendente lite interest. In the above view of the matter, we are satisfied, that the clause relied upon by the learned Counsel for the Union of India, to substantiate his contention, that pendente lite interest could not be awarded to the Appellant, was not a valid consideration, for the proposition being canvassed. | 1 | 1,010 | 115 | ### 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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1. The only issue that arises for consideration before this Court is, whether the claimant, i.e., the Appellant before this Court - M/s. Ambica Construction, could have been awarded interest pendente lite by the arbitrator. The arbitrator by bis award dated 28.06.1999, besides awarding a sum of Rs. 9,20,694/- to the claimant, held the claimant also entitled to interest pendente lite, at the rate of 15% per annum. The operative part of the award passed by the arbitrator depicting the above position is extracted below:I therefore award a sum of Rs. 9,20, 694.00 in favour of the claimant and against the Respondent. The claimant will also be entitled to interest pendente lite at the rate of 15% per annum and interest on award until recovery at the rate of 15% per annum.The Union of India, namely, the Respondent before this Court, assailed the award passed by the arbitrator in the High Court of Calcutta, by preferring A.P. No. 39 of 1999. A learned single Judge of the High Court, by an order dated 3.8.2001, affirmed the award passed by the arbitrator on 28.6.1999, including the pendente lite interest, extended to the claimant. The relevant portion of the order of the learned single Judge is extracted below:"Apart from that there is no allegation of misconduct against the Arbitrator. There is no impropriety in the matter of procedure or norms of hearing before the Arbitrator. There is hardly any reason for the court to pass an order allowing the application. This application for setting aside the award is dismissed."2. The award dated 28.6.1999, and the order passed by the learned single Judge dated 3.8.2001 were then assailed by the Union of India, before a Division Bench of the High Court, by preferring A.P.O.T. No. 678 of 2001. While disposing of the above intra-court appeal, the High Court accepted the prayer made by the Union of India, and set aside the determination of the arbitrator in awarding interest pendente lite, by observing as under:In respect of award of interest as payment of interest is excluded under Clause 16(2) of the agreement and as no reason was assigned by the learned Arbitrator for awarding interest till then, in our opinion, interest could not be awarded and the award is modified by excluding interest therefrom.In above view of the findings the award stands modified by excluding the award of interest and the appeal is allowed to that extent only.3. The impugned order passed by the High Court dated 17.06.2005, limited to the determination with reference to pendente lite interest, has been assailed by the Appellant, through the instant civil appeal. During the course of hearing, it was not disputed, that the contractual obligation between the parties expressly provided, that interest could not be claimed, either on earnest money or on the security deposit, and even on amounts payable to the claimant. The relevant clause affirming the above position is extracted hereinbelow:"(2) Interest on amounts. No interest will be payable upon the earnest money or the security deposit or amounts payable to the contractor under the contract, but Government Securities deposited in terms of Sub-clause (1) of this clause will repayable with interest accrued thereon."The aforesaid clause has been relied upon by the learned Counsel representing the Union of India to contend, that when interest was not payable even on the principal amount, there was no question of the same being payable during the period the matter remained pending for adjudication. It is therefore apparent, that the learned Counsel for the Respondent, relied upon the contractual obligation contained in the clause, extracted hereinabove, to counter the claim of pendente lite interest and to support the impugned order passed by the High Court.4. The only contention advanced at the hands of the learned Counsel for the Appellant, was based on the judgment of this Court in Union of India v. Ambica Construction (2016) 6 SCC 36 : (AIR 2016 SC 1441 , Para 24), wherein, having examined the legal position declared by this Court, by a Constitution Bench in Irrigation Department, State of Orissa v. G.C. Roy (1992) 1 SCC 508 : (AIR 1992 SC 732 ), it was held as under:34. Thus, our answer to the reference is that if the contract expressly bars the award of interest pendente lite, the same cannot be awarded by the arbitrator. We also make it clear that the bar to award interest on delayed payment by itself will not be readily inferred as express bar to award interest pendente lite by the Arbitral Tribunal, as ouster of power of the arbitrator has to be considered on various relevant aspects referred to in the decisions of this Court, it would be for the Division Bench to consider the case on merits.A perusal of the conclusions drawn by this Court in the above judgment, rendered by a three Judge Division Bench, leaves no room for any doubt, that the bar to award interest on the amounts payable under the contract, would not be sufficient to deny payment of pendente lite interest. In the above view of the matter, we are satisfied, that the clause relied upon by the learned Counsel for the Union of India, to substantiate his contention, that pendente lite interest could not be awarded to the Appellant, was not a valid consideration, for the proposition being canvassed.
### Response:
1
### Explanation:
A perusal of the conclusions drawn by this Court in the above judgment, rendered by a three Judge Division Bench, leaves no room for any doubt, that the bar to award interest on the amounts payable under the contract, would not be sufficient to deny payment of pendente lite interest. In the above view of the matter, we are satisfied, that the clause relied upon by the learned Counsel for the Union of India, to substantiate his contention, that pendente lite interest could not be awarded to the Appellant, was not a valid consideration, for the proposition being canvassed.
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Sindhi Education Society Vs. Chief Secretary,Govt.Of Nct Of Delhi&Ors | right of equality enshrined in the provisions of the Constitution. The power is vested in the State to frame regulations, with an object to ensure better organization and development of school education and matters incidental thereto. Such power must operate within its limitation while ensuring that it does not, in any way, dilute or impairs the basic character of linguistic minority. Its right to establish and administer has to be construed liberally to bring it in alignment with the constitutional protections available to such communities. The minority society can hardly be compelled to perform acts or deeds which per se would tantamount to infringement of its right to manage and control. In fact, it would tantamount to imposing impermissible restriction. A school which has been established and granted status of a linguistic minority for years, it will not be proper to stop its grant-in-aid for the reason that it has failed to comply with a condition or restriction which is impermissible in law, particularly, when the teacher appointed or proposed to be appointed by such institution satisfy the laid down criteria and/or eligibility conditions. The minority has an inbuilt right to appoint persons, which in its opinion are better culturally and linguistically compatible to the institution. 65. To frame policy is the domain of the Government. If, as a matter of policy, the Government has decided to implement the reservation policy for upliftment of the socially or otherwise backward classes, then essentially it must do so within the frame work of the Constitution and the laws. The concept of reservation has been provided, primarily, under Article 16 of the Constitution. Therefore, it would be the requirement of law that such policies are framed and enforced within the four corners of law and to achieve the laudable cause of upliftment of a particular section of the society. In regard to the ambit and scope of reservation, this Court in the case of M. Nagaraj v. Union of India [(2006) 8 SCC 212] held as under: "39. Reservation as a concept is very wide. Different people understand reservation to mean different things. One view of reservation as a generic concept is that reservation is an anti-poverty measure. There is a different view which says that reservation is merely providing a right of access and that it is not a right to redressal. Similarly, affirmative action as a generic concept has a different connotation. Some say that reservation is not a part of affirmative action whereas others say that it is a part of affirmative action. 40. Our Constitution has, however, incorporated the word "reservation" in Article 16(4) which word is not there in Article 15(4). Therefore, the word "reservation" as a subject of Article 16(4) is different from the word "reservation" as a general concept. 41. Applying the above test, we have to consider the word "reservation" in the context of Article 16(4) and it is in that context that Article 335 of the Constitution which provides for relaxation of the standards of evaluation has to be seen. We have to go by what the Constitution-framers intended originally and not by general concepts or principles. Therefore, schematic interpretation of the Constitution has to be applied and this is the basis of the working test evolved by Chandrachud, J. in the Election case. 66. Thus, the framework of reservation policy should be such, as to fit in within the constitutional scheme of our democracy. As and when the Government changes its policy decision, it is expected to give valid reasons and act in the larger interest of the entire community rather than a section thereof. In its wisdom and apparently in accordance with law Government had taken a policy decision and issued the circular dated 21st March, 1986 exempting the minority institutions from complying with the requirements of the Rule 64(1)(b) of the DSE Rules. Despite this and judgment of the High Court there was a change of mind by the State that resulted in issuance of the subsequent circular of September, 1989. From the record before us, no reasons have been recorded in support of the decision superseding the circular dated 21st March, 1986. It is a settled canon of administrative jurisprudence that state action, must be supported by some valid reasons and should be upon due application of mind. In the affidavits filed on behalf of the State, nothing in this regard could be pointed out and in fact, none was pointed out during the course of arguments. Absence of reasoning and apparent non-application of mind would give colour of arbitrariness to the state action. This aspect attains greater lucidity in light of the well accepted norm that minority institution cannot stand on the same footing as a non-minority institution. 67. Besides that, State actions should be actio quaelibet it sua via and every discharge of its duties, functions and governance should also be within the constitutional framework. This principle equally applies to the Government while acting in the field of reservation as well. It would not be possible for the Courts to permit the State to impinge upon or violate directly or indirectly the constitutional rights and protections granted to various classes including the minorities. Thus, the State may not be well within its constitutional duty to compel the linguistic minority institution to accept a policy decision, enforcement of which will infringe their fundamental right and/or protection. On the contrary, the minority can validly question such a decision of the State in law. The service in an aided linguistic minority school cannot be construed as a service under the State even with the aid of Article 12 of the Constitution. Resultantly, we have no hesitation in coming to the conclusion that Rule 64(1)(b) cannot be enforced against the linguistic minority school. Having answered this question in favour of the appellant and against the State, we do not consider it necessary to go into the constitutional validity or otherwise of Rule 64(1)(b) of the Rules, which question we leave open. 68. | 1[ds]41. Applying the above test, we have to consider the word "reservation" in the context of Article 16(4) and it is in that context that Article 335 of the Constitution which provides for relaxation of the standards of evaluation has to be seen. We have to go by what the Constitution-framers intended originally and not by general concepts or principles. Therefore, schematic interpretation of the Constitution has to be applied and this is the basis of the working test evolved by Chandrachud, J. in the Electionthe framework of reservation policy should be such, as to fit in within the constitutional scheme of our democracy. As and when the Government changes its policy decision, it is expected to give valid reasons and act in the larger interest of the entire community rather than a section thereof. In its wisdom and apparently in accordance with law Government had taken a policy decision and issued the circular dated 21st March, 1986 exempting the minority institutions from complying with the requirements of the Rule 64(1)(b) of the DSE Rules. Despite this and judgment of the High Court there was a change of mind by the State that resulted in issuance of the subsequent circular of September, 1989. From the record before us, no reasons have been recorded in support of the decision superseding the circular dated 21st March, 1986. It is a settled canon of administrative jurisprudence that state action, must be supported by some valid reasons and should be upon due application of mind. In the affidavits filed on behalf of the State, nothing in this regard could be pointed out and in fact, none was pointed out during the course of arguments. Absence of reasoning and apparent non-application of mind would give colour of arbitrariness to the state action. This aspect attains greater lucidity in light of the well accepted norm that minority institution cannot stand on the same footing as a non-minoritythat, State actions should be actio quaelibet it sua via and every discharge of its duties, functions and governance should also be within the constitutional framework. This principle equally applies to the Government while acting in the field of reservation as well. It would not be possible for the Courts to permit the State to impinge upon or violate directly or indirectly the constitutional rights and protections granted to various classes including the minorities. Thus, the State may not be well within its constitutional duty to compel the linguistic minority institution to accept a policy decision, enforcement of which will infringe their fundamental right and/or protection. On the contrary, the minority can validly question such a decision of the State in law. The service in an aided linguistic minority school cannot be construed asservice under the State even with the aid of Article 12 of the Constitution. Resultantly, we have no hesitation in coming to the conclusion that Rule 64(1)(b) cannot be enforced against the linguistic minority school. Having answered this question in favour of the appellant and against the State, we do not consider it necessary to go into the constitutional validity or otherwise of Rule 64(1)(b) of the Rules, which question we leave open. | 1 | 28,107 | 595 | ### 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:
right of equality enshrined in the provisions of the Constitution. The power is vested in the State to frame regulations, with an object to ensure better organization and development of school education and matters incidental thereto. Such power must operate within its limitation while ensuring that it does not, in any way, dilute or impairs the basic character of linguistic minority. Its right to establish and administer has to be construed liberally to bring it in alignment with the constitutional protections available to such communities. The minority society can hardly be compelled to perform acts or deeds which per se would tantamount to infringement of its right to manage and control. In fact, it would tantamount to imposing impermissible restriction. A school which has been established and granted status of a linguistic minority for years, it will not be proper to stop its grant-in-aid for the reason that it has failed to comply with a condition or restriction which is impermissible in law, particularly, when the teacher appointed or proposed to be appointed by such institution satisfy the laid down criteria and/or eligibility conditions. The minority has an inbuilt right to appoint persons, which in its opinion are better culturally and linguistically compatible to the institution. 65. To frame policy is the domain of the Government. If, as a matter of policy, the Government has decided to implement the reservation policy for upliftment of the socially or otherwise backward classes, then essentially it must do so within the frame work of the Constitution and the laws. The concept of reservation has been provided, primarily, under Article 16 of the Constitution. Therefore, it would be the requirement of law that such policies are framed and enforced within the four corners of law and to achieve the laudable cause of upliftment of a particular section of the society. In regard to the ambit and scope of reservation, this Court in the case of M. Nagaraj v. Union of India [(2006) 8 SCC 212] held as under: "39. Reservation as a concept is very wide. Different people understand reservation to mean different things. One view of reservation as a generic concept is that reservation is an anti-poverty measure. There is a different view which says that reservation is merely providing a right of access and that it is not a right to redressal. Similarly, affirmative action as a generic concept has a different connotation. Some say that reservation is not a part of affirmative action whereas others say that it is a part of affirmative action. 40. Our Constitution has, however, incorporated the word "reservation" in Article 16(4) which word is not there in Article 15(4). Therefore, the word "reservation" as a subject of Article 16(4) is different from the word "reservation" as a general concept. 41. Applying the above test, we have to consider the word "reservation" in the context of Article 16(4) and it is in that context that Article 335 of the Constitution which provides for relaxation of the standards of evaluation has to be seen. We have to go by what the Constitution-framers intended originally and not by general concepts or principles. Therefore, schematic interpretation of the Constitution has to be applied and this is the basis of the working test evolved by Chandrachud, J. in the Election case. 66. Thus, the framework of reservation policy should be such, as to fit in within the constitutional scheme of our democracy. As and when the Government changes its policy decision, it is expected to give valid reasons and act in the larger interest of the entire community rather than a section thereof. In its wisdom and apparently in accordance with law Government had taken a policy decision and issued the circular dated 21st March, 1986 exempting the minority institutions from complying with the requirements of the Rule 64(1)(b) of the DSE Rules. Despite this and judgment of the High Court there was a change of mind by the State that resulted in issuance of the subsequent circular of September, 1989. From the record before us, no reasons have been recorded in support of the decision superseding the circular dated 21st March, 1986. It is a settled canon of administrative jurisprudence that state action, must be supported by some valid reasons and should be upon due application of mind. In the affidavits filed on behalf of the State, nothing in this regard could be pointed out and in fact, none was pointed out during the course of arguments. Absence of reasoning and apparent non-application of mind would give colour of arbitrariness to the state action. This aspect attains greater lucidity in light of the well accepted norm that minority institution cannot stand on the same footing as a non-minority institution. 67. Besides that, State actions should be actio quaelibet it sua via and every discharge of its duties, functions and governance should also be within the constitutional framework. This principle equally applies to the Government while acting in the field of reservation as well. It would not be possible for the Courts to permit the State to impinge upon or violate directly or indirectly the constitutional rights and protections granted to various classes including the minorities. Thus, the State may not be well within its constitutional duty to compel the linguistic minority institution to accept a policy decision, enforcement of which will infringe their fundamental right and/or protection. On the contrary, the minority can validly question such a decision of the State in law. The service in an aided linguistic minority school cannot be construed as a service under the State even with the aid of Article 12 of the Constitution. Resultantly, we have no hesitation in coming to the conclusion that Rule 64(1)(b) cannot be enforced against the linguistic minority school. Having answered this question in favour of the appellant and against the State, we do not consider it necessary to go into the constitutional validity or otherwise of Rule 64(1)(b) of the Rules, which question we leave open. 68.
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1
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41. Applying the above test, we have to consider the word "reservation" in the context of Article 16(4) and it is in that context that Article 335 of the Constitution which provides for relaxation of the standards of evaluation has to be seen. We have to go by what the Constitution-framers intended originally and not by general concepts or principles. Therefore, schematic interpretation of the Constitution has to be applied and this is the basis of the working test evolved by Chandrachud, J. in the Electionthe framework of reservation policy should be such, as to fit in within the constitutional scheme of our democracy. As and when the Government changes its policy decision, it is expected to give valid reasons and act in the larger interest of the entire community rather than a section thereof. In its wisdom and apparently in accordance with law Government had taken a policy decision and issued the circular dated 21st March, 1986 exempting the minority institutions from complying with the requirements of the Rule 64(1)(b) of the DSE Rules. Despite this and judgment of the High Court there was a change of mind by the State that resulted in issuance of the subsequent circular of September, 1989. From the record before us, no reasons have been recorded in support of the decision superseding the circular dated 21st March, 1986. It is a settled canon of administrative jurisprudence that state action, must be supported by some valid reasons and should be upon due application of mind. In the affidavits filed on behalf of the State, nothing in this regard could be pointed out and in fact, none was pointed out during the course of arguments. Absence of reasoning and apparent non-application of mind would give colour of arbitrariness to the state action. This aspect attains greater lucidity in light of the well accepted norm that minority institution cannot stand on the same footing as a non-minoritythat, State actions should be actio quaelibet it sua via and every discharge of its duties, functions and governance should also be within the constitutional framework. This principle equally applies to the Government while acting in the field of reservation as well. It would not be possible for the Courts to permit the State to impinge upon or violate directly or indirectly the constitutional rights and protections granted to various classes including the minorities. Thus, the State may not be well within its constitutional duty to compel the linguistic minority institution to accept a policy decision, enforcement of which will infringe their fundamental right and/or protection. On the contrary, the minority can validly question such a decision of the State in law. The service in an aided linguistic minority school cannot be construed asservice under the State even with the aid of Article 12 of the Constitution. Resultantly, we have no hesitation in coming to the conclusion that Rule 64(1)(b) cannot be enforced against the linguistic minority school. Having answered this question in favour of the appellant and against the State, we do not consider it necessary to go into the constitutional validity or otherwise of Rule 64(1)(b) of the Rules, which question we leave open.
|
Binny Ltd Vs. Their Workmen | Government to extend the period of eight months in accordance with the provisions contained therein. Section 34 provides that the Act except as otherwise provided in the section, shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in the terms of any Award, agreement, settlement or contract of service made before May 29, 1965. 15. We have referred to some of the relevant provisions of the Act. From a perusal of the scheme of the Act, it is clear that the bonus for a particular accounting year will have to be computed in accordance with the provisions of the Act on the basis of the gross-profits which are determined at the close of the accounting year. The Act itself provides as to how the gross-profits are to be calculated and the available and allocable surplus arrived at. The Act also provides the outer limit, the period within which bonus has to be paid. It further gives the employer a right to deduct any amount that may have been paid during the accounting year as part of the bonus payable under the Act. 16. It will be seen from the scheme of the Act that the claim for bonus can be made only after the close of the accounting year and in accordance with the provisions of the Act. The gross-profits can be calculated only at the end of the accounting year and the available and allocable surplus can also be worked out only at the end of the accounting year. There is no question of an employer computing the gross-profits, available and allocable surplus in the middle of an accounting year or at any time before the close of the relevant accounting year.The direction given by the Tribunal really amounts to the employer having to make two computations at the end of each half-year. No doubt, the Tribunal has given a direction to the effect that any amount paid for the first half-year can be deducted when the final bonus is paid at the end of the accounting year. Even without any such consideration being shown by the Tribunal allowing an employer to so deduct, Section 17 itself clearly gives such a right to an employer.We are not impressed with the contention of Mr. Puri that as there is no prohibition in the Act against an employer making the payment by way of bonus at the end of a half-year, the direction given by the Tribunal can be sustained. 17. Mr. Puri referred us particularly to the provisions contained in Section 17 of the Act. He pointed out that though a time limit is fixed by Section 19, the Act itself as is evident from Section 17, clearly envisages payment of bonus at the end of each half-year. We are not inclined to accept this contention of Mr. Puri. The direction given by the Tribunal making it obligatory on the Management to make half yearly payment of bonus, apart from being opposed to the scheme of the Act, also runs counter to the provisions of Section 19. Whether it is the minimum bonus of 4 per cent, under Section 19 or the maximum bonus of 20 per cent, under Section 11, they have to be paid, as is made clear by Section 19, only within the period mentioned therein. It may be that an employer voluntarily pays amount during the accounting year by way of part bonus which he is entitled to take into account and adjust when making final payment at the close of the accounting year. It is one thing to say that an employer can make voluntary payment, but it is a different thing for the Tribunal to give a direction to that effect. 18. Section 17 on which reliance is placed by Mr. Puri is as follows :"Where in any accounting year- (a) an employer has paid any puja bonus or other customary bonus on an employee; or (b) an employer has paid a part of the bonus payable under this Act to an employee before the date on which such bonus becomes payable, then the employer shall be entitled to deduct the amount of bonus so paid from the amount of bonus payable by him to the employee under this Act in respect of that accounting year and the employee shall be entitled to receive only the balance." 19. Clause (a) has no application as the Tribunal has categorically held that there is no question of any payment by way of puja bonus or other customary bonus. Even then, if any such bonus has been paid, the employer is entitled to deduct the same from the amount of bonus payable under the Act. Clause (b) is an enabling section in favour of the employer in that it visualises a situation or contingency where he may have paid during the accounting year a part of bonus payable under the Act "before the date on which such bonus becomes payable."If an employer has paid any amount during an accounting year by way of part of the bonus, he is entitled to deduct the same from the final amounts that may be payable under the Act. That provision does not give a right to an employee to claim payment of bonus even by way of part payment during the currency of the accounting year. If so, the Tribunal has also no jurisdiction to give a direction to an employer to pay bonus at the end of each half-year. 20. In this case, it is no doubt, seen that the appellant has been paying bonus at the end of each half-year. But the Tribunal has found that such payment has not become a condition of service.Therefore by the mere fact that the appellant has been making payments on previous occasions every half-yearly, does not confer a right on the employee to have such payments by way of bonus in the same manner even after the Act came into force. | 1[ds]13. We are not inclined to accept the contentions of Mr. Puri. We have already referred to the findings of the Tribunal to the effect that the amount that was paid by the appellant as bonus at the end of each half-year was on the basis of the profits earned by it. The Tribunal has rejected the claim of the unions that the payment of bonus, in the manner claimed by them, was not a condition of service and that the payment had nothing to do with any custom or festival. These findings have not been and in fact could not be challenged by the respondents. There is also no controversy that payment of bonus for the accounting year 1965 is governed by the provisions of the Act. If so,the question is whether the directions given by the Tribunal and referred to above, can be supported by the provisions of the ActWe are not inclined to accept this contention of Mr. Puri. The direction given by the Tribunal making it obligatory on the Management to make half yearly payment of bonus, apart from being opposed to the scheme of the Act, also runs counter to the provisions of Section 19. Whether it is the minimum bonus of 4 per cent, under Section 19 or the maximum bonus of 20 per cent, under Section 11, they have to be paid, as is made clear by Section 19, only within the period mentioned therein. It may be that an employer voluntarily pays amount during the accounting year by way of part bonus which he is entitled to take into account and adjust when making final payment at the close of the accounting year. It is one thing to say that an employer can make voluntary payment, but it is a different thing for the Tribunal to give a direction to that effect20. In this case, it is no doubt, seen that the appellant has been paying bonus at the end of each half-year. But the Tribunal has found that such payment has not become a condition of service.Therefore by the mere fact that the appellant has been making payments on previous occasions every half-yearly, does not confer a right on the employee to have such payments by way of bonus in the same manner even after the Act came into force26. We will first take up the question regarding the claim of the appellant for return on Reserves. In Ex. M-1, the appellant has claimed a sum of Rs. 17833.00 as 4 per cent, return of Rs. 44468315.00, being the amount employed in business. Similar by in Ex. M-2, for the year 1963, it had claimed Rs. 1877518.00, being 4 per cent. return on Reserves on Rs. 46937947.00, employed in the business. The Unions contested the claim of the appellant on the ground that they are not entitled to any return on Reserves32. We may straightway say that these decisions do not assist the appellant. In the case before us it is not necessary to do any guesswork as the appellant wants us to do. The appellant has filed statements showing how it has calculated the amount of reserve utilised as working capital and we have to find out whether the calculations made by it are correct. In fact, Mr. Malhotra has not been able to point out from the balance sheets, as to what amount, according to the appellant, can be considered to have been used as working capital. In the two decisions, relied on by him, the company concerned was able to refer to the figures in the balance sheets from which this Court was able to draw a conclusion regarding the approximate amount that would have been utilised as working capital. The position before us is entirely different34. We have already pointed out that the Tribunal has held that the working capital cannot include fixed assets nor the capital works in progress as it represents the funds required for day-to-day running of the company. The Tribunal has further held that the appellant is entitled to deduct investments, interest accrued on investments, etc., which have been shown in Exhibits M-1 (a) and M-2 (a) on the ground that they must be considered to be the amounts available to be used as working capital. These findings have not been challenged by the learned counsel for the appellant. The appellant has also filed details of reserves employed in the business during the years ended 31st December, 1962 and 1963 as shown in Exhibits M-1 (b) and M-2 (b) respectively. Even there the appellant has deducted the share capital before giving final figures35. Therefore, the contention of Mr. Malhotra that the Tribunal has committed a mistake in calculating the amount of Reserve used as working capital for these two years, cannot be accepted. If so, it follows that the amount fixed by the Tribunal as return at 4 per cent on Reserves used as working capital for these two years, is correct38.It must be noted that Rehabilitation Reserve is a substantial item which goes to reduce the available surplus and as a result affects the right of the employees to receive the bonus. Hence the employer will have to place all relevant materials and the Tribunal will have to scrutinise them carefully and be satisfied that the claim is justified.It is no doubt true that it is but proper in the larger interest of the industry as well as the employees that proper rehabilitation reserve should be built up taking into consideration the increase in price in plant and machinery which has to be replaced at a future date and by determination of multiplier and its divisor.It is also clear from the decisions of this Court that if a company has no scheme for rehabilitation, then, of course, its claim on that head must be rejected (vide Azam Jahi Mills Ltd. v. Their Workmen, (1967) 2 Lab LJ 18 = (AIR 1967 SC 1222 ). Further, since it is the employer who seeks replacement costs, it is for him to satisfy the Tribunal as to what will be the overall cost of replacement and in doing so, it is he who has to discharge this burden by adducing proper evidence and giving other party an opportunity to test the correctness of that evidence by cross-examination (vide National Engineering Industries Ltd. v. Its Workmen, (1968) 1 SCR 779 = (AIR 1968 SC 538 )39.It is also now well settled that in determining the claim of the employer for rehabilitation, 2 factors are essential to be ascertained, namely, (1) the multiplier, and that has to be done by reference to the purchase price of the machinery and the price which has to be paid for rehabilitation or replacement; and (2) the determination of the diviser and that has to be done by deciding the probable life of the machinery(vide Honorary Secy., South India Millowners Association and others v. Secy., Coimbatore District Textiles Workers Union, (1962) Supp 2 SCR 926 = (AIR 1962 SC 1221 ) and Messrs. Gannon Dunkerley and Co. Ltd. v. Their Workmen, AIR 1971 SC 2567 41. So far as the age of the machinery is concerned, it is no doubt true that in (1962) Supp 2 SCR 926 = (AIR 1962 SC 1221 ) this Court, after a reference to the evidence adduced, confirmed the findings of the Tribunal that the estimated life of the textile machinery in question should be taken to be 25 years, but in the said decision itself it is observed as follows:"We are not prepared to accept either argument because, in our opinion, the life of the machinery in every case has to be determined in the light of evidence adduced by the parties."But it is unnecessary for us to pursue this aspect further as we are disallowing the entire claim for rehabilitation46. It is clear from the above answers of the witness that there is no material placed before the Tribunal by the appellant from which the multiplier and divisor can be properly worked out for the purpose of considering the claim for rehabilitation. In fact, the Mill Manager, M.W. 2 has stated that the company has floated a debenture for 1 1/2 crore for buying new machinery. This clearly shows that the appellant had no scheme for rehabilitation and that explains the reason why it had not made any provision for rehabilitation48. It is no doubt true that these amounts are shown in the schedules to the balance sheets for the years concerned. Admittedly, there is no such claim made in the written statement filed by the appellant before the Tribunal. When the unions were contesting the claim of the appellant on the ground that it has no scheme for rehabilitation and that it has not spent any amount by way of replacement of old machinery, it was the duty of the appellant to have made a proper claim and it should have adduced evidence regarding that aspect before the Tribunal.Mere production of balance sheet and profit and loss accounts by themselves will not entitle the appellant to sustain its claim for rehabilitation49. For all the reasons given above, it is clear that the Tribunal was justified in holding that the appellant has not been able to make out its claim for making provision for rehabilitation. In this view the Tribunal was justified in rejecting this claim of the appellant50. We may also state that the Tribunal is also of the view that the appellant has large reserves with which it can meet rehabilitation expenses of the machinery. In this connection the Tribunal has also referred to the evidence on the side of the appellant, that even according to the appellant rehabilitation will have to be completed only within eight years from 1962 and that only a sum of rupees eighty lakhs will be required for each year. On this reasoning the Tribunal has held that this amount of rupees eighty lakhs can be easily met with from the large reserves available with the appellant. It is not necessary for us to consider this aspect further because we have already agreed with the findings of the Tribunal that the appellant has no scheme for rehabilitation and that it has not placed any satisfactory evidence before the Tribunal in support of its claime Tribunal, after rejecting the appellants claim for rehabilitation and also allowing return on reserves used as working capital in the manner, already referred to, had arrived at the available surplus for the year 1962 in the sum of Rs. 26,35,914 and for the year 1963 at Rs. 49,04,987. The appellant filed a statement Exhibit M-4 showing the amount of bonus already paid for the years 1962 and 1963 to all employees drawing a total of Rs. 500 and less per mensem. From that statement it is seen that for the year 1962 it had paid a sum of Rs. 14,41,455 and for the year 1963 a sum of Rs. 19,60,795. On the basis of the available surplus worked out for the years 1962 and 1963, the balance available surplus after deducting bonus already paid55. From the available surplus of Rs. 49,04,987 in 1963, the workmen will get a sum of Rs. 29,42,192 for that year which works out more or less about 60 per cent of the available surplus, falling short by a sum of Rs. 80057. So far as 1963 is concerned, the available surplus as found by the Tribunal is Rs. 49,04,987. 60 per cent of this available surplus, to which the workmen will be entitled to will be Rs. 29,42,992. On the other hand, the total amount that the workmen will get as per the award including the amount already paid by the appellant as bonus is Rs. 29,42,192. The appellant will have to pay only an additional sum of Rs. 800 to make up 60 per cent. There is no appeal by the unions and therefore the bonus awarded for the year 1963 does not require any interference58.In allocating the available surplus between the company and the workmen, it has been held by this Court that it will be equitable if roughly 60 per cent of the surplus is distributed as bonus to the workmen and the Company is left with the remaining 40 per cent. The Company will get in addition to this 40 per cent, the benefit of the income-tax rebate on the 60 per cent bonus payable to the workmen (vide AIR 1971 SC 2567 ). We have adopted the same principle in the case on hand. | 1 | 3,361 | 2,288 | ### 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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Government to extend the period of eight months in accordance with the provisions contained therein. Section 34 provides that the Act except as otherwise provided in the section, shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in the terms of any Award, agreement, settlement or contract of service made before May 29, 1965. 15. We have referred to some of the relevant provisions of the Act. From a perusal of the scheme of the Act, it is clear that the bonus for a particular accounting year will have to be computed in accordance with the provisions of the Act on the basis of the gross-profits which are determined at the close of the accounting year. The Act itself provides as to how the gross-profits are to be calculated and the available and allocable surplus arrived at. The Act also provides the outer limit, the period within which bonus has to be paid. It further gives the employer a right to deduct any amount that may have been paid during the accounting year as part of the bonus payable under the Act. 16. It will be seen from the scheme of the Act that the claim for bonus can be made only after the close of the accounting year and in accordance with the provisions of the Act. The gross-profits can be calculated only at the end of the accounting year and the available and allocable surplus can also be worked out only at the end of the accounting year. There is no question of an employer computing the gross-profits, available and allocable surplus in the middle of an accounting year or at any time before the close of the relevant accounting year.The direction given by the Tribunal really amounts to the employer having to make two computations at the end of each half-year. No doubt, the Tribunal has given a direction to the effect that any amount paid for the first half-year can be deducted when the final bonus is paid at the end of the accounting year. Even without any such consideration being shown by the Tribunal allowing an employer to so deduct, Section 17 itself clearly gives such a right to an employer.We are not impressed with the contention of Mr. Puri that as there is no prohibition in the Act against an employer making the payment by way of bonus at the end of a half-year, the direction given by the Tribunal can be sustained. 17. Mr. Puri referred us particularly to the provisions contained in Section 17 of the Act. He pointed out that though a time limit is fixed by Section 19, the Act itself as is evident from Section 17, clearly envisages payment of bonus at the end of each half-year. We are not inclined to accept this contention of Mr. Puri. The direction given by the Tribunal making it obligatory on the Management to make half yearly payment of bonus, apart from being opposed to the scheme of the Act, also runs counter to the provisions of Section 19. Whether it is the minimum bonus of 4 per cent, under Section 19 or the maximum bonus of 20 per cent, under Section 11, they have to be paid, as is made clear by Section 19, only within the period mentioned therein. It may be that an employer voluntarily pays amount during the accounting year by way of part bonus which he is entitled to take into account and adjust when making final payment at the close of the accounting year. It is one thing to say that an employer can make voluntary payment, but it is a different thing for the Tribunal to give a direction to that effect. 18. Section 17 on which reliance is placed by Mr. Puri is as follows :"Where in any accounting year- (a) an employer has paid any puja bonus or other customary bonus on an employee; or (b) an employer has paid a part of the bonus payable under this Act to an employee before the date on which such bonus becomes payable, then the employer shall be entitled to deduct the amount of bonus so paid from the amount of bonus payable by him to the employee under this Act in respect of that accounting year and the employee shall be entitled to receive only the balance." 19. Clause (a) has no application as the Tribunal has categorically held that there is no question of any payment by way of puja bonus or other customary bonus. Even then, if any such bonus has been paid, the employer is entitled to deduct the same from the amount of bonus payable under the Act. Clause (b) is an enabling section in favour of the employer in that it visualises a situation or contingency where he may have paid during the accounting year a part of bonus payable under the Act "before the date on which such bonus becomes payable."If an employer has paid any amount during an accounting year by way of part of the bonus, he is entitled to deduct the same from the final amounts that may be payable under the Act. That provision does not give a right to an employee to claim payment of bonus even by way of part payment during the currency of the accounting year. If so, the Tribunal has also no jurisdiction to give a direction to an employer to pay bonus at the end of each half-year. 20. In this case, it is no doubt, seen that the appellant has been paying bonus at the end of each half-year. But the Tribunal has found that such payment has not become a condition of service.Therefore by the mere fact that the appellant has been making payments on previous occasions every half-yearly, does not confer a right on the employee to have such payments by way of bonus in the same manner even after the Act came into force.
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1
### Explanation:
and that has to be done by reference to the purchase price of the machinery and the price which has to be paid for rehabilitation or replacement; and (2) the determination of the diviser and that has to be done by deciding the probable life of the machinery(vide Honorary Secy., South India Millowners Association and others v. Secy., Coimbatore District Textiles Workers Union, (1962) Supp 2 SCR 926 = (AIR 1962 SC 1221 ) and Messrs. Gannon Dunkerley and Co. Ltd. v. Their Workmen, AIR 1971 SC 2567 41. So far as the age of the machinery is concerned, it is no doubt true that in (1962) Supp 2 SCR 926 = (AIR 1962 SC 1221 ) this Court, after a reference to the evidence adduced, confirmed the findings of the Tribunal that the estimated life of the textile machinery in question should be taken to be 25 years, but in the said decision itself it is observed as follows:"We are not prepared to accept either argument because, in our opinion, the life of the machinery in every case has to be determined in the light of evidence adduced by the parties."But it is unnecessary for us to pursue this aspect further as we are disallowing the entire claim for rehabilitation46. It is clear from the above answers of the witness that there is no material placed before the Tribunal by the appellant from which the multiplier and divisor can be properly worked out for the purpose of considering the claim for rehabilitation. In fact, the Mill Manager, M.W. 2 has stated that the company has floated a debenture for 1 1/2 crore for buying new machinery. This clearly shows that the appellant had no scheme for rehabilitation and that explains the reason why it had not made any provision for rehabilitation48. It is no doubt true that these amounts are shown in the schedules to the balance sheets for the years concerned. Admittedly, there is no such claim made in the written statement filed by the appellant before the Tribunal. When the unions were contesting the claim of the appellant on the ground that it has no scheme for rehabilitation and that it has not spent any amount by way of replacement of old machinery, it was the duty of the appellant to have made a proper claim and it should have adduced evidence regarding that aspect before the Tribunal.Mere production of balance sheet and profit and loss accounts by themselves will not entitle the appellant to sustain its claim for rehabilitation49. For all the reasons given above, it is clear that the Tribunal was justified in holding that the appellant has not been able to make out its claim for making provision for rehabilitation. In this view the Tribunal was justified in rejecting this claim of the appellant50. We may also state that the Tribunal is also of the view that the appellant has large reserves with which it can meet rehabilitation expenses of the machinery. In this connection the Tribunal has also referred to the evidence on the side of the appellant, that even according to the appellant rehabilitation will have to be completed only within eight years from 1962 and that only a sum of rupees eighty lakhs will be required for each year. On this reasoning the Tribunal has held that this amount of rupees eighty lakhs can be easily met with from the large reserves available with the appellant. It is not necessary for us to consider this aspect further because we have already agreed with the findings of the Tribunal that the appellant has no scheme for rehabilitation and that it has not placed any satisfactory evidence before the Tribunal in support of its claime Tribunal, after rejecting the appellants claim for rehabilitation and also allowing return on reserves used as working capital in the manner, already referred to, had arrived at the available surplus for the year 1962 in the sum of Rs. 26,35,914 and for the year 1963 at Rs. 49,04,987. The appellant filed a statement Exhibit M-4 showing the amount of bonus already paid for the years 1962 and 1963 to all employees drawing a total of Rs. 500 and less per mensem. From that statement it is seen that for the year 1962 it had paid a sum of Rs. 14,41,455 and for the year 1963 a sum of Rs. 19,60,795. On the basis of the available surplus worked out for the years 1962 and 1963, the balance available surplus after deducting bonus already paid55. From the available surplus of Rs. 49,04,987 in 1963, the workmen will get a sum of Rs. 29,42,192 for that year which works out more or less about 60 per cent of the available surplus, falling short by a sum of Rs. 80057. So far as 1963 is concerned, the available surplus as found by the Tribunal is Rs. 49,04,987. 60 per cent of this available surplus, to which the workmen will be entitled to will be Rs. 29,42,992. On the other hand, the total amount that the workmen will get as per the award including the amount already paid by the appellant as bonus is Rs. 29,42,192. The appellant will have to pay only an additional sum of Rs. 800 to make up 60 per cent. There is no appeal by the unions and therefore the bonus awarded for the year 1963 does not require any interference58.In allocating the available surplus between the company and the workmen, it has been held by this Court that it will be equitable if roughly 60 per cent of the surplus is distributed as bonus to the workmen and the Company is left with the remaining 40 per cent. The Company will get in addition to this 40 per cent, the benefit of the income-tax rebate on the 60 per cent bonus payable to the workmen (vide AIR 1971 SC 2567 ). We have adopted the same principle in the case on hand.
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INDERJIT SINGH SODHI AND OTHERS Vs. THE CHAIRMAN, PUNJAB STATE ELECTRICITY BOARD AND ANOTHER | deemed to have been appointed by direct recruitment. This legal fiction is limited. It is applicable only to those employees who have been promoted in conformity with the provisions contained in Clause 4. Thus, the employees who had passed both Parts (A) and (B) of the AMIE examination and were promoted against 9% posts reserved for that class were fictionally treated as direct recruits. Thus, it clearly stipulates that only those Assistant Engineers who were either directly recruited or had acquired the requisite qualifications prescribed for direct recruitment were chosen to be granted higher scale if they had been promoted against the post falling within the quota of 9% of the cadre strength of the said post. 23. The 1990 Order contemplates that it is to be followed as per regulation which provides that only such persons as have been promoted under Regulation 7(a)(ii) read with Regulation 10(4) shall be treated as direct recruits. In other words, it does not apply to the promotees irrespective of their academic qualifications nor can they be treated on a par with the direct recruits. There was a purpose for treating them so, otherwise, it would have the effect of violating the constitutional mandate contained in Articles 14 and 16 of the Constitution of India, on the premise that unequals have been treated as equals. It is with that intention, to avoid criticism and future litigation that such persons who possessed qualifications for direct recruitment and could be promoted against the posts falling vacant, would become entitled to claim the benefit. Since Respondent 1 did not fall in this category, obviously, he was not entitled to the higher scale. 24. Thus, there appears to be no illegality committed by the Board in rejecting Respondent 1s representation. So, in our considered opinion, the High Court has clearly erred in setting aside and quashing the same. 25. The critical examination of the impugned judgment passed by the Division Bench of the High Court completely defeats primary purpose of the 1990 Order and provisions applicable to the employees of the Board. No doubt, it is true that the 1990 Order was issued only with an intention to remove the stagnation but this would not give blanket or absolute right to any employee to be entitled to higher pay scale even if he does not fulfil prerequisite qualifications for holding the higher post. In other words, if he possesses the required qualifications but is unable to get the higher post on account of non-availability of such post, then only he can be categorised as suffering from stagnation as per Order of 23-4-1990. 19. The First and Second Circulars of the Punjab State Electricity Board were examined by this Court, wherein, it was observed that the Second Circular is applicable only in respect of employees appointed by way of direct recruitment. The benefit would not be extended to the promoted employees. This Court found that the legal fiction is limited in respect of the employees promoted under Regulation 7(a)(i) read with Regulation 10(4). It is applicable to only those employees who have been promoted in conformity with the provisions contained in Clause 4 of the Regulation 10 of the Regulations which deal with promotion of the employees who have passed both parts (A) and (B) of A.M.I.E. Examination and were promoted against 9% posts reserved for that Class of direct recruitment. 20. Shri Krishan Kumar Vij, in the reported judgment, was not possessing A.M.I.E. qualification and thus was never appointed in terms of Regulation 7(a)(i) read with Regulation 10.4 of the Regulations. In the present appeals, there is no assertion that any of the appellants have qualified both parts of A.M.I.E. Examination which is treated to be equivalent to the Engineering Degree. The appellants being only Diploma holders were promoted under Regulation 7(a)(ii) read with Regulation 10.4 of the Regulations. They had the opportunity to compete for direct recruitment after 12 years of service, which they never availed or remained unsuccessful. The appellants would have been entitled to claim parity with Kripal Singh Mangat and Raj Kumar Garg only if they were qualified and promoted against the posts reserved for those employees by direct recruitment. Consequently, the appellants cannot claim time bound promotion after completion of 9/16 years at par with Kirpal Singh Mangat and Raj Kumar Garg. 21. The claim of the appellants of discrimination and arbitrariness on the basis of time bound promotional scale granted to Kirpal Singh Mangat and Raj Kumar Garg is not found to be sustainable. It has been categorically admitted by the appellants that the said persons were appointed by way of direct recruitment under Regulation 7(a)(i) as provided under Regulation 9 of the Regulations. The appellants, on the contrary, have been promoted to the post of Assistant Engineer in their term as per their seniority in the cadre of Junior Engineer. Thus, Second Circular which would be applicable to Kirpal Singh Mangat and Raj Kumar Garg would not apply to the appellants as they are instead covered by the First Circular. 22. In terms of the First and Second Circulars, the employees of the Board who have not earned promotion within 9 years from their initial recruitment are entitled to time bound promotional scale. If they have been promoted within the initial 9 years, the next promotion cannot be granted to them after completion of 3 years. 23. Therefore, the High Court in the impugned judgment was correct in law holding that in view of the judgment in Krishan Kumar Vij, the appellants are not entitled to time bound promotional scale on the basis of parity in the other cases. 24. The argument that the appellants are entitled to promotion scale after 23 years was not the case setup either in the writ petition or even in the present appeals. Such an argument has in fact been raised for the first time in the written submissions. We find that such a factual argument cannot be permitted to be raised at this stage. | 0[ds]16. We do not find any merit in the argument raised by Mr. Patwalia. The claim of the appellants was based upon the First Circular for 9/16 years time bound promotion scale though the appellants have referred to the Second Circular in para 18 of the writ petition. The Second Circular was not even annexed with the writ petition, however the same has been annexed by two other appellants Surinder Kumar Pathak and R.K. Arora. There is no challenge to the legality and validity of the Second Circular. Still further, the appellants have never claimed that there should be equal pay being members of the same cadre. The claim of the appellants was for time bound promotional scale after completion of 9-16 years service only at par with Kirpal Singh Mangat and Raj Kumar Garg.17. We find that the appellants were promoted within 9 or 16 years from their initial appointment, therefore, they are not entitled to time bound promotional scale. Kirpal Singh Mangat and Raj Kumar Garg were appointed by direct recruitment as Assistant Engineer (Civil), whereas the appellants have been promoted to the post of Assistant Engineer (Civil). Hence, the Second Circular would not be applicable to them. The promotee employees are entitled to time bound promotion scale in terms of the First Circular only. Hence, the appellants are not entitled to claim any parity with Kirpal Singh Mangat and Raj Kumar Garg.18. We find that some other employees have been granted benefit by virtue of the orders passed by the High Court. However, the principle laid down in the aforesaid judgments run counter to the subsequent judgment of this Court in Krishan Kumar Vij. The Special Leave Petition in many of these cases were dismissed but the such dismissals would not be a binding precedent for this Court. This argument was also raised and examined in Krishan Kumar Vij wherein this Court relied upon the judgment of this Court reported as Kunhayammed & Ors v. State Of Kerala (2000) 6 SCC 359 . Therefore, the dismissal of special leave petitions is of no consequence on the question of law. The following was held in Krishan Kumar Vij:22. We have already mentioned hereinabove with regard to Clause 2 of the 1990 Order read with Regulation 9 which restricts the benefit only to directly recruited Assistant Engineers/Assistant Executive Engineers, meaning thereby that one must possess the requisite qualification as prescribed under the Regulations, then only the benefit would accrue to the employee, not otherwise. The Note appended thereto clearly stipulates that even those employees who were promoted under Regulation 7(a)(ii) read with Regulation 10(4) shall be deemed to have been appointed by direct recruitment. This legal fiction is limited. It is applicable only to those employees who have been promoted in conformity with the provisions contained in Clause 4. Thus, the employees who had passed both Parts (A) and (B) of the AMIE examination and were promoted against 9% posts reserved for that class were fictionally treated as direct recruits. Thus, it clearly stipulates that only those Assistant Engineers who were either directly recruited or had acquired the requisite qualifications prescribed for direct recruitment were chosen to be granted higher scale if they had been promoted against the post falling within the quota of 9% of the cadre strength of the said post.23. The 1990 Order contemplates that it is to be followed as per regulation which provides that only such persons as have been promoted under Regulation 7(a)(ii) read with Regulation 10(4) shall be treated as direct recruits. In other words, it does not apply to the promotees irrespective of their academic qualifications nor can they be treated on a par with the direct recruits. There was a purpose for treating them so, otherwise, it would have the effect of violating the constitutional mandate contained in Articles 14 and 16 of the Constitution of India, on the premise that unequals have been treated as equals. It is with that intention, to avoid criticism and future litigation that such persons who possessed qualifications for direct recruitment and could be promoted against the posts falling vacant, would become entitled to claim the benefit. Since Respondent 1 did not fall in this category, obviously, he was not entitled to the higher scale.24. Thus, there appears to be no illegality committed by the Board in rejecting Respondent 1s representation. So, in our considered opinion, the High Court has clearly erred in setting aside and quashing the same.25. The critical examination of the impugned judgment passed by the Division Bench of the High Court completely defeats primary purpose of the 1990 Order and provisions applicable to the employees of the Board. No doubt, it is true that the 1990 Order was issued only with an intention to remove the stagnation but this would not give blanket or absolute right to any employee to be entitled to higher pay scale even if he does not fulfil prerequisite qualifications for holding the higher post. In other words, if he possesses the required qualifications but is unable to get the higher post on account of non-availability of such post, then only he can be categorised as suffering from stagnation as per Order of 23-4-1990.19. The First and Second Circulars of the Punjab State Electricity Board were examined by this Court, wherein, it was observed that the Second Circular is applicable only in respect of employees appointed by way of direct recruitment. The benefit would not be extended to the promoted employees. This Court found that the legal fiction is limited in respect of the employees promoted under Regulation 7(a)(i) read with Regulation 10(4). It is applicable to only those employees who have been promoted in conformity with the provisions contained in Clause 4 of the Regulation 10 of the Regulations which deal with promotion of the employees who have passed both parts (A) and (B) of A.M.I.E. Examination and were promoted against 9% posts reserved for that Class of direct recruitment.20. Shri Krishan Kumar Vij, in the reported judgment, was not possessing A.M.I.E. qualification and thus was never appointed in terms of Regulation 7(a)(i) read with Regulation 10.4 of the Regulations. In the present appeals, there is no assertion that any of the appellants have qualified both parts of A.M.I.E. Examination which is treated to be equivalent to the Engineering Degree. The appellants being only Diploma holders were promoted under Regulation 7(a)(ii) read with Regulation 10.4 of the Regulations. They had the opportunity to compete for direct recruitment after 12 years of service, which they never availed or remained unsuccessful. The appellants would have been entitled to claim parity with Kripal Singh Mangat and Raj Kumar Garg only if they were qualified and promoted against the posts reserved for those employees by direct recruitment. Consequently, the appellants cannot claim time bound promotion after completion of 9/16 years at par with Kirpal Singh Mangat and Raj Kumar Garg.21. The claim of the appellants of discrimination and arbitrariness on the basis of time bound promotional scale granted to Kirpal Singh Mangat and Raj Kumar Garg is not found to be sustainable. It has been categorically admitted by the appellants that the said persons were appointed by way of direct recruitment under Regulation 7(a)(i) as provided under Regulation 9 of the Regulations. The appellants, on the contrary, have been promoted to the post of Assistant Engineer in their term as per their seniority in the cadre of Junior Engineer. Thus, Second Circular which would be applicable to Kirpal Singh Mangat and Raj Kumar Garg would not apply to the appellants as they are instead covered by the First Circular.22. In terms of the First and Second Circulars, the employees of the Board who have not earned promotion within 9 years from their initial recruitment are entitled to time bound promotional scale. If they have been promoted within the initial 9 years, the next promotion cannot be granted to them after completion of 3 years.23. Therefore, the High Court in the impugned judgment was correct in law holding that in view of the judgment in Krishan Kumar Vij, the appellants are not entitled to time bound promotional scale on the basis of parity in the other cases.24. The argument that the appellants are entitled to promotion scale after 23 years was not the case setup either in the writ petition or even in the present appeals. Such an argument has in fact been raised for the first time in the written submissions. We find that such a factual argument cannot be permitted to be raised at this stage. | 0 | 5,186 | 1,595 | ### Instruction:
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deemed to have been appointed by direct recruitment. This legal fiction is limited. It is applicable only to those employees who have been promoted in conformity with the provisions contained in Clause 4. Thus, the employees who had passed both Parts (A) and (B) of the AMIE examination and were promoted against 9% posts reserved for that class were fictionally treated as direct recruits. Thus, it clearly stipulates that only those Assistant Engineers who were either directly recruited or had acquired the requisite qualifications prescribed for direct recruitment were chosen to be granted higher scale if they had been promoted against the post falling within the quota of 9% of the cadre strength of the said post. 23. The 1990 Order contemplates that it is to be followed as per regulation which provides that only such persons as have been promoted under Regulation 7(a)(ii) read with Regulation 10(4) shall be treated as direct recruits. In other words, it does not apply to the promotees irrespective of their academic qualifications nor can they be treated on a par with the direct recruits. There was a purpose for treating them so, otherwise, it would have the effect of violating the constitutional mandate contained in Articles 14 and 16 of the Constitution of India, on the premise that unequals have been treated as equals. It is with that intention, to avoid criticism and future litigation that such persons who possessed qualifications for direct recruitment and could be promoted against the posts falling vacant, would become entitled to claim the benefit. Since Respondent 1 did not fall in this category, obviously, he was not entitled to the higher scale. 24. Thus, there appears to be no illegality committed by the Board in rejecting Respondent 1s representation. So, in our considered opinion, the High Court has clearly erred in setting aside and quashing the same. 25. The critical examination of the impugned judgment passed by the Division Bench of the High Court completely defeats primary purpose of the 1990 Order and provisions applicable to the employees of the Board. No doubt, it is true that the 1990 Order was issued only with an intention to remove the stagnation but this would not give blanket or absolute right to any employee to be entitled to higher pay scale even if he does not fulfil prerequisite qualifications for holding the higher post. In other words, if he possesses the required qualifications but is unable to get the higher post on account of non-availability of such post, then only he can be categorised as suffering from stagnation as per Order of 23-4-1990. 19. The First and Second Circulars of the Punjab State Electricity Board were examined by this Court, wherein, it was observed that the Second Circular is applicable only in respect of employees appointed by way of direct recruitment. The benefit would not be extended to the promoted employees. This Court found that the legal fiction is limited in respect of the employees promoted under Regulation 7(a)(i) read with Regulation 10(4). It is applicable to only those employees who have been promoted in conformity with the provisions contained in Clause 4 of the Regulation 10 of the Regulations which deal with promotion of the employees who have passed both parts (A) and (B) of A.M.I.E. Examination and were promoted against 9% posts reserved for that Class of direct recruitment. 20. Shri Krishan Kumar Vij, in the reported judgment, was not possessing A.M.I.E. qualification and thus was never appointed in terms of Regulation 7(a)(i) read with Regulation 10.4 of the Regulations. In the present appeals, there is no assertion that any of the appellants have qualified both parts of A.M.I.E. Examination which is treated to be equivalent to the Engineering Degree. The appellants being only Diploma holders were promoted under Regulation 7(a)(ii) read with Regulation 10.4 of the Regulations. They had the opportunity to compete for direct recruitment after 12 years of service, which they never availed or remained unsuccessful. The appellants would have been entitled to claim parity with Kripal Singh Mangat and Raj Kumar Garg only if they were qualified and promoted against the posts reserved for those employees by direct recruitment. Consequently, the appellants cannot claim time bound promotion after completion of 9/16 years at par with Kirpal Singh Mangat and Raj Kumar Garg. 21. The claim of the appellants of discrimination and arbitrariness on the basis of time bound promotional scale granted to Kirpal Singh Mangat and Raj Kumar Garg is not found to be sustainable. It has been categorically admitted by the appellants that the said persons were appointed by way of direct recruitment under Regulation 7(a)(i) as provided under Regulation 9 of the Regulations. The appellants, on the contrary, have been promoted to the post of Assistant Engineer in their term as per their seniority in the cadre of Junior Engineer. Thus, Second Circular which would be applicable to Kirpal Singh Mangat and Raj Kumar Garg would not apply to the appellants as they are instead covered by the First Circular. 22. In terms of the First and Second Circulars, the employees of the Board who have not earned promotion within 9 years from their initial recruitment are entitled to time bound promotional scale. If they have been promoted within the initial 9 years, the next promotion cannot be granted to them after completion of 3 years. 23. Therefore, the High Court in the impugned judgment was correct in law holding that in view of the judgment in Krishan Kumar Vij, the appellants are not entitled to time bound promotional scale on the basis of parity in the other cases. 24. The argument that the appellants are entitled to promotion scale after 23 years was not the case setup either in the writ petition or even in the present appeals. Such an argument has in fact been raised for the first time in the written submissions. We find that such a factual argument cannot be permitted to be raised at this stage.
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under Regulation 7(a)(ii) read with Regulation 10(4) shall be deemed to have been appointed by direct recruitment. This legal fiction is limited. It is applicable only to those employees who have been promoted in conformity with the provisions contained in Clause 4. Thus, the employees who had passed both Parts (A) and (B) of the AMIE examination and were promoted against 9% posts reserved for that class were fictionally treated as direct recruits. Thus, it clearly stipulates that only those Assistant Engineers who were either directly recruited or had acquired the requisite qualifications prescribed for direct recruitment were chosen to be granted higher scale if they had been promoted against the post falling within the quota of 9% of the cadre strength of the said post.23. The 1990 Order contemplates that it is to be followed as per regulation which provides that only such persons as have been promoted under Regulation 7(a)(ii) read with Regulation 10(4) shall be treated as direct recruits. In other words, it does not apply to the promotees irrespective of their academic qualifications nor can they be treated on a par with the direct recruits. There was a purpose for treating them so, otherwise, it would have the effect of violating the constitutional mandate contained in Articles 14 and 16 of the Constitution of India, on the premise that unequals have been treated as equals. It is with that intention, to avoid criticism and future litigation that such persons who possessed qualifications for direct recruitment and could be promoted against the posts falling vacant, would become entitled to claim the benefit. Since Respondent 1 did not fall in this category, obviously, he was not entitled to the higher scale.24. Thus, there appears to be no illegality committed by the Board in rejecting Respondent 1s representation. So, in our considered opinion, the High Court has clearly erred in setting aside and quashing the same.25. The critical examination of the impugned judgment passed by the Division Bench of the High Court completely defeats primary purpose of the 1990 Order and provisions applicable to the employees of the Board. No doubt, it is true that the 1990 Order was issued only with an intention to remove the stagnation but this would not give blanket or absolute right to any employee to be entitled to higher pay scale even if he does not fulfil prerequisite qualifications for holding the higher post. In other words, if he possesses the required qualifications but is unable to get the higher post on account of non-availability of such post, then only he can be categorised as suffering from stagnation as per Order of 23-4-1990.19. The First and Second Circulars of the Punjab State Electricity Board were examined by this Court, wherein, it was observed that the Second Circular is applicable only in respect of employees appointed by way of direct recruitment. The benefit would not be extended to the promoted employees. This Court found that the legal fiction is limited in respect of the employees promoted under Regulation 7(a)(i) read with Regulation 10(4). It is applicable to only those employees who have been promoted in conformity with the provisions contained in Clause 4 of the Regulation 10 of the Regulations which deal with promotion of the employees who have passed both parts (A) and (B) of A.M.I.E. Examination and were promoted against 9% posts reserved for that Class of direct recruitment.20. Shri Krishan Kumar Vij, in the reported judgment, was not possessing A.M.I.E. qualification and thus was never appointed in terms of Regulation 7(a)(i) read with Regulation 10.4 of the Regulations. In the present appeals, there is no assertion that any of the appellants have qualified both parts of A.M.I.E. Examination which is treated to be equivalent to the Engineering Degree. The appellants being only Diploma holders were promoted under Regulation 7(a)(ii) read with Regulation 10.4 of the Regulations. They had the opportunity to compete for direct recruitment after 12 years of service, which they never availed or remained unsuccessful. The appellants would have been entitled to claim parity with Kripal Singh Mangat and Raj Kumar Garg only if they were qualified and promoted against the posts reserved for those employees by direct recruitment. Consequently, the appellants cannot claim time bound promotion after completion of 9/16 years at par with Kirpal Singh Mangat and Raj Kumar Garg.21. The claim of the appellants of discrimination and arbitrariness on the basis of time bound promotional scale granted to Kirpal Singh Mangat and Raj Kumar Garg is not found to be sustainable. It has been categorically admitted by the appellants that the said persons were appointed by way of direct recruitment under Regulation 7(a)(i) as provided under Regulation 9 of the Regulations. The appellants, on the contrary, have been promoted to the post of Assistant Engineer in their term as per their seniority in the cadre of Junior Engineer. Thus, Second Circular which would be applicable to Kirpal Singh Mangat and Raj Kumar Garg would not apply to the appellants as they are instead covered by the First Circular.22. In terms of the First and Second Circulars, the employees of the Board who have not earned promotion within 9 years from their initial recruitment are entitled to time bound promotional scale. If they have been promoted within the initial 9 years, the next promotion cannot be granted to them after completion of 3 years.23. Therefore, the High Court in the impugned judgment was correct in law holding that in view of the judgment in Krishan Kumar Vij, the appellants are not entitled to time bound promotional scale on the basis of parity in the other cases.24. The argument that the appellants are entitled to promotion scale after 23 years was not the case setup either in the writ petition or even in the present appeals. Such an argument has in fact been raised for the first time in the written submissions. We find that such a factual argument cannot be permitted to be raised at this stage.
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POSTMAN VENGAISAMY AND OTHERS Vs. STATE REPRESENTED BY INSPECTOR OF POLICE AND OTHERS | the evidence of such witnesses, their statements cannot be relied upon. Reliance is placed upon the judgments in Ram Laxman vs. State of Rajasthan, (2016) 12 SCC 389 to contend that the statements of Irulandi (PW-1) and Ramar (PW-2) cannot be split to grant benefit to some co-accused while maintaining conviction of others when all accused stand on the same footing and deserve parity. Learned counsel also relied on Najabhai Desurbhai Wagh vs. Valerabhai Deganbhai Vagh & Ors, (2017) 3 SCC 261 to submit that the prosecution has failed to prove common object to commit a murder on the basis of evidence led, therefore, conviction of the appellants with the aid of Section 149 is not tenable. Reliance is also placed upon in the case of Mahendran v. State of Tamil Nadu, (2019) 5 SCC 67. In the said case, it was held that though the maxim falsus in uno, falsus in omnibus has no application in India but the rule of caution is required to be applied while examining the statement of witnesses whose part statement is not found to be truthful. 8. We have heard learned counsel for the parties and find no merit in the present appeal. 9. Irulandi (PW-1) has deposed that, on April 26, 2003, he along with his father Chinnaperiaiyah and Ramar (PW-2) were on their way to Anaikulam, when they were surrounded by accused persons who were led by Thalaiyaripandi (A-ll) and armed with swords. Thalaiyaripandi (A-ll) exhorted other accused to cut the deceased in pieces as planned. It is thereafter, Vengaisami (A-l) chopped up right elbow of his father but he was immobilised by Karnan (A-2), Krishnamurthi (A-3) and Thirumeni (A-4) whereas Lingam (A-5), Poovalingam (A-6), Kesavan (A-7) and Ramalingam (A-8) immobilised Ramar (PW-2). Rathinettamatiyan (A-9) chopped the right hand wrist of his father by sword, Kotti @ Kotteswaran (A-10) chopped the right side forehead of his father, Thalaiyaripandi (A-ll) hit left side rib of his father, whereas Neelamegavannan (A-12) hit in the right side of the back side of his father. Chinnaperiaiyah died at the spot. Irulandi (PW-1) and Ramar (PW-2) escaped from the clutches of the accused, then Arjunan (A-13) chopped the left hand below elbow of Irulandi (PW-1) whereas Poovalingam (A-6) hit left shoulder of Ramar (PW-2). Though, the argument of learned counsel for the appellants is that Irulandi (PW-1) and Ramar (PW-2) are introduced witnesses but the lengthy cross-examination conducted on them does not lead to any such inference. Dr. Jayakumar (PW-13) has examined Irulandi (PW-1) and Ramar (PW-2) on April 26, 2003, the same day when Chinnaperiyayya lost his life. Chinnaperiyayya, whose postmortem report is Ex.P-28, shows that multiple injuries were noticed by the Doctor. Such injuries corroborate the oral testimony of Irulandi (PW-1) and Ramar (PW-2). Ex.P-29 is the report in respect of injuries suffered by Irulandi (PW-1) measuring 6xlx1/2 cm near left hand. He has also provided medical report (Ex.P-30) on Ramar. He stated that Ramar has sustained the following injuries: 1. Wound on the left bullocks. The pain was stated by patient swelling on the right fact. Pain felt not welling to get treated as influent treated as out patient. 2. At the right ankle pray was taken and found that right Kibula Bone was broken the said injury was termed as severe injury. Certificate issued the same is accident report Ex.P.30. 10. Baskaran (PW-4), in his statement, also confirmed the incident of April 8, 2003. He stated that he, along with Chinnaperiaiyah, were beaten up by the accused. He further stated that he sustained injuries on the face below both the eyes. The statement of Rathi(PW-5), wife of Baskaran (PW-4), is also to the same effect. 11. The oral testimony of material witnesses Irulandi (PW-1) and Ramar (PW-2) is corroborated by the medical evidence, whereas the motive of taking life of the deceased is made out from the incident which happened on April 8, 2003. Therefore, the findings recorded by the courts below are plausible findings in law. 12. In Ram Laxmans case, the Court found that the High Court disbelieved with witness in respect of the other accused but believed such witness in respect of the other accused. That is not a case of some omissions or contradictions of statement but the credibility of witness itself was doubted. Such is not in the present case. Some contradictions arise on account of perception of the witnesses and due to passage of time. But the creditability of the witnesses has not been shaken. Therefore, such witnesses are reliable and credit worthy witnesses. 13. In Najabhai Desurbhai Wagh case, this Court was examining the judgment of acquittal recorded by the High Court when the High Court maintained sentence against only one accused. The appeal by the complainant was against the acquittal of the accused. This Court held that armed with weapons like axe, iron pipe and spear, the common object to commit an offence can be inferred from the weapons used and the violent manner of the attack but the question examined was whether they can be attributed with the knowledge about murder. The present is not such a case. Here,on the exhortation of Thalaiyaripandi (A-ll), the accused who were armed with sword had raised murdered assault on the deceased and also injured Irulandi (PW-1) and Ramar (PW-2). Since there is a history of earlier attack on the deceased on April 8, 2003, accused formed an unlawful assembly with a view to take life of Chinnaperiaiyah. The judgments referred to are not applicable to the facts of the present case. It is cumulative effect of the evidence led by the prosecution which determines whether unlawful assembly had a common object to commit culpable homicide amounting to murder. 14. In Mahendrans case, reiterating the well-established principle that follows falsus in uno, falsus in omnibus has no application in India and is not a rule of law. Therefore, even if some part of the statement is found to be unproved, entire testimony of witnesses cannot be rejected. | 0[ds]8. We have heard learned counsel for the parties and find no merit in the present appeal.9. Irulandi (PW-1) has deposed that, on April 26, 2003, he along with his father Chinnaperiaiyah and Ramar (PW-2) were on their way to Anaikulam, when they were surrounded by accused persons who were led by Thalaiyaripandi (A-ll) and armed with swords. Thalaiyaripandi (A-ll) exhorted other accused to cut the deceased in pieces as planned. It is thereafter, Vengaisami (A-l) chopped up right elbow of his father but he was immobilised by Karnan (A-2), Krishnamurthi (A-3) and Thirumeni (A-4) whereas Lingam (A-5), Poovalingam (A-6), Kesavan (A-7) and Ramalingam (A-8) immobilised Ramar (PW-2). Rathinettamatiyan (A-9) chopped the right hand wrist of his father by sword, Kotti @ Kotteswaran (A-10) chopped the right side forehead of his father, Thalaiyaripandi (A-ll) hit left side rib of his father, whereas Neelamegavannan (A-12) hit in the right side of the back side of his father.Chinnaperiaiyah died at the spot. Irulandi (PW-1) and Ramar (PW-2) escaped from the clutches of the accused, then Arjunan (A-13) chopped the left hand below elbow of Irulandi (PW-1) whereas Poovalingam (A-6) hit left shoulder of Ramar (PW-2). Though, the argument of learned counsel for the appellants is that Irulandi (PW-1) and Ramar (PW-2) are introduced witnesses but the lengthy cross-examination conducted on them does not lead to any such inference. Dr. Jayakumar (PW-13) has examined Irulandi (PW-1) and Ramar (PW-2) on April 26, 2003, the same day when Chinnaperiyayya lost his life. Chinnaperiyayya, whose postmortem report is Ex.P-28, shows that multiple injuries were noticed by the Doctor. Such injuries corroborate the oral testimony of Irulandi (PW-1) and Ramar (PW-2). Ex.P-29 is the report in respect of injuries suffered by Irulandi (PW-1) measuring 6xlx1/2 cm near left hand.11. The oral testimony of material witnesses Irulandi (PW-1) and Ramar (PW-2) is corroborated by the medical evidence, whereas the motive of taking life of the deceased is made out from the incident which happened on April 8, 2003. Therefore, the findings recorded by the courts below are plausible findings in law.12. In Ram Laxmans case, the Court found that the High Court disbelieved with witness in respect of the other accused but believed such witness in respect of the other accused. That is not a case of some omissions or contradictions of statement but the credibility of witness itself was doubted. Such is not in the present case. Some contradictions arise on account of perception of the witnesses and due to passage of time. But the creditability of the witnesses has not been shaken. Therefore, such witnesses are reliable and credit worthy witnesses.13. In Najabhai Desurbhai Wagh case, this Court was examining the judgment of acquittal recorded by the High Court when the High Court maintained sentence against only one accused. The appeal by the complainant was against the acquittal of the accused. This Court held that armed with weapons like axe, iron pipe and spear, the common object to commit an offence can be inferred from the weapons used and the violent manner of the attack but the question examined was whether they can be attributed with the knowledge about murder. The present is not such a case. Here,on the exhortation of Thalaiyaripandi (A-ll), the accused who were armed with sword had raised murdered assault on the deceased and also injured Irulandi (PW-1) and Ramar (PW-2). Since there is a history of earlier attack on the deceased on April 8, 2003, accused formed an unlawful assembly with a view to take life of Chinnaperiaiyah. The judgments referred to are not applicable to the facts of the present case. It is cumulative effect of the evidence led by the prosecution which determines whether unlawful assembly had a common object to commit culpable homicide amounting to murder.14. In Mahendrans case, reiterating the well-established principle that follows falsus in uno, falsus in omnibus has no application in India and is not a rule of law. Therefore, even if some part of the statement is found to be unproved, entire testimony of witnesses cannot be rejected. | 0 | 2,340 | 817 | ### 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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the evidence of such witnesses, their statements cannot be relied upon. Reliance is placed upon the judgments in Ram Laxman vs. State of Rajasthan, (2016) 12 SCC 389 to contend that the statements of Irulandi (PW-1) and Ramar (PW-2) cannot be split to grant benefit to some co-accused while maintaining conviction of others when all accused stand on the same footing and deserve parity. Learned counsel also relied on Najabhai Desurbhai Wagh vs. Valerabhai Deganbhai Vagh & Ors, (2017) 3 SCC 261 to submit that the prosecution has failed to prove common object to commit a murder on the basis of evidence led, therefore, conviction of the appellants with the aid of Section 149 is not tenable. Reliance is also placed upon in the case of Mahendran v. State of Tamil Nadu, (2019) 5 SCC 67. In the said case, it was held that though the maxim falsus in uno, falsus in omnibus has no application in India but the rule of caution is required to be applied while examining the statement of witnesses whose part statement is not found to be truthful. 8. We have heard learned counsel for the parties and find no merit in the present appeal. 9. Irulandi (PW-1) has deposed that, on April 26, 2003, he along with his father Chinnaperiaiyah and Ramar (PW-2) were on their way to Anaikulam, when they were surrounded by accused persons who were led by Thalaiyaripandi (A-ll) and armed with swords. Thalaiyaripandi (A-ll) exhorted other accused to cut the deceased in pieces as planned. It is thereafter, Vengaisami (A-l) chopped up right elbow of his father but he was immobilised by Karnan (A-2), Krishnamurthi (A-3) and Thirumeni (A-4) whereas Lingam (A-5), Poovalingam (A-6), Kesavan (A-7) and Ramalingam (A-8) immobilised Ramar (PW-2). Rathinettamatiyan (A-9) chopped the right hand wrist of his father by sword, Kotti @ Kotteswaran (A-10) chopped the right side forehead of his father, Thalaiyaripandi (A-ll) hit left side rib of his father, whereas Neelamegavannan (A-12) hit in the right side of the back side of his father. Chinnaperiaiyah died at the spot. Irulandi (PW-1) and Ramar (PW-2) escaped from the clutches of the accused, then Arjunan (A-13) chopped the left hand below elbow of Irulandi (PW-1) whereas Poovalingam (A-6) hit left shoulder of Ramar (PW-2). Though, the argument of learned counsel for the appellants is that Irulandi (PW-1) and Ramar (PW-2) are introduced witnesses but the lengthy cross-examination conducted on them does not lead to any such inference. Dr. Jayakumar (PW-13) has examined Irulandi (PW-1) and Ramar (PW-2) on April 26, 2003, the same day when Chinnaperiyayya lost his life. Chinnaperiyayya, whose postmortem report is Ex.P-28, shows that multiple injuries were noticed by the Doctor. Such injuries corroborate the oral testimony of Irulandi (PW-1) and Ramar (PW-2). Ex.P-29 is the report in respect of injuries suffered by Irulandi (PW-1) measuring 6xlx1/2 cm near left hand. He has also provided medical report (Ex.P-30) on Ramar. He stated that Ramar has sustained the following injuries: 1. Wound on the left bullocks. The pain was stated by patient swelling on the right fact. Pain felt not welling to get treated as influent treated as out patient. 2. At the right ankle pray was taken and found that right Kibula Bone was broken the said injury was termed as severe injury. Certificate issued the same is accident report Ex.P.30. 10. Baskaran (PW-4), in his statement, also confirmed the incident of April 8, 2003. He stated that he, along with Chinnaperiaiyah, were beaten up by the accused. He further stated that he sustained injuries on the face below both the eyes. The statement of Rathi(PW-5), wife of Baskaran (PW-4), is also to the same effect. 11. The oral testimony of material witnesses Irulandi (PW-1) and Ramar (PW-2) is corroborated by the medical evidence, whereas the motive of taking life of the deceased is made out from the incident which happened on April 8, 2003. Therefore, the findings recorded by the courts below are plausible findings in law. 12. In Ram Laxmans case, the Court found that the High Court disbelieved with witness in respect of the other accused but believed such witness in respect of the other accused. That is not a case of some omissions or contradictions of statement but the credibility of witness itself was doubted. Such is not in the present case. Some contradictions arise on account of perception of the witnesses and due to passage of time. But the creditability of the witnesses has not been shaken. Therefore, such witnesses are reliable and credit worthy witnesses. 13. In Najabhai Desurbhai Wagh case, this Court was examining the judgment of acquittal recorded by the High Court when the High Court maintained sentence against only one accused. The appeal by the complainant was against the acquittal of the accused. This Court held that armed with weapons like axe, iron pipe and spear, the common object to commit an offence can be inferred from the weapons used and the violent manner of the attack but the question examined was whether they can be attributed with the knowledge about murder. The present is not such a case. Here,on the exhortation of Thalaiyaripandi (A-ll), the accused who were armed with sword had raised murdered assault on the deceased and also injured Irulandi (PW-1) and Ramar (PW-2). Since there is a history of earlier attack on the deceased on April 8, 2003, accused formed an unlawful assembly with a view to take life of Chinnaperiaiyah. The judgments referred to are not applicable to the facts of the present case. It is cumulative effect of the evidence led by the prosecution which determines whether unlawful assembly had a common object to commit culpable homicide amounting to murder. 14. In Mahendrans case, reiterating the well-established principle that follows falsus in uno, falsus in omnibus has no application in India and is not a rule of law. Therefore, even if some part of the statement is found to be unproved, entire testimony of witnesses cannot be rejected.
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### Explanation:
8. We have heard learned counsel for the parties and find no merit in the present appeal.9. Irulandi (PW-1) has deposed that, on April 26, 2003, he along with his father Chinnaperiaiyah and Ramar (PW-2) were on their way to Anaikulam, when they were surrounded by accused persons who were led by Thalaiyaripandi (A-ll) and armed with swords. Thalaiyaripandi (A-ll) exhorted other accused to cut the deceased in pieces as planned. It is thereafter, Vengaisami (A-l) chopped up right elbow of his father but he was immobilised by Karnan (A-2), Krishnamurthi (A-3) and Thirumeni (A-4) whereas Lingam (A-5), Poovalingam (A-6), Kesavan (A-7) and Ramalingam (A-8) immobilised Ramar (PW-2). Rathinettamatiyan (A-9) chopped the right hand wrist of his father by sword, Kotti @ Kotteswaran (A-10) chopped the right side forehead of his father, Thalaiyaripandi (A-ll) hit left side rib of his father, whereas Neelamegavannan (A-12) hit in the right side of the back side of his father.Chinnaperiaiyah died at the spot. Irulandi (PW-1) and Ramar (PW-2) escaped from the clutches of the accused, then Arjunan (A-13) chopped the left hand below elbow of Irulandi (PW-1) whereas Poovalingam (A-6) hit left shoulder of Ramar (PW-2). Though, the argument of learned counsel for the appellants is that Irulandi (PW-1) and Ramar (PW-2) are introduced witnesses but the lengthy cross-examination conducted on them does not lead to any such inference. Dr. Jayakumar (PW-13) has examined Irulandi (PW-1) and Ramar (PW-2) on April 26, 2003, the same day when Chinnaperiyayya lost his life. Chinnaperiyayya, whose postmortem report is Ex.P-28, shows that multiple injuries were noticed by the Doctor. Such injuries corroborate the oral testimony of Irulandi (PW-1) and Ramar (PW-2). Ex.P-29 is the report in respect of injuries suffered by Irulandi (PW-1) measuring 6xlx1/2 cm near left hand.11. The oral testimony of material witnesses Irulandi (PW-1) and Ramar (PW-2) is corroborated by the medical evidence, whereas the motive of taking life of the deceased is made out from the incident which happened on April 8, 2003. Therefore, the findings recorded by the courts below are plausible findings in law.12. In Ram Laxmans case, the Court found that the High Court disbelieved with witness in respect of the other accused but believed such witness in respect of the other accused. That is not a case of some omissions or contradictions of statement but the credibility of witness itself was doubted. Such is not in the present case. Some contradictions arise on account of perception of the witnesses and due to passage of time. But the creditability of the witnesses has not been shaken. Therefore, such witnesses are reliable and credit worthy witnesses.13. In Najabhai Desurbhai Wagh case, this Court was examining the judgment of acquittal recorded by the High Court when the High Court maintained sentence against only one accused. The appeal by the complainant was against the acquittal of the accused. This Court held that armed with weapons like axe, iron pipe and spear, the common object to commit an offence can be inferred from the weapons used and the violent manner of the attack but the question examined was whether they can be attributed with the knowledge about murder. The present is not such a case. Here,on the exhortation of Thalaiyaripandi (A-ll), the accused who were armed with sword had raised murdered assault on the deceased and also injured Irulandi (PW-1) and Ramar (PW-2). Since there is a history of earlier attack on the deceased on April 8, 2003, accused formed an unlawful assembly with a view to take life of Chinnaperiaiyah. The judgments referred to are not applicable to the facts of the present case. It is cumulative effect of the evidence led by the prosecution which determines whether unlawful assembly had a common object to commit culpable homicide amounting to murder.14. In Mahendrans case, reiterating the well-established principle that follows falsus in uno, falsus in omnibus has no application in India and is not a rule of law. Therefore, even if some part of the statement is found to be unproved, entire testimony of witnesses cannot be rejected.
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Mangulal Chunilal Vs. Manilal Maganlal & Anr | of anything done or omitted to be done by them, respectively, in their official capacity;(h) with the approval of the Standing Committee, admit or compromise any claim, suit or legal proceeding brought against the Corporation or against the Commissioner or a municipal officer or servant, in respect of anything done or omitted to be done as aforesaid;(i) with the like approval, institute and prosecute any suit or withdraw from or compromise any suit or any claim other than a claim of the description specified in clause (f) which has been instituted or made in the name of the Corporation or the Commissioner."7. It is not disputed that S. 69 enable the Commissioner to delegate powers, duties or functions conferred or imposed upon him or vested in him to a municipal officer. The Commissioner having delegated his powers to the Deputy Health Officer, the question arises whether it is the Deputy Health Officer or the Licence Inspector who should take proceedings against the accused within the meaning of S. 481 (1) (a). It is not disputed that under sub-cls (b), (c), (d), (f), (g) (h) and (i) of S. 481 (1), the various actions contemplated in these sub-clauses would have to be taken by the delegate himself. In other words, he would have to institute a suit within sub-clause (i) and admit or compromise any claim, suit or legal proceeding within sub-clause (h), but it is said that the word "take" has been deliberately used in sub-cls (a) and (e) to enable the delegate to entrust initiation of proceedings to another person because otherwise it would he impossible to carry on the administration of, the municipality. It is said that thousands of complaints have to be filed and it would be casting undue burden on the Deputy Health Officer to sign all the complaints. We are not impressed by this argument.It is true that the word "take" has various meanings but no dictionary or authority has been placed before us to show that the word can mean "cause to be taken". It seems to us that the word "take" was used because if the word "institute" had been used it may not have been appropriate to cover all proceedings that can be taken under S. 481(1) (a).Bavdekar, J., had observed in 55 Bom LR 377 at p. 379 - (AIR 1953 Bom 365 at p.366):"One can see easily why the words take" are used. It was desired to combine in one clause the two powers, the power to launch proceedings and the power to withdraw proceedings, and if the words "withdraw from proceedings" were used, it was not easy to use the words "order proceedings to be taken" in combination with the words withdraw proceedings."8. We are unable to accept this as correct, Bavdekar, J., further observed :"If the Legislature had in such a case really wanted that the complaint should actully be either of the Commissioner or an officer empowered by him, it would have been perfectly easy to use the words which find place in several Acts, for example, except upon a complaint in writing of the Commissioner or an officer to whom he has delegated his powers."9.It is true that it the language suggested by him had been used no dispute would have arisen. But we are not free to interpret the words "take proceedings" to mean "order proceedings to be taken" because the word "take" is an English word and we can only ascribe to it a meaning which it bears in the English language.10. The learned counsel for the appellant says that since the decision of the Bombay High Court in 55 Bom LR 377 = (AIR 1953 Bom 365 ) no other decision has taken any other view and we should not disturb the view which has prevailed since that decision. We are unable to accept this contention.This is not a case where a series of decisions have taken a particular view and that view has been widely accepted and various rights have accrued to parties acting on that view.A person who files a complaint under the Act must show that he has the authority to file that complaint and that authority cannot be conferred upon him by an erroneous interpretation long acquiesced in.This Court held in Ballavdas Agarwala v. J. C. Chakravarty, 1960-2 SCR 739 = (AIR 1980 SC 576) that a complaint under the Calcutta Municipal Act, 1923, could only be filed by the authorities mentioned therein and not by an ordinary citizen. Similarly, here it seems to us that only the authorities mentioned in S. 481, read with S. 69, can launch proceedings against person charged with offences under the Act or the rules regulations or by laws made, under it.This Court noticed the decision of the Bombay High Court in Manilal Jethalals case, 55 Bom LR 377 = (AIR 1953 Bom 365 ) in 1960-2 SCR 739 (AIR 1960 SC 576 ) and observed :"The decision proceeded, however, on a somewhat wide meaning given to the words "take proceeding" that part of the decision, as to the correctness of which we say nothing, does not concern us here, because the words used in S. 537 of the Calcutta Municipal Act are different."We may mention that Hidayattullah, J., Observed at p. 764 (of SCR) = (at p. 586 of AIR) in Ballavdas Agarwalas case :"An officer of the municipality must himself perform his duties created by statute or bye-law. He cannot delegate them to others, unless expressly authorised in this behalf. The Act does not so empower the officers to delegate their functions in their turn, and thus an officer to whom the power is delegated by the Chairman must perform them himself."11. We agree with the above observations of Hidayatullah, J. On this point there does not seem to have been any difference of opinion between him and the majority; ho differed only on the question whether on the facts in that case there was in fact a delegation or not. | 0[ds]7. It is not disputed that S. 69 enable the Commissioner to delegate powers, duties or functions conferred or imposed upon him or vested in him to a municipalis not disputed that under sub-cls (b), (c), (d), (f), (g) (h) and (i) of S. 481 (1), the various actions contemplated in these sub-clauses would have to be taken by the delegate himself. In other words, he would have to institute a suit within sub-clause (i) and admit or compromise any claim, suit or legal proceeding within sub-clause (h), but it is said that the word "take" has been deliberately used in sub-cls (a) and (e) to enable the delegate to entrust initiation of proceedings to another person because otherwise it would he impossible to carry on the administration of, the municipality. It is said that thousands of complaints have to be filed and it would be casting undue burden on the Deputy Health Officer to sign all the complaints. We are not impressed by this argument.It is true that the word "take" has various meanings but no dictionary or authority has been placed before us to show that the word can mean "cause to be taken". It seems to us that the word "take" was used because if the word "institute" had been used it may not have been appropriate to cover all proceedings that can be taken under S. 481(1)is true that it the language suggested by him had been used no dispute would have arisen. But we are not free to interpret the words "take proceedings" to mean "order proceedings to be taken" because the word "take" is an English word and we can only ascribe to it a meaning which it bears in the Englishare unable to accept this contention.This is not a case where a series of decisions have taken a particular view and that view has been widely accepted and various rights have accrued to parties acting on that view.We agree with the above observations of Hidayatullah, J. On this point there does not seem to have been any difference of opinion between him and the majority; ho differed only on the question whether on the facts in that case there was in fact a delegation or not. | 0 | 2,468 | 441 | ### 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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of anything done or omitted to be done by them, respectively, in their official capacity;(h) with the approval of the Standing Committee, admit or compromise any claim, suit or legal proceeding brought against the Corporation or against the Commissioner or a municipal officer or servant, in respect of anything done or omitted to be done as aforesaid;(i) with the like approval, institute and prosecute any suit or withdraw from or compromise any suit or any claim other than a claim of the description specified in clause (f) which has been instituted or made in the name of the Corporation or the Commissioner."7. It is not disputed that S. 69 enable the Commissioner to delegate powers, duties or functions conferred or imposed upon him or vested in him to a municipal officer. The Commissioner having delegated his powers to the Deputy Health Officer, the question arises whether it is the Deputy Health Officer or the Licence Inspector who should take proceedings against the accused within the meaning of S. 481 (1) (a). It is not disputed that under sub-cls (b), (c), (d), (f), (g) (h) and (i) of S. 481 (1), the various actions contemplated in these sub-clauses would have to be taken by the delegate himself. In other words, he would have to institute a suit within sub-clause (i) and admit or compromise any claim, suit or legal proceeding within sub-clause (h), but it is said that the word "take" has been deliberately used in sub-cls (a) and (e) to enable the delegate to entrust initiation of proceedings to another person because otherwise it would he impossible to carry on the administration of, the municipality. It is said that thousands of complaints have to be filed and it would be casting undue burden on the Deputy Health Officer to sign all the complaints. We are not impressed by this argument.It is true that the word "take" has various meanings but no dictionary or authority has been placed before us to show that the word can mean "cause to be taken". It seems to us that the word "take" was used because if the word "institute" had been used it may not have been appropriate to cover all proceedings that can be taken under S. 481(1) (a).Bavdekar, J., had observed in 55 Bom LR 377 at p. 379 - (AIR 1953 Bom 365 at p.366):"One can see easily why the words take" are used. It was desired to combine in one clause the two powers, the power to launch proceedings and the power to withdraw proceedings, and if the words "withdraw from proceedings" were used, it was not easy to use the words "order proceedings to be taken" in combination with the words withdraw proceedings."8. We are unable to accept this as correct, Bavdekar, J., further observed :"If the Legislature had in such a case really wanted that the complaint should actully be either of the Commissioner or an officer empowered by him, it would have been perfectly easy to use the words which find place in several Acts, for example, except upon a complaint in writing of the Commissioner or an officer to whom he has delegated his powers."9.It is true that it the language suggested by him had been used no dispute would have arisen. But we are not free to interpret the words "take proceedings" to mean "order proceedings to be taken" because the word "take" is an English word and we can only ascribe to it a meaning which it bears in the English language.10. The learned counsel for the appellant says that since the decision of the Bombay High Court in 55 Bom LR 377 = (AIR 1953 Bom 365 ) no other decision has taken any other view and we should not disturb the view which has prevailed since that decision. We are unable to accept this contention.This is not a case where a series of decisions have taken a particular view and that view has been widely accepted and various rights have accrued to parties acting on that view.A person who files a complaint under the Act must show that he has the authority to file that complaint and that authority cannot be conferred upon him by an erroneous interpretation long acquiesced in.This Court held in Ballavdas Agarwala v. J. C. Chakravarty, 1960-2 SCR 739 = (AIR 1980 SC 576) that a complaint under the Calcutta Municipal Act, 1923, could only be filed by the authorities mentioned therein and not by an ordinary citizen. Similarly, here it seems to us that only the authorities mentioned in S. 481, read with S. 69, can launch proceedings against person charged with offences under the Act or the rules regulations or by laws made, under it.This Court noticed the decision of the Bombay High Court in Manilal Jethalals case, 55 Bom LR 377 = (AIR 1953 Bom 365 ) in 1960-2 SCR 739 (AIR 1960 SC 576 ) and observed :"The decision proceeded, however, on a somewhat wide meaning given to the words "take proceeding" that part of the decision, as to the correctness of which we say nothing, does not concern us here, because the words used in S. 537 of the Calcutta Municipal Act are different."We may mention that Hidayattullah, J., Observed at p. 764 (of SCR) = (at p. 586 of AIR) in Ballavdas Agarwalas case :"An officer of the municipality must himself perform his duties created by statute or bye-law. He cannot delegate them to others, unless expressly authorised in this behalf. The Act does not so empower the officers to delegate their functions in their turn, and thus an officer to whom the power is delegated by the Chairman must perform them himself."11. We agree with the above observations of Hidayatullah, J. On this point there does not seem to have been any difference of opinion between him and the majority; ho differed only on the question whether on the facts in that case there was in fact a delegation or not.
### Response:
0
### Explanation:
7. It is not disputed that S. 69 enable the Commissioner to delegate powers, duties or functions conferred or imposed upon him or vested in him to a municipalis not disputed that under sub-cls (b), (c), (d), (f), (g) (h) and (i) of S. 481 (1), the various actions contemplated in these sub-clauses would have to be taken by the delegate himself. In other words, he would have to institute a suit within sub-clause (i) and admit or compromise any claim, suit or legal proceeding within sub-clause (h), but it is said that the word "take" has been deliberately used in sub-cls (a) and (e) to enable the delegate to entrust initiation of proceedings to another person because otherwise it would he impossible to carry on the administration of, the municipality. It is said that thousands of complaints have to be filed and it would be casting undue burden on the Deputy Health Officer to sign all the complaints. We are not impressed by this argument.It is true that the word "take" has various meanings but no dictionary or authority has been placed before us to show that the word can mean "cause to be taken". It seems to us that the word "take" was used because if the word "institute" had been used it may not have been appropriate to cover all proceedings that can be taken under S. 481(1)is true that it the language suggested by him had been used no dispute would have arisen. But we are not free to interpret the words "take proceedings" to mean "order proceedings to be taken" because the word "take" is an English word and we can only ascribe to it a meaning which it bears in the Englishare unable to accept this contention.This is not a case where a series of decisions have taken a particular view and that view has been widely accepted and various rights have accrued to parties acting on that view.We agree with the above observations of Hidayatullah, J. On this point there does not seem to have been any difference of opinion between him and the majority; ho differed only on the question whether on the facts in that case there was in fact a delegation or not.
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Nk Rajendra Mohan Vs. Thirvamadi Rubber Co. Ltd | (1) and Section 2 of the Malabar Tenancy Act 1929 dealing with exemption and Section 3 (1) (viii), of the Kerala Agrarian Relations Act 1960 enunciated that the legislature did consciously, as a matter of policy, in relation to the grant of exemption for plantations, restrict the scope thereof. The High Court in categorical terms referred to the language used in Section 3 (1) (viii) and the definition of the expression “plantation” in both the statutes, and was of the view that the object behind the constricted sweep of “plantation”, was to confine the scope of exemption from the applicability of the Act. The High Court entertained the notion, that the legislature had construed it to be unfair and improper to deny the benefit of the fixity of tenure to a lessee who might have taken the lease of extensive parambos or waste lands and in course of time by hard toil had developed those into plantations. That under the provisions of the Malabar Tenancy Act 1929, such a tenant was entitled to fixity of tenure, unless the lease had been one granted specifically for the purpose of raising plantation as mentioned therein was also emphasised. The High Court thus rejected the appellant’s plea based on Section 3 (1) (viii) and held that in view of the clues furnished by the statutory history preceding the legislation involved, and also the express language used in Section 3 (1), the lease transaction was beyond the ambit thereof. It held as well that if the interpretation of Section 3 (1) (viii) as sought to be projected by the appellant was accepted, it would divest the tenants of their pre-existing right of fixity under the Malabar Tenancy Act 1929 was underlined as well. 30. Another Full Bench of the Kerala High Court, comprising amongst others of Hon’ble Mr. Justice T. C. Raghavan C.J., as the common member, in Jacob Philip (supra) also had the occasion to examine the aspect of the fixity of tenure under Section 13 of the Act 1963. A lease of land, covered by Section 3 (1) (i) was involved in a suit instituted against the appellant therein. It was contended on behalf of the appellant, that this exemption provision ought to be applied qua the point of time, when the lease was granted and not at the commencement of the Act or of any subsequent date, as on the date of the execution of the lease neither the Government nor any corporation owned or controlled by the Government was in the picture. The attention of the High Court was drawn amongst others to the decision in Jerome Fernandes (supra). On an analysis of the contents of the Section 3 (1) (i), the High Court negatived this plea. Drawing sustenance from the text of the Explanations appended to the clause, it returned a finding that the requirements under Section 3 (1) (i) would be satisfied, even if the leased land happened to belong to or become vested in the Government or a corporation under or controlled by the Government etc, subsequent to the grant of the lease. 31. The rendering in Jacob Philip (supra) turns on its own facts and by no means, in our opinion neuters the determination made in Jerome Fernandes (supra). Jacob Philip (supra) proceeded on an interpretation of Section 3 (1) (i) of Act 1963 which is distinctively different in language and content from Section 3 (1) (viii) and no analogy, therefore, can be drawn to make it applicable to the case in hand. In our considered opinion, the decision of the Full Bench, in Jerome Fernandes (supra), having regard to the scheme of Act 1963 with particular reference to Chapter II and Section 3 (1) (viii) thereof, correctly states the law on the issue. We endorse the view taken in Jerome Fernandes (supra) on the applicability or otherwise of Section 3 (1) (viii) to the leasehold land of the present appeal. 32. Noticeably, the respondent-company in its written statement had pleaded that the lease created by the deed dated 26.6.1918 was an agricultural tenancy entitling the lessee to fixity of tenure under the Malabar Tenancy Act 1929 and that the same benefit stood extended under the Act 1963. The learned Trial Court while dismissing the suit, recorded as well the finding of the Land Tribunal, following an inquiry, that the respondent-company was entitled to fixity of tenure in respect of the leasehold land both under the Malabar Tenancy Act 1929 (as amended) and the Act 1963. This finding was upheld upon by the First Appellate Court and not dislodged by the High Court. We notice as well that Section 2 of the Malabar Tenancy Act 1929 has no application to the facts and circumstances of the case, so as to warrant exemption from the applicability thereof.33. As determined hereinbefore, the respondent-company, continued as a lessee by holding over after 1954 and the lease rent at the agreed rate fixed at the first instance was paid till 1978 as admitted by the appellant. The Act 1963 had come into force prior thereto. As neither Section 3 (1) (vii) nor 3 (1) (viii) is applicable to the plantation involved, the respondent-company is entitled to fixity of tenure under Section 13 thereof. To reiterate, Section 116 of the Transfer of Property Act ,1882 even if applicable, the lease originally entered into would not get transformed with time into one of tenancy in respect of plantation as defined in Section 2 (44) of Act 1963, in absence of any overt act of the parties, intending the same on agreed upon terms.34. The consequences of the applicability of the Act, vis-a-vis the plantation need not detain us, as the same would be regulated by the provisions of the statute and as rightly asserted on behalf of the respondent-company, the course to follow would witness the State and the tenant as the parties thereto. With the enforcement of the Act 1963, the appellant would be left with no role in that regard. | 0[ds]18. The lease deed, reading between the lines, would demonstrate irrefutably, that at the time of execution thereof, neither a private forest nor a plantation as defined in Section 2 (44)/2 (47) of the Act 1963 did exist on the demised land. The lease which was for a period of 36 years w.e.f. 01.4.1918, encompassed land admeasuringacres which included hills, water channels, poyils lands etc so much so that only 925 acres were comprehended to be fit for cultivation and the lessee was left at liberty to raise coffee, tea, pepper, cinchona, rubber or any other produce at thediscretion. It is apparent as well on the face of the lease deed, that there were forests, jungles and trees on the land which the lessee was authorized to clear for the purpose of plantation and cultivation, to be decided by him. There was thus no restriction or regulation on the nature of cultivation/plantation to be resorted to by the lessee on the cultivable portion of the land leased out. To reiterate, on the date of creation of the lease there was neither any plantation nor a private forest on the leasehold land within the meaning of Section 2 (44) and 2 (47) of Act 1963 respectively.19. Significantly, the above notwithstanding, in the plaint, the plaintiffs while acknowledging the rubber plantation on the suit land raised by thethe assignee/transferee, in possession in place of the original lessee, did assert that from prior to the initiation of the lease in the year 1918, there was a private forest on the suit land. They contended, to reiterate, that as the lease period had expired after 36 years, the company had no right to retain the possession of the suit land and claim fixity of tenure. Noticeably however, the plaintiffs complained ofof lease rent at the rate of 693.75 paisa per annum by thefrom the year 1979 for which a decree for arrear rent was also prayed for. Axiomatically thus, the plaintiffs acknowledged and approved the possession of the leasehold land by theeven after the expiry of the period of lease in 1954 and did receive the annual rent at the same rate, even on their admission up to the year 1978. In course of the arguments before this Court, however, the learned senior counsel for the appellant has not pursued the plea based on private forest and has confined the assailment quaas per clause 3 (1) (viii) of Act 1963. The parties are also not at issue that on the date of the lease, no plantation as defined in Section 2 (44) did exist on the demised land. The plaint, to reiterate does not refer to such plantation on the date of the lease, as well. In that view of the matter, theplea based on Section 3 (1) (viii) lacks foundation in the plaint and in the strict sense of the term as the debate has its genesis in a suit, ought not to have been entertained by the High Court. This is more so, as the records substantiate that the contention based onwas raised for the first time before thatadmittedly, at the institution of the suit, the rubber plantation of thedid exist on the land, in the teeth of Section 116 of the Transfer of Property Act 1882, which comprehends renewal of the expired lease, year after year or month after month it is essentially qua the purpose for which the property had been originally leased which in the instant case is traceable to the year 1918. As the lease deed dated 21.6.1918 proclaims in no uncertain terms that the transaction evidenced thereby was by no means a tenancy in respect of plantation, the same with efflux of time, in our estimate cannot transfigure into the same merely because a plantation has been raised on the leasehold land in between by the lessee who had been left at its discretion to grow the same. In absence of a conscious intervention of the parties to the lease, either to convert it into one for tenancy in respect of such plantation ad idem or to extend it thereto, an automatic transformation of the lease not for plantation cannot stand converted into one for plantation. As a transaction of this kind involving immovable property is essentially governed by the terms and conditions concurred upon by the parties thereto, no unilateral alteration or modification thereof, unless agreed to by both, in categorical terms, ought to be permitted to be pleaded or enforced by anyone of them to the disadvantage of the other. Neither the lease deed contains any stipulation sanctioning such unilateral alteration of the stipulations contained therein nor do the materials on record testify such consensus based modification of the lease covenants. A plain perusal of the Section 116 of the Transfer of Property Act 1882 also does endorse thisreferring to the Third Five Year Plan, dealing with land reforms and ceiling on agricultural holdings, this Court on an audit of the materials available, concluded that there was no appreciable difference between the economics of tea, coffee and rubber plantations and areca and pepper plantations so as to justify the differential treatment. The report of the concerned committee, that if areca gardens were brought under the ceiling, it would hamper production and would be against national economy and that it had recommended to the Planning Commission, the Central Government and the State Government that at par with tea, coffee and rubber plantations, orchards, areca nut gardens should also be similarly exempted from ceiling and that the result of the application of the ceiling and other provisions of Act 1960 would occasion breakup of the plantations with a likely result in fall in production, was also noted. While concluding that the same considerations as extended to tea, coffee and rubber plantations, were available as well to areca and pepper plantations, the omission of the respondent State, to set out adequate justification for exclusion of pepper and areca nut from the benefit of exemption granted to tea, coffee and rubber plantation was recorded. Adverting to the object and purpose of the Act 1960, and the basis on which exemption was granted thereunder to the plantations as defined thereby, it was held that there was no reason for making any distinction between tea, coffee and rubber plantations on one hand and areca and pepper plantations on the other, in the facts of the case. The contentions listed in serial No. 5 and 6 though, beyond the framework of the instant inquisition, suffice it to state, were answered in the affirmative in favour of the appellant.any in its written statement had pleaded that the lease created by the deed dated 26.6.1918 was an agricultural tenancy entitling the lessee to fixity of tenure under the Malabar Tenancy Act 1929 and that the same benefit stood extended under the Act 1963. The learned Trial Court while dismissing the suit, recorded as well the finding of the Land Tribunal, following an inquiry, that thewas entitled to fixity of tenure in respect of the leasehold land both under the Malabar Tenancy Act 1929 (as amended) and the Act 1963. This finding was upheld upon by the First Appellate Court and not dislodged by the High Court. We notice as well that Section 2 of the Malabar Tenancy Act 1929 has no application to the facts and circumstances of the case, so as to warrant exemption from the applicability thereof.33. As determined hereinbefore, thecontinued as a lessee by holding over after 1954 and the lease rent at the agreed rate fixed at the first instance was paid till 1978 as admitted by the appellant. The Act 1963 had come into force prior thereto. As neither Section 3 (1) (vii) nor 3 (1) (viii) is applicable to the plantation involved, theis entitled to fixity of tenure under Section 13 thereof. To reiterate, Section 116 of the Transfer of Property Act ,1882 even if applicable, the lease originally entered into would not get transformed with time into one of tenancy in respect of plantation as defined in Section 2 (44) of Act 1963, in absence of any overt act of the parties, intending the same on agreed upon terms.34. The consequences of the applicability of the Act, vis-a-vis the plantation need not detain us, as the same would be regulated by the provisions of the statute and as rightly asserted on behalf of the respondent-company, the course to follow would witness the State and the tenant as the parties thereto. With the enforcement of the Act 1963, the appellant would be left with no role in that regard. | 0 | 9,675 | 1,588 | ### Instruction:
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(1) and Section 2 of the Malabar Tenancy Act 1929 dealing with exemption and Section 3 (1) (viii), of the Kerala Agrarian Relations Act 1960 enunciated that the legislature did consciously, as a matter of policy, in relation to the grant of exemption for plantations, restrict the scope thereof. The High Court in categorical terms referred to the language used in Section 3 (1) (viii) and the definition of the expression “plantation” in both the statutes, and was of the view that the object behind the constricted sweep of “plantation”, was to confine the scope of exemption from the applicability of the Act. The High Court entertained the notion, that the legislature had construed it to be unfair and improper to deny the benefit of the fixity of tenure to a lessee who might have taken the lease of extensive parambos or waste lands and in course of time by hard toil had developed those into plantations. That under the provisions of the Malabar Tenancy Act 1929, such a tenant was entitled to fixity of tenure, unless the lease had been one granted specifically for the purpose of raising plantation as mentioned therein was also emphasised. The High Court thus rejected the appellant’s plea based on Section 3 (1) (viii) and held that in view of the clues furnished by the statutory history preceding the legislation involved, and also the express language used in Section 3 (1), the lease transaction was beyond the ambit thereof. It held as well that if the interpretation of Section 3 (1) (viii) as sought to be projected by the appellant was accepted, it would divest the tenants of their pre-existing right of fixity under the Malabar Tenancy Act 1929 was underlined as well. 30. Another Full Bench of the Kerala High Court, comprising amongst others of Hon’ble Mr. Justice T. C. Raghavan C.J., as the common member, in Jacob Philip (supra) also had the occasion to examine the aspect of the fixity of tenure under Section 13 of the Act 1963. A lease of land, covered by Section 3 (1) (i) was involved in a suit instituted against the appellant therein. It was contended on behalf of the appellant, that this exemption provision ought to be applied qua the point of time, when the lease was granted and not at the commencement of the Act or of any subsequent date, as on the date of the execution of the lease neither the Government nor any corporation owned or controlled by the Government was in the picture. The attention of the High Court was drawn amongst others to the decision in Jerome Fernandes (supra). On an analysis of the contents of the Section 3 (1) (i), the High Court negatived this plea. Drawing sustenance from the text of the Explanations appended to the clause, it returned a finding that the requirements under Section 3 (1) (i) would be satisfied, even if the leased land happened to belong to or become vested in the Government or a corporation under or controlled by the Government etc, subsequent to the grant of the lease. 31. The rendering in Jacob Philip (supra) turns on its own facts and by no means, in our opinion neuters the determination made in Jerome Fernandes (supra). Jacob Philip (supra) proceeded on an interpretation of Section 3 (1) (i) of Act 1963 which is distinctively different in language and content from Section 3 (1) (viii) and no analogy, therefore, can be drawn to make it applicable to the case in hand. In our considered opinion, the decision of the Full Bench, in Jerome Fernandes (supra), having regard to the scheme of Act 1963 with particular reference to Chapter II and Section 3 (1) (viii) thereof, correctly states the law on the issue. We endorse the view taken in Jerome Fernandes (supra) on the applicability or otherwise of Section 3 (1) (viii) to the leasehold land of the present appeal. 32. Noticeably, the respondent-company in its written statement had pleaded that the lease created by the deed dated 26.6.1918 was an agricultural tenancy entitling the lessee to fixity of tenure under the Malabar Tenancy Act 1929 and that the same benefit stood extended under the Act 1963. The learned Trial Court while dismissing the suit, recorded as well the finding of the Land Tribunal, following an inquiry, that the respondent-company was entitled to fixity of tenure in respect of the leasehold land both under the Malabar Tenancy Act 1929 (as amended) and the Act 1963. This finding was upheld upon by the First Appellate Court and not dislodged by the High Court. We notice as well that Section 2 of the Malabar Tenancy Act 1929 has no application to the facts and circumstances of the case, so as to warrant exemption from the applicability thereof.33. As determined hereinbefore, the respondent-company, continued as a lessee by holding over after 1954 and the lease rent at the agreed rate fixed at the first instance was paid till 1978 as admitted by the appellant. The Act 1963 had come into force prior thereto. As neither Section 3 (1) (vii) nor 3 (1) (viii) is applicable to the plantation involved, the respondent-company is entitled to fixity of tenure under Section 13 thereof. To reiterate, Section 116 of the Transfer of Property Act ,1882 even if applicable, the lease originally entered into would not get transformed with time into one of tenancy in respect of plantation as defined in Section 2 (44) of Act 1963, in absence of any overt act of the parties, intending the same on agreed upon terms.34. The consequences of the applicability of the Act, vis-a-vis the plantation need not detain us, as the same would be regulated by the provisions of the statute and as rightly asserted on behalf of the respondent-company, the course to follow would witness the State and the tenant as the parties thereto. With the enforcement of the Act 1963, the appellant would be left with no role in that regard.
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the demised land. The plaint, to reiterate does not refer to such plantation on the date of the lease, as well. In that view of the matter, theplea based on Section 3 (1) (viii) lacks foundation in the plaint and in the strict sense of the term as the debate has its genesis in a suit, ought not to have been entertained by the High Court. This is more so, as the records substantiate that the contention based onwas raised for the first time before thatadmittedly, at the institution of the suit, the rubber plantation of thedid exist on the land, in the teeth of Section 116 of the Transfer of Property Act 1882, which comprehends renewal of the expired lease, year after year or month after month it is essentially qua the purpose for which the property had been originally leased which in the instant case is traceable to the year 1918. As the lease deed dated 21.6.1918 proclaims in no uncertain terms that the transaction evidenced thereby was by no means a tenancy in respect of plantation, the same with efflux of time, in our estimate cannot transfigure into the same merely because a plantation has been raised on the leasehold land in between by the lessee who had been left at its discretion to grow the same. In absence of a conscious intervention of the parties to the lease, either to convert it into one for tenancy in respect of such plantation ad idem or to extend it thereto, an automatic transformation of the lease not for plantation cannot stand converted into one for plantation. As a transaction of this kind involving immovable property is essentially governed by the terms and conditions concurred upon by the parties thereto, no unilateral alteration or modification thereof, unless agreed to by both, in categorical terms, ought to be permitted to be pleaded or enforced by anyone of them to the disadvantage of the other. Neither the lease deed contains any stipulation sanctioning such unilateral alteration of the stipulations contained therein nor do the materials on record testify such consensus based modification of the lease covenants. A plain perusal of the Section 116 of the Transfer of Property Act 1882 also does endorse thisreferring to the Third Five Year Plan, dealing with land reforms and ceiling on agricultural holdings, this Court on an audit of the materials available, concluded that there was no appreciable difference between the economics of tea, coffee and rubber plantations and areca and pepper plantations so as to justify the differential treatment. The report of the concerned committee, that if areca gardens were brought under the ceiling, it would hamper production and would be against national economy and that it had recommended to the Planning Commission, the Central Government and the State Government that at par with tea, coffee and rubber plantations, orchards, areca nut gardens should also be similarly exempted from ceiling and that the result of the application of the ceiling and other provisions of Act 1960 would occasion breakup of the plantations with a likely result in fall in production, was also noted. While concluding that the same considerations as extended to tea, coffee and rubber plantations, were available as well to areca and pepper plantations, the omission of the respondent State, to set out adequate justification for exclusion of pepper and areca nut from the benefit of exemption granted to tea, coffee and rubber plantation was recorded. Adverting to the object and purpose of the Act 1960, and the basis on which exemption was granted thereunder to the plantations as defined thereby, it was held that there was no reason for making any distinction between tea, coffee and rubber plantations on one hand and areca and pepper plantations on the other, in the facts of the case. The contentions listed in serial No. 5 and 6 though, beyond the framework of the instant inquisition, suffice it to state, were answered in the affirmative in favour of the appellant.any in its written statement had pleaded that the lease created by the deed dated 26.6.1918 was an agricultural tenancy entitling the lessee to fixity of tenure under the Malabar Tenancy Act 1929 and that the same benefit stood extended under the Act 1963. The learned Trial Court while dismissing the suit, recorded as well the finding of the Land Tribunal, following an inquiry, that thewas entitled to fixity of tenure in respect of the leasehold land both under the Malabar Tenancy Act 1929 (as amended) and the Act 1963. This finding was upheld upon by the First Appellate Court and not dislodged by the High Court. We notice as well that Section 2 of the Malabar Tenancy Act 1929 has no application to the facts and circumstances of the case, so as to warrant exemption from the applicability thereof.33. As determined hereinbefore, thecontinued as a lessee by holding over after 1954 and the lease rent at the agreed rate fixed at the first instance was paid till 1978 as admitted by the appellant. The Act 1963 had come into force prior thereto. As neither Section 3 (1) (vii) nor 3 (1) (viii) is applicable to the plantation involved, theis entitled to fixity of tenure under Section 13 thereof. To reiterate, Section 116 of the Transfer of Property Act ,1882 even if applicable, the lease originally entered into would not get transformed with time into one of tenancy in respect of plantation as defined in Section 2 (44) of Act 1963, in absence of any overt act of the parties, intending the same on agreed upon terms.34. The consequences of the applicability of the Act, vis-a-vis the plantation need not detain us, as the same would be regulated by the provisions of the statute and as rightly asserted on behalf of the respondent-company, the course to follow would witness the State and the tenant as the parties thereto. With the enforcement of the Act 1963, the appellant would be left with no role in that regard.
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Lynette Fernandes Vs. Gertie Mathias since Deceased by Lrs | the period of limitation for an application seeking revocation of grant of probate, Article 137 of Limitation Act will apply to the case in hand. Article 137 reads thus:-ArticleDescription of applicationPeriod of LimitationTime from which period begins to run137.Any other application for which no period of limitation is provided elsewhere in this division.Three yearsWhen the right to apply accruesThis Court in Kerala State Electricity Board, Trivandrum v. T.P. Kunhaliumma, AIR 1997 SC 282 has held that any application under any Act, including a Writ Petition under any Special Act will fall under within Article 137 of the Limitation Act and have a limitation period of three years.“22. The changed definition of the words "applicant" and "application" contained in Section 2(a) and 2(b) of the 1963 Limitation Act indicates the object of the Limitation Act to include petitions, original or otherwise, under special laws. The interpretation which was given to Article 181 of the 1908 Limitation Act on the principle of ejusdem generis is not applicable with regard to Article 137 of the 1963 Limitation Act. Article 137 stands in isolation from all other Articles in Part I of the third division. This Court in Nityanada Joshis case (supra) has rightly thrown doubt on the two Judge Bench decision of this Court in Athani Municipal Council case (supra) where this Court construed Article 137 to be referable to applications under the Civil Procedure Code. Article 137 includes petitions within the word "applications." These petitions and applications can be under any special Act as in the present case.23. The conclusion we reach is that Article 137 of the 1963 Limitation Act will apply to any petition or application filed under any Act to a civil court. With respect we differ from the view taken by the two Judge Bench of this Court in Athani Municipal Council case (supra) and hold that Article 137 of the 1963 Limitation Act is not confined to applications contemplated by or under the CPC. The petition in the present case was to the District Judge as a court. The petition was one contemplated by the Telegraph Act for judicial decision. The petition is an application falling within the scope of Article 137 of the 1963 Limitation Act.”The aforementioned dictum is reiterated in the case of Krishna Kumar Sharma v. Rajesh Kumar Sharma, (2009) 11 SCC 537. The Indian Succession Act is a special law and the ratio of the above judgment is squarely applicable to the present case.12. However, the appellant relied upon the judgment B. Manjunath Prabhu & Others v. C. G. Srinivas & Others, AIR 2005 Kant 136 , to argue that Article 137 does not apply to application for grant of probate and sought to apply it to the present case of application for revocation of grant. The High Court of Karnataka while passing the aforementioned judgment relied upon the judgment of Madras High Court in the case of S. Krishnaswamy v. E. Devarajan, AIR 1991 Mad 214 . In these judgments, the High Courts have observed that in the application filed for grant of probate or Letters of Administration, no right is asserted or claimed by the appellant. The applicant only seeks recognition of the Court to perform a duty. By the proceedings filed for grant of probate or Letters of Administration, no rights of the applicant are settled or secured in the legal sense. The author of the testament has cast a duty with regard to the administration of his estate, and the applicant for probate only seeks the permission of the Court to perform that duty. The duty is only moral and not legal. There is no law which compels the applicant to file the proceedings for probate or letters of administration. Based on these observations, the Courts have ruled that it would be very difficult to hold that the proceedings for grant of probate come within the meaning of an application under Article 137 of the Limitation Act, 1963. The Judgment of the Madras High Court, mentioned supra, is considered by this Court in Kerala State Electricity Board, Trivandrum v. T.P. Kunhaliumma, AIR 1997 SC 282, cited supra. In our considered opinion, in view of the judgments of this Court in the case of both Kerala State Electricity Board, Trivandrum v. T.P. Kunhaliumma, AIR 1997 SC 282 and Kunvarjeet Singh Khandpur v. Kirandeep Kaur, (2008) 8 SCC 463 , the judgments of the High Court’s cannot be pressed by the appellant.13. One must keep in mind that the grant of probate by a Competent Court operates as a judgment in rem and once the probate to the Will is granted, then such probate is good not only in respect of the parties to the proceedings, but against the world. If the probate is granted, the same operates from the date of the grant of the probate for the purpose of limitation under Article 137 of the Limitation Act in proceedings for revocation of probate. In this matter, as mentioned supra, the appellant was a minor at the time of grant of probate. She attained majority on 09.09.1965. She got married on 27.10.1965. In our considered opinion, three years limitation as prescribed under Article 137 runs from the date of the appellant attaining the age of majority i.e. three years from 09.09.1965. The appellant did not choose to initiate any proceedings till the year 25.01.1996 i.e., a good 31 years after she attained majority. No explanation worthy of acceptance has been offered by the appellant to show as to why she did not approach the Court of law within the period of limitation. At the cost of repetition, we observe that the appellant failed to produce any evidence to prove that the Will was a result of fraud or undue influence. The same Will has remained un-challenged until the date of filing of application for revocation. No acceptable explanation is offered for such a huge delay of 31 years in approaching the Court for cancellation or revocation of grant of probate. | 0[ds]6. With respect to the first ground, we are unable to accept the contention that not taking out a citation at Chikmagalur is a substantial defect for the grant of probate. It is a finding of fact by the Trial Court and the High Court that the appellant and her entire family lived in thehouse at Mangalore. As a matter of fact, the appellant was a minor and lived with her mother when Mrs. Mathias applied for probate. The appellant has not adduced any evidence to prove that the Will was not genuine. She has not initiated any proceedings to question the validity of the Will. The Will executed by Mr. Richard P. Mathias in favour of Mrs. Gertie Mathias has remained unquestioned. Section 263 of the Indian Succession Act, makes it very clear as to what ‘justmeans and includes. As mentioned supra, the grant of probate may be revoked or annulled for ‘justonly. The explanation to this Section further clarifies that ‘justshall be deemed to exist where the proceedings to obtain the grant were defective in substance. In our opinion, a mereof citation at Chikmagalur where the property is situated does not amount to rendering the proceedings defective in substance under the facts and circumstances of this case. It may be procedural irregularity in this case inasmuch as though the property existed at Chikmagalur, all the parties including the owner of the property resided at Mangalore. Mr. Richard P. Mathias left behind his Will at Mangalore. Mr. Richard P. Mathias, who bequeathed the property in favour of his wife, also lived in Mangalore till his death. The beneficiary under the Will, namely, Mrs. Gertie Mathias also lived in Mangalore along with her husband and children, including the appellant. It is also not in dispute that the appellant lived in Mangalore till the initiation of these proceedings. Even if it is assumed that the citation had been issued at Chikmagalur, the appellant would not have got any benefit out of the same. The appellant wanted the citation to be issued at Chikmagalur on the assumption that she would have had the knowledge of the Will and the proceedings. As mentioned supra, since the appellant was residing at Mangalore, she would not have been benefitted, had the citation been issued at Chikmagalur. Section 263 of the Indian Succession Act vests a judicial discretion in the Court to revoke or annul a grant for ‘justDefective in substance must mean that defect was of such a character as to substantially affect the regularity and correctness of the previous proceedings. The very fact that the appellant kept quiet for 36 long years would clearly reveal that she was not interested in filing a caveat or in opposing grant ofin the present case we are not satisfied in all the circumstances of the case that just cause within the meaning of section 263 had been made out. We cannot ignore the facts that about 27 years had elapsed after the grant of probate in 1921, that Girish in spite of the knowledge of the grant at the latest in 1933 did not take any steps in his lifetime to have the grant revoked, that there was no suggestion that the will was a forgery or was otherwise invalid and that the will was a registered one and had been executed eight years before the testators unnatural death. Hence the omission of citations to Girish which ordinarily may have been sufficient for a revocation of the grant was not in the special circumstances of this case sufficient to justify the court to revoke the, as mentioned supra, Mrs. Gertie Mathias was the only beneficiary under the Will, and the Will remained unquestioned till the filing of the application seeking revocation for grant of probate. There is nothing on record to show that the grant of probate would not have been made, had the children of Mr, Richard P. Mathias been arrayed.Moreover, the other two children of Mrs. Mathias have not questioned the grant of probate. On the other hand, they are opposing the appellantthe present matter, as mentioned supra, no benefit accrued from the Will of Mr. Mathias in favour of the appellant. The appellant also sought to rely on the case of Sachindra Narain Sah v. Hironmoyee Dasi, 24 CWN 538. The aforementioned case does not help the appellant as it did not deal with the necessity of appointing a guardian while serving notice, but instead dealt with the consent of the guardian sowe agree that there cannot be a common form of probate in India. Be that as it may, since the evidence of Mrs. Mathias was recorded at the time of grant of probate by the competent Court of law, it is clear that the probate was granted in favour of Mrs. Mathias after publishing Citation at Mangalore and after due application of mind by the Court. Hence it was solemn form only. Since the provisions of Section 263 of the Indian Succession Act state that a probate can be revoked on grounds of just cause, it was open for the appellant to approach the Court of law by filing an application under Section 263 of the Indian Succession Act, seeking revocation. As the appellant has approached the Court of law, and her application is being dealt with by a rigorous process of adjudication upto this Court, there is no question of common form being an obstacle to her ability to challenge the probate. The question raised by the appellant on the distinction between common form and solemn form is academic.10. Coming to the second ground for just cause,that the grant of probate was obtained by the appellant in fraudulent manner, as mentioned supra, the appellant has not come forward to adduce any evidence to prove the so called allegation of fraud. The signature of Mr. Richard P. Mathias on the Will has not been challenged. The Trial Court as well as the High Court has recorded the finding that the genuineness of the Will was not challenged by the appellant. Moreover, the particulars of fraud are neither pleaded nor proved by the party alleging fraud before the District Court. The party alleging fraud must set forth full particulars of fraud and the case can be decided only on the particulars laid out. There can be no departure from them. General allegations are insufficient. Merely because the appellant has made bald allegations in the revocation application that the Will executed by the deceased is void because the same has been brought out by Mrs. Mathias and the same is constituted by fraud and undue influence, it will not absolve her from providing specifically the particulars of fraud and undue influence. Mere bald pleading will not help her in the absence ofthe absence of any evidence on record showing prejudice because of non issuance of citation at Chikmagalur, and in the absence of any evidencemuch less cogent evidenceto prove fraud and undue influence, we conclude that the Trial Court as well as the High Court is justified in concluding that there is no just cause for revocation of grant of probate under Section 263 of the Indian Succession Act.11. To crown all the aforementioned, theapplication for revocation of grant of probate was highly belated. The District Court as well as the High Court is correct in holding that theapplication for revocation of grant of probate is hopelessly barred by limitation. As there is no provision under the Limitation Act specifying the period of limitation for an application seeking revocation of grant of probate, Article 137 of Limitation Act will apply to the case inour considered opinion, in view of the judgments of this Court in the case of both Kerala State Electricity Board, Trivandrum v. T.P. Kunhaliumma, AIR 1997 SC 282 and Kunvarjeet Singh Khandpur v. Kirandeep Kaur, (2008) 8 SCC 463 , the judgments of the Highcannot be pressed by the appellant.13. One must keep in mind that the grant of probate by a Competent Court operates as a judgment in rem and once the probate to the Will is granted, then such probate is good not only in respect of the parties to the proceedings, but against the world. If the probate is granted, the same operates from the date of the grant of the probate for the purpose of limitation under Article 137 of the Limitation Act in proceedings for revocation of probate. In this matter, as mentioned supra, the appellant was a minor at the time of grant of probate. She attained majority on 09.09.1965. She got married on 27.10.1965. In our considered opinion, three years limitation as prescribed under Article 137 runs from the date of the appellant attaining the age of majority i.e. three years from 09.09.1965. The appellant did not choose to initiate any proceedings till the year 25.01.1996 i.e., a good 31 years after she attained majority. No explanation worthy of acceptance has been offered by the appellant to show as to why she did not approach the Court of law within the period of limitation. At the cost of repetition, we observe that the appellant failed to produce any evidence to prove that the Will was a result of fraud or undue influence. The same Will has remaineduntil the date of filing of application for revocation. No acceptable explanation is offered for such a huge delay of 31 years in approaching the Court for cancellation or revocation of grant of probate. | 0 | 4,813 | 1,701 | ### 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 period of limitation for an application seeking revocation of grant of probate, Article 137 of Limitation Act will apply to the case in hand. Article 137 reads thus:-ArticleDescription of applicationPeriod of LimitationTime from which period begins to run137.Any other application for which no period of limitation is provided elsewhere in this division.Three yearsWhen the right to apply accruesThis Court in Kerala State Electricity Board, Trivandrum v. T.P. Kunhaliumma, AIR 1997 SC 282 has held that any application under any Act, including a Writ Petition under any Special Act will fall under within Article 137 of the Limitation Act and have a limitation period of three years.“22. The changed definition of the words "applicant" and "application" contained in Section 2(a) and 2(b) of the 1963 Limitation Act indicates the object of the Limitation Act to include petitions, original or otherwise, under special laws. The interpretation which was given to Article 181 of the 1908 Limitation Act on the principle of ejusdem generis is not applicable with regard to Article 137 of the 1963 Limitation Act. Article 137 stands in isolation from all other Articles in Part I of the third division. This Court in Nityanada Joshis case (supra) has rightly thrown doubt on the two Judge Bench decision of this Court in Athani Municipal Council case (supra) where this Court construed Article 137 to be referable to applications under the Civil Procedure Code. Article 137 includes petitions within the word "applications." These petitions and applications can be under any special Act as in the present case.23. The conclusion we reach is that Article 137 of the 1963 Limitation Act will apply to any petition or application filed under any Act to a civil court. With respect we differ from the view taken by the two Judge Bench of this Court in Athani Municipal Council case (supra) and hold that Article 137 of the 1963 Limitation Act is not confined to applications contemplated by or under the CPC. The petition in the present case was to the District Judge as a court. The petition was one contemplated by the Telegraph Act for judicial decision. The petition is an application falling within the scope of Article 137 of the 1963 Limitation Act.”The aforementioned dictum is reiterated in the case of Krishna Kumar Sharma v. Rajesh Kumar Sharma, (2009) 11 SCC 537. The Indian Succession Act is a special law and the ratio of the above judgment is squarely applicable to the present case.12. However, the appellant relied upon the judgment B. Manjunath Prabhu & Others v. C. G. Srinivas & Others, AIR 2005 Kant 136 , to argue that Article 137 does not apply to application for grant of probate and sought to apply it to the present case of application for revocation of grant. The High Court of Karnataka while passing the aforementioned judgment relied upon the judgment of Madras High Court in the case of S. Krishnaswamy v. E. Devarajan, AIR 1991 Mad 214 . In these judgments, the High Courts have observed that in the application filed for grant of probate or Letters of Administration, no right is asserted or claimed by the appellant. The applicant only seeks recognition of the Court to perform a duty. By the proceedings filed for grant of probate or Letters of Administration, no rights of the applicant are settled or secured in the legal sense. The author of the testament has cast a duty with regard to the administration of his estate, and the applicant for probate only seeks the permission of the Court to perform that duty. The duty is only moral and not legal. There is no law which compels the applicant to file the proceedings for probate or letters of administration. Based on these observations, the Courts have ruled that it would be very difficult to hold that the proceedings for grant of probate come within the meaning of an application under Article 137 of the Limitation Act, 1963. The Judgment of the Madras High Court, mentioned supra, is considered by this Court in Kerala State Electricity Board, Trivandrum v. T.P. Kunhaliumma, AIR 1997 SC 282, cited supra. In our considered opinion, in view of the judgments of this Court in the case of both Kerala State Electricity Board, Trivandrum v. T.P. Kunhaliumma, AIR 1997 SC 282 and Kunvarjeet Singh Khandpur v. Kirandeep Kaur, (2008) 8 SCC 463 , the judgments of the High Court’s cannot be pressed by the appellant.13. One must keep in mind that the grant of probate by a Competent Court operates as a judgment in rem and once the probate to the Will is granted, then such probate is good not only in respect of the parties to the proceedings, but against the world. If the probate is granted, the same operates from the date of the grant of the probate for the purpose of limitation under Article 137 of the Limitation Act in proceedings for revocation of probate. In this matter, as mentioned supra, the appellant was a minor at the time of grant of probate. She attained majority on 09.09.1965. She got married on 27.10.1965. In our considered opinion, three years limitation as prescribed under Article 137 runs from the date of the appellant attaining the age of majority i.e. three years from 09.09.1965. The appellant did not choose to initiate any proceedings till the year 25.01.1996 i.e., a good 31 years after she attained majority. No explanation worthy of acceptance has been offered by the appellant to show as to why she did not approach the Court of law within the period of limitation. At the cost of repetition, we observe that the appellant failed to produce any evidence to prove that the Will was a result of fraud or undue influence. The same Will has remained un-challenged until the date of filing of application for revocation. No acceptable explanation is offered for such a huge delay of 31 years in approaching the Court for cancellation or revocation of grant of probate.
### Response:
0
### Explanation:
revocation of the grant was not in the special circumstances of this case sufficient to justify the court to revoke the, as mentioned supra, Mrs. Gertie Mathias was the only beneficiary under the Will, and the Will remained unquestioned till the filing of the application seeking revocation for grant of probate. There is nothing on record to show that the grant of probate would not have been made, had the children of Mr, Richard P. Mathias been arrayed.Moreover, the other two children of Mrs. Mathias have not questioned the grant of probate. On the other hand, they are opposing the appellantthe present matter, as mentioned supra, no benefit accrued from the Will of Mr. Mathias in favour of the appellant. The appellant also sought to rely on the case of Sachindra Narain Sah v. Hironmoyee Dasi, 24 CWN 538. The aforementioned case does not help the appellant as it did not deal with the necessity of appointing a guardian while serving notice, but instead dealt with the consent of the guardian sowe agree that there cannot be a common form of probate in India. Be that as it may, since the evidence of Mrs. Mathias was recorded at the time of grant of probate by the competent Court of law, it is clear that the probate was granted in favour of Mrs. Mathias after publishing Citation at Mangalore and after due application of mind by the Court. Hence it was solemn form only. Since the provisions of Section 263 of the Indian Succession Act state that a probate can be revoked on grounds of just cause, it was open for the appellant to approach the Court of law by filing an application under Section 263 of the Indian Succession Act, seeking revocation. As the appellant has approached the Court of law, and her application is being dealt with by a rigorous process of adjudication upto this Court, there is no question of common form being an obstacle to her ability to challenge the probate. The question raised by the appellant on the distinction between common form and solemn form is academic.10. Coming to the second ground for just cause,that the grant of probate was obtained by the appellant in fraudulent manner, as mentioned supra, the appellant has not come forward to adduce any evidence to prove the so called allegation of fraud. The signature of Mr. Richard P. Mathias on the Will has not been challenged. The Trial Court as well as the High Court has recorded the finding that the genuineness of the Will was not challenged by the appellant. Moreover, the particulars of fraud are neither pleaded nor proved by the party alleging fraud before the District Court. The party alleging fraud must set forth full particulars of fraud and the case can be decided only on the particulars laid out. There can be no departure from them. General allegations are insufficient. Merely because the appellant has made bald allegations in the revocation application that the Will executed by the deceased is void because the same has been brought out by Mrs. Mathias and the same is constituted by fraud and undue influence, it will not absolve her from providing specifically the particulars of fraud and undue influence. Mere bald pleading will not help her in the absence ofthe absence of any evidence on record showing prejudice because of non issuance of citation at Chikmagalur, and in the absence of any evidencemuch less cogent evidenceto prove fraud and undue influence, we conclude that the Trial Court as well as the High Court is justified in concluding that there is no just cause for revocation of grant of probate under Section 263 of the Indian Succession Act.11. To crown all the aforementioned, theapplication for revocation of grant of probate was highly belated. The District Court as well as the High Court is correct in holding that theapplication for revocation of grant of probate is hopelessly barred by limitation. As there is no provision under the Limitation Act specifying the period of limitation for an application seeking revocation of grant of probate, Article 137 of Limitation Act will apply to the case inour considered opinion, in view of the judgments of this Court in the case of both Kerala State Electricity Board, Trivandrum v. T.P. Kunhaliumma, AIR 1997 SC 282 and Kunvarjeet Singh Khandpur v. Kirandeep Kaur, (2008) 8 SCC 463 , the judgments of the Highcannot be pressed by the appellant.13. One must keep in mind that the grant of probate by a Competent Court operates as a judgment in rem and once the probate to the Will is granted, then such probate is good not only in respect of the parties to the proceedings, but against the world. If the probate is granted, the same operates from the date of the grant of the probate for the purpose of limitation under Article 137 of the Limitation Act in proceedings for revocation of probate. In this matter, as mentioned supra, the appellant was a minor at the time of grant of probate. She attained majority on 09.09.1965. She got married on 27.10.1965. In our considered opinion, three years limitation as prescribed under Article 137 runs from the date of the appellant attaining the age of majority i.e. three years from 09.09.1965. The appellant did not choose to initiate any proceedings till the year 25.01.1996 i.e., a good 31 years after she attained majority. No explanation worthy of acceptance has been offered by the appellant to show as to why she did not approach the Court of law within the period of limitation. At the cost of repetition, we observe that the appellant failed to produce any evidence to prove that the Will was a result of fraud or undue influence. The same Will has remaineduntil the date of filing of application for revocation. No acceptable explanation is offered for such a huge delay of 31 years in approaching the Court for cancellation or revocation of grant of probate.
|
Jagtar Singh & Others Vs. State of Punjab & Others | already been effected on the lines laid down in the directive of the Registrar of Co-operative Societies dated October 13, 1962, followed up by the joint seniority list as published on March 1, 1963, the Central Government had no authority to issue the directive so as to affect the list already drawn up or the principles on which it was drawn up. Counsel for the third respondent referred to the decisions in A. J. Patel and others v. State of Gujarat and others, A.I.R. 1965 Guj. 23, and K. C. Gupta and other v. Union of India and others, A.I.R. 1969 Punj. & Har. 34, in support of the contention that the State Government had concurrent power to integrate the services of the two two States. In M. A. Jaleel and others v. The State of Mysore and others, A.I.R. 1961 Mys. 210, the High Court of Mysore took the view that the Central Government alone has authority to integrate the services of States on their reorganisation under the States Reorganisation Act, 1956. This Court, after noting the conflict of opinion on the point among the High Courts in Union of India and another v. P. K. Roy and others, (1968) 2 S.C.R. 186, left open the question. We do not think that on the facts of this case it is necessary to resolve the conflict, as the State Government had no case that they were not bound by the directive of the Central Government in the matter of the integration of services here. Counsel for the State of Punjab brought to our attention the contents of the return filed by the State in Civil Writ 2896 of 1965 where the Punjab Services Integration Rules, 1957, were challenged as recited in the judgment of the Punjab High Court in K. C. Gupta and others v. Union of India and others, A.I.R. 1969 Punj. & Har. 34. There the State of Punjab contended that these rules were made in accordance with the advice of the Central Government and that in applying the Rules the State Government was subject to the directions which the Government of India might issue under S.117 of the Act. Quite apart from this, S.117 of the States Reorganisation Act, 1956, seems to us to be quite clear. The section reads"117. Power of Central Government to give directions : The Central Government may at any time before or after the appointed day give such directions to any State Government as may appear to it to be necessary for the purpose of giving effect to the foregoing provisions of this part and the State Government shall comply with such directions".9. In Dr. N. Desaiah and others v. Government of Andhra Pradesh and others, A.I.R. 1968 A.P. 5, it was held that the direction given by the Central Government under S.117 of the States Reorganisation Act was binding on the State Government in the matter of integration of services. See also Roshan Lal Sharma v. Union of India and others, A.I.R. 1968 Punj. 47, where the same view was taken. So we held that the directive of the Central Government was binding on the State Government in the matter of integrating the two services and the State of Punjab or the Registrar of Co-operative Societies of that State could not have said that they will not review the promotions made before 12th April, 1962, as the directive of the Central Government required that all promotions after February 27, 1961, should be reviewed.10. The third respondent who complained that he was shown as junior to the appellants in the lists published on 11-3-1966 and 20-3-1970 whereas as a matter of fact he was senior to them never filed any objection or representation to the provisional gradation list issued by the Services Integration Department on 9-3-1964. The explanation given by him for not filling any objection to the list, namely, that the Registrar of Co-operative Societies in his communication dated 7-12-64 did not insist upon objections being filed to the list, does not carry conviction as by the communication dated 9-3-1964, the Registrar had required that representations should be filed within one month of the publication of the provisional gradation list. That time had already expired when the Registrar issued the communication dated 7-12-1964. In these circumstances we do not think the High Court was justified in quashing the lists published on 11-3-1966 and 20-3-1970 on the basis of the provisional integrated gradation list published by the Integration Department on 9-3-1964.11. The appellants prayer in their writ petition was for a direction to the State of Punjab and the Registrar of Co-operative Societies, respondents 1 and 2, to implement cl. 4 of the directive of the Central Government issued on April 18, 1965. In effect their prayer was that their pay should be fixed at the stage which they would have attained in the time scale of higher posts had they been promoted to those posts on the date set out in cl. 3 of the directive; cl. 3 stated that their seniority should be counted from the date on which their juniors started continuous officiation in the higher posts because of their promotion under provisional gradation lists. As already stated, the High Court no occasion to consider the question whether this prayer could be granted, as it held that the directive of the Central Government had no controlling operation in respect of the integration of the services in question. We see no reason to deny the appellants the benefit cl. 4 of the directive. But we have no material before us to show when the third respondent or the other juniors of the appellants were promoted on the basis of provisional gradation list. We would, in the circumstances, direct the 1st respondent, the State of Punjab, to implement cl. 4 of the directive of the Central Government dated April 18, 1965, after considering the factual position of each of the appellant whether he was qualified for the benefit of the clause. | 1[ds]7. We think that the approach of the High Court to the question was totally misconceived. There was no integration of the services by the creation of divisional cadre of junior and senior clerks in the Pepsu area or by the continuance of the divisional pattern in the two integrating units after November 1, 1956. The High Court went wrong in assuming that the decision of the Government to constitute a single cadre of junior and senior clerks in divisional offices as well as in the office of the Registrar ofSocieties was not taken under the Punjab Services Integration Rules, 1957, and under the State Reorganisation Act, but by way of reorganisation of the clerical services of the department as an administrative measure. If this argument is correct, it is difficult to understand why the joint seniority list issued on March 1, 1963, in pursuance of the directive of the Registrar ofSocieties dated October 13, 1962, was passed on to the Services Integration Department. The fact of the matter is that there was no integration by reason of the creation of the divisional cadre of clerks and head clerks in the Pepsu State or by the continuance of the divisional pattern in the two integrating unites after November 1, 1956. The integration of the services in question of the two States was attempted to be effected only by drawing up the joint seniority list issued on March 1, 1963.The third respondent who complained that he was shown as junior to the appellants in the lists published on70 whereas as a matter of fact he was senior to them never filed any objection or representation to the provisional gradation list issued by the Services Integration Department onThe explanation given by him for not filling any objection to the list, namely, that the Registrar ofSocieties in his communication dateddid not insist upon objections being filed to the list, does not carry conviction as by the communication datedthe Registrar had required that representations should be filed within one month of the publication of the provisional gradation list. That time had already expired when the Registrar issued the communication datedIn these circumstances we do not think the High Court was justified in quashing the lists published onThe appellants prayer in their writ petition was for a direction to the State of Punjab and the Registrar ofSocieties, respondents 1 and 2, to implement cl. 4 of the directive of the Central Government issued on April 18, 1965. In effect their prayer was that their pay should be fixed at the stage which they would have attained in the time scale of higher posts had they been promoted to those posts on the date set out in cl. 3 of the directive; cl. 3 stated that their seniority should be counted from the date on which their juniors started continuous officiation in the higher posts because of their promotion under provisional gradation lists. As already stated, the High Court no occasion to consider the question whether this prayer could be granted, as it held that the directive of the Central Government had no controlling operation in respect of the integration of the services in question. We see no reason to deny the appellants the benefit cl. 4 of the directive. But we have no material before us to show when the third respondent or the other juniors of the appellants were promoted on the basis of provisional gradation list. We would, in the circumstances, direct the 1st respondent, the State of Punjab, to implement cl. 4 of the directive of the Central Government dated April 18, 1965, after considering the factual position of each of the appellant whether he was qualified for the benefit of the clause | 1 | 3,229 | 668 | ### 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:
already been effected on the lines laid down in the directive of the Registrar of Co-operative Societies dated October 13, 1962, followed up by the joint seniority list as published on March 1, 1963, the Central Government had no authority to issue the directive so as to affect the list already drawn up or the principles on which it was drawn up. Counsel for the third respondent referred to the decisions in A. J. Patel and others v. State of Gujarat and others, A.I.R. 1965 Guj. 23, and K. C. Gupta and other v. Union of India and others, A.I.R. 1969 Punj. & Har. 34, in support of the contention that the State Government had concurrent power to integrate the services of the two two States. In M. A. Jaleel and others v. The State of Mysore and others, A.I.R. 1961 Mys. 210, the High Court of Mysore took the view that the Central Government alone has authority to integrate the services of States on their reorganisation under the States Reorganisation Act, 1956. This Court, after noting the conflict of opinion on the point among the High Courts in Union of India and another v. P. K. Roy and others, (1968) 2 S.C.R. 186, left open the question. We do not think that on the facts of this case it is necessary to resolve the conflict, as the State Government had no case that they were not bound by the directive of the Central Government in the matter of the integration of services here. Counsel for the State of Punjab brought to our attention the contents of the return filed by the State in Civil Writ 2896 of 1965 where the Punjab Services Integration Rules, 1957, were challenged as recited in the judgment of the Punjab High Court in K. C. Gupta and others v. Union of India and others, A.I.R. 1969 Punj. & Har. 34. There the State of Punjab contended that these rules were made in accordance with the advice of the Central Government and that in applying the Rules the State Government was subject to the directions which the Government of India might issue under S.117 of the Act. Quite apart from this, S.117 of the States Reorganisation Act, 1956, seems to us to be quite clear. The section reads"117. Power of Central Government to give directions : The Central Government may at any time before or after the appointed day give such directions to any State Government as may appear to it to be necessary for the purpose of giving effect to the foregoing provisions of this part and the State Government shall comply with such directions".9. In Dr. N. Desaiah and others v. Government of Andhra Pradesh and others, A.I.R. 1968 A.P. 5, it was held that the direction given by the Central Government under S.117 of the States Reorganisation Act was binding on the State Government in the matter of integration of services. See also Roshan Lal Sharma v. Union of India and others, A.I.R. 1968 Punj. 47, where the same view was taken. So we held that the directive of the Central Government was binding on the State Government in the matter of integrating the two services and the State of Punjab or the Registrar of Co-operative Societies of that State could not have said that they will not review the promotions made before 12th April, 1962, as the directive of the Central Government required that all promotions after February 27, 1961, should be reviewed.10. The third respondent who complained that he was shown as junior to the appellants in the lists published on 11-3-1966 and 20-3-1970 whereas as a matter of fact he was senior to them never filed any objection or representation to the provisional gradation list issued by the Services Integration Department on 9-3-1964. The explanation given by him for not filling any objection to the list, namely, that the Registrar of Co-operative Societies in his communication dated 7-12-64 did not insist upon objections being filed to the list, does not carry conviction as by the communication dated 9-3-1964, the Registrar had required that representations should be filed within one month of the publication of the provisional gradation list. That time had already expired when the Registrar issued the communication dated 7-12-1964. In these circumstances we do not think the High Court was justified in quashing the lists published on 11-3-1966 and 20-3-1970 on the basis of the provisional integrated gradation list published by the Integration Department on 9-3-1964.11. The appellants prayer in their writ petition was for a direction to the State of Punjab and the Registrar of Co-operative Societies, respondents 1 and 2, to implement cl. 4 of the directive of the Central Government issued on April 18, 1965. In effect their prayer was that their pay should be fixed at the stage which they would have attained in the time scale of higher posts had they been promoted to those posts on the date set out in cl. 3 of the directive; cl. 3 stated that their seniority should be counted from the date on which their juniors started continuous officiation in the higher posts because of their promotion under provisional gradation lists. As already stated, the High Court no occasion to consider the question whether this prayer could be granted, as it held that the directive of the Central Government had no controlling operation in respect of the integration of the services in question. We see no reason to deny the appellants the benefit cl. 4 of the directive. But we have no material before us to show when the third respondent or the other juniors of the appellants were promoted on the basis of provisional gradation list. We would, in the circumstances, direct the 1st respondent, the State of Punjab, to implement cl. 4 of the directive of the Central Government dated April 18, 1965, after considering the factual position of each of the appellant whether he was qualified for the benefit of the clause.
### Response:
1
### Explanation:
7. We think that the approach of the High Court to the question was totally misconceived. There was no integration of the services by the creation of divisional cadre of junior and senior clerks in the Pepsu area or by the continuance of the divisional pattern in the two integrating units after November 1, 1956. The High Court went wrong in assuming that the decision of the Government to constitute a single cadre of junior and senior clerks in divisional offices as well as in the office of the Registrar ofSocieties was not taken under the Punjab Services Integration Rules, 1957, and under the State Reorganisation Act, but by way of reorganisation of the clerical services of the department as an administrative measure. If this argument is correct, it is difficult to understand why the joint seniority list issued on March 1, 1963, in pursuance of the directive of the Registrar ofSocieties dated October 13, 1962, was passed on to the Services Integration Department. The fact of the matter is that there was no integration by reason of the creation of the divisional cadre of clerks and head clerks in the Pepsu State or by the continuance of the divisional pattern in the two integrating unites after November 1, 1956. The integration of the services in question of the two States was attempted to be effected only by drawing up the joint seniority list issued on March 1, 1963.The third respondent who complained that he was shown as junior to the appellants in the lists published on70 whereas as a matter of fact he was senior to them never filed any objection or representation to the provisional gradation list issued by the Services Integration Department onThe explanation given by him for not filling any objection to the list, namely, that the Registrar ofSocieties in his communication dateddid not insist upon objections being filed to the list, does not carry conviction as by the communication datedthe Registrar had required that representations should be filed within one month of the publication of the provisional gradation list. That time had already expired when the Registrar issued the communication datedIn these circumstances we do not think the High Court was justified in quashing the lists published onThe appellants prayer in their writ petition was for a direction to the State of Punjab and the Registrar ofSocieties, respondents 1 and 2, to implement cl. 4 of the directive of the Central Government issued on April 18, 1965. In effect their prayer was that their pay should be fixed at the stage which they would have attained in the time scale of higher posts had they been promoted to those posts on the date set out in cl. 3 of the directive; cl. 3 stated that their seniority should be counted from the date on which their juniors started continuous officiation in the higher posts because of their promotion under provisional gradation lists. As already stated, the High Court no occasion to consider the question whether this prayer could be granted, as it held that the directive of the Central Government had no controlling operation in respect of the integration of the services in question. We see no reason to deny the appellants the benefit cl. 4 of the directive. But we have no material before us to show when the third respondent or the other juniors of the appellants were promoted on the basis of provisional gradation list. We would, in the circumstances, direct the 1st respondent, the State of Punjab, to implement cl. 4 of the directive of the Central Government dated April 18, 1965, after considering the factual position of each of the appellant whether he was qualified for the benefit of the clause
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PAPPU ALIAS SURENDRA Vs. STATE OF M.P., (S.C.) | Rohinton Fali Nariman, J. - Leave granted. 2. In the present case, the appellant has been convicted for the murder of one Chotebir. After examining the injured witnesses including the deceaseds wife, brother and PW3, based only on the testimony of PW3, both the courts below held that the appellant is guilty of murder and life imprisonment given for the same by the Trial Court was confirmed by the High Court. It needs to be stated here that PW3 is the only person, being a cousin of the deceased, who stated that he actually saw the appellant murdering the deceased. However, he was declared hostile by the prosecution, after which, in cross-examination, he stated as follows: Chotebir was the son of my real uncle. At the moment of occurrence of the incident, I and Chotebir were talking with each other while having heads downward. My attention was drawn towards when Chotebir fell down. I neither saw the accused coming nor I could see him assaulting Chotebir. I saw Chotebir falling and saw the accused Pappu escaping from there when he was at distance equal to the vacant place in this Court. About 30-40 feet away, as has been mentioned by the learned counsels appearing for the parties. I saw the accused from behind when he was escaping. 3. Learned counsel appearing on behalf of the State of M.P. has persuasively argued this case, and has submitted to us that there are several judgments of this Court in which it is clear that even though a witness may be declared hostile, the first part of his testimony, if otherwise reliable, can be relied upon. There is no quarrel with the aforesaid proposition. The only problem in this case is that to convict a person solely on the basis of the testimony of a witness, who is not independent, in the sense of being a cousin of the deceased, and who has made a 360 degree turn around becomes very difficult. It may be added that no other witness claimed to have seen the appellant actually murdering the deceased. Recovery of an axe from the appellant was not proved, despite the fact that an axe with blood upon it was recovered. It was fairly stated that the dying declaration which was allegedly made was correctly shot down by the Trial Court. | 1[ds]There is no quarrel with the aforesaid proposition. The only problem in this case is that to convict a person solely on the basis of the testimony of a witness, who is not independent, in the sense of being a cousin of the deceased, and who has made a 360 degree turn around becomes very difficult. It may be added that no other witness claimed to have seen the appellant actually murdering the deceased. Recovery of an axe from the appellant was not proved, despite the fact that an axe with blood upon it was recovered. It was fairly stated that the dying declaration which was allegedly made was correctly shot down by the Trial Court. | 1 | 432 | 129 | ### Instruction:
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Rohinton Fali Nariman, J. - Leave granted. 2. In the present case, the appellant has been convicted for the murder of one Chotebir. After examining the injured witnesses including the deceaseds wife, brother and PW3, based only on the testimony of PW3, both the courts below held that the appellant is guilty of murder and life imprisonment given for the same by the Trial Court was confirmed by the High Court. It needs to be stated here that PW3 is the only person, being a cousin of the deceased, who stated that he actually saw the appellant murdering the deceased. However, he was declared hostile by the prosecution, after which, in cross-examination, he stated as follows: Chotebir was the son of my real uncle. At the moment of occurrence of the incident, I and Chotebir were talking with each other while having heads downward. My attention was drawn towards when Chotebir fell down. I neither saw the accused coming nor I could see him assaulting Chotebir. I saw Chotebir falling and saw the accused Pappu escaping from there when he was at distance equal to the vacant place in this Court. About 30-40 feet away, as has been mentioned by the learned counsels appearing for the parties. I saw the accused from behind when he was escaping. 3. Learned counsel appearing on behalf of the State of M.P. has persuasively argued this case, and has submitted to us that there are several judgments of this Court in which it is clear that even though a witness may be declared hostile, the first part of his testimony, if otherwise reliable, can be relied upon. There is no quarrel with the aforesaid proposition. The only problem in this case is that to convict a person solely on the basis of the testimony of a witness, who is not independent, in the sense of being a cousin of the deceased, and who has made a 360 degree turn around becomes very difficult. It may be added that no other witness claimed to have seen the appellant actually murdering the deceased. Recovery of an axe from the appellant was not proved, despite the fact that an axe with blood upon it was recovered. It was fairly stated that the dying declaration which was allegedly made was correctly shot down by the Trial Court.
### Response:
1
### Explanation:
There is no quarrel with the aforesaid proposition. The only problem in this case is that to convict a person solely on the basis of the testimony of a witness, who is not independent, in the sense of being a cousin of the deceased, and who has made a 360 degree turn around becomes very difficult. It may be added that no other witness claimed to have seen the appellant actually murdering the deceased. Recovery of an axe from the appellant was not proved, despite the fact that an axe with blood upon it was recovered. It was fairly stated that the dying declaration which was allegedly made was correctly shot down by the Trial Court.
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State of Bihar & Another Vs. Arvind Kumar & Another | to clause 6(a) of the Public Distribution System (Control) Order, 2001 issued under Section 3 of the EC Act. Respondent also referred to the said Control Order 2001 in Para 3 of the Crl.W.J.C. No. 215 of 2011 filed by them. More so, the question of ownership of the goods seized is a question of fact which ought not to have been gone into by the High Court in its revisional or extra-ordinary jurisdiction. Further, there is nothing on record on the basis of which the issue of ownership has been decided by the High Court. There was no cogent material on record before the High Court on the basis of which direction to release the goods so seized could be issued. We are at pains to observe that the High Court has dealt with the issue in most casual and caviler manner without any application of mind showing complete disregard of the legislature enacting the provisions for general welfare. 9. This Court while dealing with a similar issue in Shambhu Dayal Agarwala v. State of West Bengal & Anr., (1990) 3 SCC 549 , held that whenever any essential commodity is seized, pending confiscation under Section 6-A, the Collector has no power to order release of the commodity in favour of the owner. Having regard to the scheme of the Act, the object and purpose of the statute and the mischief it seeks to guard, it was further held that the word “release” in Section 6-E is used in the limited sense of release for sale etc. so that the same becomes available to the consumer public. The court held as under: “… No unqualified and unrestricted power has been conferred on the Collector of releasing the commodity in the sense of returning it to the owner or person from whom it was seized even before the proceeding for confiscation stood completed and before the termination of the prosecution in the acquittal of the offender. Such a view would render Clause (b) of Section 7(1) totally nugatory and would completely defeat the purpose and object of the Act. The view that the Act itself contemplates a situation which would render Section 7(1)(b) otiose where the essential commodity is disposed of by the Collector under Section 6-A(2) is misconceived. Section 6-A does not empower the Collector to give an option to pay, in lieu of confiscation of essential commodity, a fine not exceeding the market value of the commodity on the date of seizure, as in the case of any animal, vehicle, vessel or other conveyance seized along with the essential commodity. Only a limited power of sale of the commodity in the manner prescribed by Section 6-A(2) is granted. The power conferred by Section 6- A(2) to sell the essential commodity has to be exercised in public interest for maintaining the supplies and for securing the equitable distribution of the essential commodity.” The said judgment was followed and approved by this Court after explaining the scope of the statutory provisions in Oma Ram v. State of Rajasthan & Ors., (2008) 5 SCC 502. 10. What we found shocking in the instant case is that the petition was filed before the High Court for quashing of the FIR and alternatively for releasing the seized items and the High Court without giving any reason whatsoever disposed of the petition observing as under: “Considering the submissions of the parties, in the opinion of the court, continuing the seizure of the seized items for a long time may not be justified at least the seizure of the wheat.” This is the only reason given by the High Court without even considering what were the averments on behalf of the parties and without considering the requirement of the statutory provisions. 11. In the subsequent order dealing with the ownership of the wheat the High Court has only taken note of the fact that as the respondents herein were prepared to furnish adequate/sufficient security to the satisfaction of the court below for release of the wheat in question, the wheat could have been released by the CJM. In case the learned CJM came to the conclusion after appreciating the evidence on record that the respondents/applicants were not in a position to show any document which may show their ownership to the wheat, there was no justification for the High Court to issue directions for release of such material merely because applicant could furnish the security. If it is so, any stranger or third party may give sufficient security and get the seized goods release in his favour. Such a course is not permissible even while deciding the application under Section 451/457 of the Code of Criminal Procedure, 1973. A person having no title/ownership over the seized material may get the same released on furnishing security and sell it in black market and earn profit several times more than the amount of security furnished by him. We fail to understand as how such an order of release which defeat the very purpose for which the EC Act was enacted, could be passed.12. The High Court has totally ignored the fact that any order passed under Section 6-A is appealable under Section 6-C of the EC Act. Therefore, to consider such an application for release of the goods was totally unwarranted at least at that stage. 13. In Manish Goel v. Rohini Goel, AIR 2010 SC 1099 , this Court has held that generally, no Court has competence to issue a direction contrary to law nor the Court can direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law. (See also: Vice Chancellor, University of Allahabad & Ors. v. Dr. Anand Prakash Mishra & Ors., (1997) 10 SCC 264 ; and Karnataka State Road Transport Corporation v. Ashrafulla Khan & Ors., AIR 2002 SC 629 ). 14. Learne | 1[ds]11. In the subsequent order dealing with the ownership of the wheat the High Court has only taken note of the fact that as the respondents herein were prepared to furnish adequate/sufficient security to the satisfaction of the court below for release of the wheat in question, the wheat could have been released by the CJM. In case the learned CJM came to the conclusion after appreciating the evidence on record that the respondents/applicants were not in a position to show any document which may show their ownership to the wheat, there was no justification for the High Court to issue directions for release of such material merely because applicant could furnish theit is so, any stranger or third party may give sufficient security and get the seized goods release in his favour. Such a course is not permissible even while deciding the application under Section 451/457 of the Code of Criminal Procedure, 1973. A person having no title/ownership over the seized material may get the same released on furnishing security and sell it in black market and earn profit several times more than the amount of security furnished by him. We fail to understand as how such an order of release which defeat the very purpose for which the EC Act was enacted, could be passed.12. The High Court has totally ignored the fact that any order passed under Section 6-A is appealable under Section 6-C of the EC Act. Therefore, to consider such an application for release of the goods was totally unwarranted at least at that stage.Learned counsel for the parties are not in a position to reveal the status of the criminal proceedings initiated against the respondents. In such a fact-situation, as has been suggested by learned counsel for the parties we set aside the aforesaid judgments and orders dated 15.3.2011 and 29.4.2011 and remand the case back to the High Court to consider afresh after examining all factual and legal issues involved in the case. Till the disposal of the case afresh, interim order passed by this Court on 31.10.2011 shall remain operative. | 1 | 2,064 | 370 | ### Instruction:
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to clause 6(a) of the Public Distribution System (Control) Order, 2001 issued under Section 3 of the EC Act. Respondent also referred to the said Control Order 2001 in Para 3 of the Crl.W.J.C. No. 215 of 2011 filed by them. More so, the question of ownership of the goods seized is a question of fact which ought not to have been gone into by the High Court in its revisional or extra-ordinary jurisdiction. Further, there is nothing on record on the basis of which the issue of ownership has been decided by the High Court. There was no cogent material on record before the High Court on the basis of which direction to release the goods so seized could be issued. We are at pains to observe that the High Court has dealt with the issue in most casual and caviler manner without any application of mind showing complete disregard of the legislature enacting the provisions for general welfare. 9. This Court while dealing with a similar issue in Shambhu Dayal Agarwala v. State of West Bengal & Anr., (1990) 3 SCC 549 , held that whenever any essential commodity is seized, pending confiscation under Section 6-A, the Collector has no power to order release of the commodity in favour of the owner. Having regard to the scheme of the Act, the object and purpose of the statute and the mischief it seeks to guard, it was further held that the word “release” in Section 6-E is used in the limited sense of release for sale etc. so that the same becomes available to the consumer public. The court held as under: “… No unqualified and unrestricted power has been conferred on the Collector of releasing the commodity in the sense of returning it to the owner or person from whom it was seized even before the proceeding for confiscation stood completed and before the termination of the prosecution in the acquittal of the offender. Such a view would render Clause (b) of Section 7(1) totally nugatory and would completely defeat the purpose and object of the Act. The view that the Act itself contemplates a situation which would render Section 7(1)(b) otiose where the essential commodity is disposed of by the Collector under Section 6-A(2) is misconceived. Section 6-A does not empower the Collector to give an option to pay, in lieu of confiscation of essential commodity, a fine not exceeding the market value of the commodity on the date of seizure, as in the case of any animal, vehicle, vessel or other conveyance seized along with the essential commodity. Only a limited power of sale of the commodity in the manner prescribed by Section 6-A(2) is granted. The power conferred by Section 6- A(2) to sell the essential commodity has to be exercised in public interest for maintaining the supplies and for securing the equitable distribution of the essential commodity.” The said judgment was followed and approved by this Court after explaining the scope of the statutory provisions in Oma Ram v. State of Rajasthan & Ors., (2008) 5 SCC 502. 10. What we found shocking in the instant case is that the petition was filed before the High Court for quashing of the FIR and alternatively for releasing the seized items and the High Court without giving any reason whatsoever disposed of the petition observing as under: “Considering the submissions of the parties, in the opinion of the court, continuing the seizure of the seized items for a long time may not be justified at least the seizure of the wheat.” This is the only reason given by the High Court without even considering what were the averments on behalf of the parties and without considering the requirement of the statutory provisions. 11. In the subsequent order dealing with the ownership of the wheat the High Court has only taken note of the fact that as the respondents herein were prepared to furnish adequate/sufficient security to the satisfaction of the court below for release of the wheat in question, the wheat could have been released by the CJM. In case the learned CJM came to the conclusion after appreciating the evidence on record that the respondents/applicants were not in a position to show any document which may show their ownership to the wheat, there was no justification for the High Court to issue directions for release of such material merely because applicant could furnish the security. If it is so, any stranger or third party may give sufficient security and get the seized goods release in his favour. Such a course is not permissible even while deciding the application under Section 451/457 of the Code of Criminal Procedure, 1973. A person having no title/ownership over the seized material may get the same released on furnishing security and sell it in black market and earn profit several times more than the amount of security furnished by him. We fail to understand as how such an order of release which defeat the very purpose for which the EC Act was enacted, could be passed.12. The High Court has totally ignored the fact that any order passed under Section 6-A is appealable under Section 6-C of the EC Act. Therefore, to consider such an application for release of the goods was totally unwarranted at least at that stage. 13. In Manish Goel v. Rohini Goel, AIR 2010 SC 1099 , this Court has held that generally, no Court has competence to issue a direction contrary to law nor the Court can direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law. (See also: Vice Chancellor, University of Allahabad & Ors. v. Dr. Anand Prakash Mishra & Ors., (1997) 10 SCC 264 ; and Karnataka State Road Transport Corporation v. Ashrafulla Khan & Ors., AIR 2002 SC 629 ). 14. Learne
### Response:
1
### Explanation:
11. In the subsequent order dealing with the ownership of the wheat the High Court has only taken note of the fact that as the respondents herein were prepared to furnish adequate/sufficient security to the satisfaction of the court below for release of the wheat in question, the wheat could have been released by the CJM. In case the learned CJM came to the conclusion after appreciating the evidence on record that the respondents/applicants were not in a position to show any document which may show their ownership to the wheat, there was no justification for the High Court to issue directions for release of such material merely because applicant could furnish theit is so, any stranger or third party may give sufficient security and get the seized goods release in his favour. Such a course is not permissible even while deciding the application under Section 451/457 of the Code of Criminal Procedure, 1973. A person having no title/ownership over the seized material may get the same released on furnishing security and sell it in black market and earn profit several times more than the amount of security furnished by him. We fail to understand as how such an order of release which defeat the very purpose for which the EC Act was enacted, could be passed.12. The High Court has totally ignored the fact that any order passed under Section 6-A is appealable under Section 6-C of the EC Act. Therefore, to consider such an application for release of the goods was totally unwarranted at least at that stage.Learned counsel for the parties are not in a position to reveal the status of the criminal proceedings initiated against the respondents. In such a fact-situation, as has been suggested by learned counsel for the parties we set aside the aforesaid judgments and orders dated 15.3.2011 and 29.4.2011 and remand the case back to the High Court to consider afresh after examining all factual and legal issues involved in the case. Till the disposal of the case afresh, interim order passed by this Court on 31.10.2011 shall remain operative.
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Paint Employees Union Vs. Kansai Nerolac Paints Limited | not possible for any one to contest the proposition that a wrong concession made by a party or its advocate on a statutory provision cannot bind them. However, in our opinion, facts of this case are different. We are not concerned here with merely a concession made by a counsel. The appellant union took a stand that under Section 25-O(5), the Specified Authority can review its order and also make a reference and that the Specified Authority had in fact reviewed its order on the basis of judgment of this court in Cable Corporations case which held the field at that time. We have already noted that this legal stand of the appellant union is reflected in its arguments filed before the Tribunal and in its affidavit-in-reply filed in this court. Thus the concession flows from the pleadings of the parties. The appellant union accepted the factual existence of a valid review order and thereafter sought to defend its stand on the basis of this courts judgment in Cable Corporations case. After the Supreme Court set aside this courts judgment in Cable Corporations case the appellant-Union is trying to contend that such statement was never made. In any case it is pertinent to note that in Commissioner of Endowments case (supra) the Supreme Court has observed that a party may resile from a concession of law but it cannot call in question the very fact of making the concession as recorded in the judgment. We may also mention that in Writ Petition No. 1794 of 2008 which is filed by the appellant union prior to the filing of this appeal, the appellant Union proceeded on the basis that there is a factual order of review. It only seeks to contend that the said order has been passed illegally. The conclusion is inevitable that the appellant union is adopting inconsistent stands and its conduct reflects on the credibility of its case.33. It is then submitted by Ms. Doshi that in Orissa Textiles case (supra) the Supreme Court found that the recast provision of Section 25-O after its amendment is constitutionally valid on various grounds including the ground as regards the provision specifically made for a review or a reference under Section 25-O (5). She submitted that by interpreting the order of the Specified Authority in the manner suggested by the respondent company, the workmen would be deprived of the said remedy which was found to be a necessary remedy by the Supreme Court.34. It is not possible to accept this argument. Undoubtedly the remedy of review or reference is a valuable remedy. But the legal position is clarified by the Supreme Court in Cable Corporations case (supra). The two remedies are alternative remedies. If review jurisdiction is exercised and review application is rejected then there can be no further order of reference. In this case there is no question of denial of remedy to the appellant union. The application of the appellant union has been considered by the Specified Authority and the Specified Authority has rejected it. The appellant union adopted the remedy available in law and the Specified Authority adjudicated the application. Once Specified Authority considers the application of the appellant union merely because the decision of the Specified Authority is against the appellant union it cannot contend that it was deprived of the valuable right of review. We have already concluded that the Specified Authority exercised its review jurisdiction and rejected the review application. The order of the Specified Authority cannot be interpreted in any other way. Any attempt made by us to interpret it differently would be doing violence to the law settled by the Supreme Court in Cable Corporations case (supra).35. Ms. Doshi submitted that in the reference made under Section 25-O(5) the Tribunal has in fact found that the reasons seeking permission to effect closure are neither genuine nor adequate and not in public interest. The Tribunal found that the termination orders issued to the workmen were illegal and that the workmen were entitled to wages and other benefits from 2/5/03 as they are deemed to have been continued in service. Ms. Doshi pointed out that the amount which the workmen are entitled to receive works out to approximately Rs.7.8 crores. Ms. Doshi submitted that while admitting the appeal this court has directed the respondent company to furnish security to the satisfaction of the Prothonotary & Senior Master of this court to protect the interest of the workmen. Learned counsel pointed out that the workmen are without job since 2003.36. Learned counsel further pointed out that after the rejection of the reference the respondent company has purported to effect the closure vide its notice dated 20/6/07 without prejudice to the earlier closure. Ms. Doshi submitted that when the reference was made this courts judgment in Cable Corporations case (supra) was holding the field and, therefore, the reference made in the light of that judgment was legal. Learned Counsel urged that it is necessary to adjudicate the legality and propriety of the award dated 5/5/07 made by the Tribunal on merits because in the proceedings initiated by the appellant union challenging the purported closure as per the notice dated 20/6/07 the legality and propriety of the closure effected in 2003 cannot be gone into by the Industrial Court.37. We are not impressed by this submission. The Tribunal made its award pursuant to the Specified Authoritys order dated 24/4/03. Once that order is found to be illegal, the award must fall to the ground. This is a settled legal position which cannot be overlooked. If the award goes, the consequences must follow. The argument that the reference order is in consonance with this courts judgment in Cable Corporations case which held the field at that time and, therefore, the reference is legally valid is fallacious. The legal position has been clarified by the Supreme Court now and what preceded the reference order must be examined in the light of the Supreme Courts judgment in Cable Corporations case (supra). | 0[ds]20. It is now necessary to refer to the facts of this case. The appellant union has prayed in its application that the Specified Authority may review its order dated 27/3/03 granting permission to close down the Lower Parel unit or in the alternative it may refer the matter to the Industrial Tribunal. In the words of Ms. Doshi counsel appearing for the appellant union it is a consolidated application seeking a review or a reference under SectionMs. Doshi argued that in the case of a consolidated application the Specified Authority has to either say yes to one prayer and no to another prayer. She submitted that in this case the Specified Authority has decided to refer the case. There is no categoric rejection of the review application. It has decided to choose one option i.e. to refer the matter to the Industrial Tribunal. Ms. Doshi submitted that one cannot read one observation made by the Specified Authority in isolation thereby ignoring the final conclusion reached by it to refer the matter. Ms. Doshi submitted that while considering application under Sectionthe Specified Authority has to consider the same factors which it has to consider while deciding an application under Sectionseeking permission to close down an undertaking i.e. (a) whether the reasons are genuine (b) whether the reasons are adequate (c) whether granting permission is in general public interest and (d) other relevant factors. She submitted that in this case the Specified Authority has not categorically rejected the application. It has stated that it was of the opinion that judicial scrutiny is required and has referred the matter for adjudication. There is no finality to its order in the sense that the order indicates that the Specified Authority was of the opinion that since judicial scrutiny is required there is no need to review the order. Mr. Cama, learned counsel for the respondent company on the other hand relied on Cable Corporation case (supra) and submitted that the above argument of Ms. Doshi must be rejected in view thereof. Relying on the Supreme Courts judgment in National Insurance Co. Ltd. v. MastanAnr. (2006) 2 SCC 641 , Mr. Cama submitted that a party must in law elect one of the two available remedies. If it does not expressly elect in its application as to whether it seeks a review or a reference it runs the risk of the Government taking up the matter by way of a review and by rejection thereof precluding an order of reference.21. It is difficult to accept the submission of Ms. Doshi that since the application was a composite application, the Specified Authority has to say yes to one prayer and no to other. This view will run counter to the authoritative pronouncement of the Supreme Court in Cable Corporations case (supra). At the cost of repetition, it must be stated that in that judgment the Supreme Court has referred to its judgment in Fakir Mohd. (dead) by Lrs. v. Sita Rani, 2002 (1) SCC 741 , where it was held that the word or is normally disjunctive. The use of the word or in a statute manifests the legislative intention of the alternatives prescribed under law. The Supreme Court has observed that had the legislature intended that the reference could be made after the Specified Authority deals with the review power, it would have said so specifically by specific words. It could have provided for a direct reference. These observations of the Supreme Court make it clear that, if the Specified Authority exercises its review power it cannot make a reference. Now to ascertain whether the Specified Authoritys order is in consonance with the judgment of the Supreme Court in Cable Corporations case (supra) or not, it is necessary to quote the relevant paragraphs of the Specified Authoritys order dated 24/4/03. They read as under:"As regards various prayers made by the Applicant Union in the review and stay application, I have to state that there is no provision under Sectionof the Industrial Disputes Act, 1947 to grant such prayers, therefore, I am of the opinion that various prayers made by the Applicant Union cannot be granted. I am also of the opinion, that the Applicant Union has not made out a case for review of the order dated 27/3/2003."I have gone through the submissions made by both the parties in the instant matter and have come to the conclusion that the matter needs judicial scrutiny.Hence, I pass the following order:ORDERThe matter in the application dated 27/1/03 of M/s. Goodlas Nerolac Paints Ltd., Ganpatrao Kadam Marg, Lower Parel, Mumbai 400 013 under Sectionof the Industrial Disputes Act, 1947 seeking permission of closure of its Lower Parel Unit situated in the abovementioned address is hereby referred under Sectionof the said Act to the Industrial Tribunal, Mumbai consisting of Sou. S. V. Ayarekar."22. There is no dispute about the fact that the reference made by the Specified Authority in its order to various prayers made in the application and its observation that for those prayers there is no provision under Sectionof the said Act, relate to prayers regarding interim relief. The question is whether the sentence "I am also of the opinion, that the Applicant Union has not made out a case for review of the order dated 27/3/2003", should be read as rejection of the prayer for review or not. We have no doubt that when the Specified Authority expresses its opinion, that no case is made out for review, it exercises its jurisdiction to deal with the review application and rejects it. Merely because it does not categorically state that review application is rejected, it cannot be said that review application is not rejected. The opinion expressed by the Specified Authority is not worthless. The law contemplates that, if it expresses that in its opinion, no case for review is made out, the matter must end there. Once it expresses opinion, that no case for review is made out the application cannot be processed further. It is not possible to interpret this order to mean that the Specified Authority proceeded on the basis that since judicial scrutiny is required it need not review the order. In this case when the Specified Authority expresses that no case for review is made out, it is clear that it has applied its mind to the rival contentions which it has reproduced in detail and formed an opinion. It has dealt with the application. It has exercised its review jurisdiction and rejected it. The order is susceptible to no other inference.23. We must, however, record that in our opinion the doctrine of election has no application here and the reliance placed by Mr. Cama on National Insurance Cos case (supra) is totally misplaced. In that case the court was considering two remedies available to an injured workman to get compensation. He is entitled for compensation under the Workmens Compensation Act, 1923 and also under the Motor Vehicles Act, 1988. Under Section 167 of the Motor Vehicles Act, 1988 the aggrieved party has the option to elect either of them but not both. Observations of the Supreme Court will have to be read against the background of these facts. We are not concerned here with a provision akin to Section 167 of the Motor Vehicles Act, 1988. The said judgment has, therefore, no application to this case.24. It is pointed out by Mr. Cama that before the Tribunal, the appellant union had conceded that the Specified Authority had decided the review application on merits. This is recorded by the Tribunal in its order. In the impugned order learned Single Judge has also said so. Mr. Cama submitted that the appellant union is estopped from taking a contrary stand now.25. It is pertinent to note that in the statement of claim filed by the respondent company in the reference which was decided by the Industrial Tribunal pursuant to the Specified Authoritys order dated 24/4/03, the respondent company clearly stated that the Specified Authority had rejected the review application, however, in view of the mandatory provision of Sectionof the said Act, the Specified Authority had referred the matter of permission for closure to the Tribunal. Even in its written arguments filed before the Tribunal, the respondent company specifically raised this contention. It is significant to note that the appellant union in its written arguments filed before the Tribunal stated that scope of sectionis akin to the powers of the Tribunal under Section 10 of the said Act and as such the Tribunal would have the same powers under Sectionof the said Act. Reliance was placed by the appellant union on the judgment of this court in Cable Corporations case. Obviously it is on this basis that the Tribunal observed in its award dated 29/4/03 that it was not disputed that the Specified Authority decided the review application on merits.26. It is equally important to note that in the affidavit in reply dated 6/9/07 filed in Writ Petition No.1332 of 2007, the appellant Union has reiterated the same submission. Reliance is placed on this courts judgment in Cable Corporations case. The point to note is that in paragraph 21 of the Tribunals award, the Tribunal has recorded that it is not disputed that the Specified Authority decided the review application on merits. In paragraph 6(1) of the affidavit in reply there is a reference to the said paragraph 21. However, it is not stated that the appellant union had not disputed that the review application was decided on merits. On the contrary it is stated that the contention raised by the respondent company that after hearing the review application on merits, the Specified Authority has no power to make reference has been rejected by the Tribunal and this finding cannot be characterized as misdirection in law on the part of the Tribunal. It appears that after considering the pleadings, more particularly the affidavit in reply filed by the appellant union and after hearing learned counsel for the parties, learned Single Judge has observed in the impugned order that it was not disputed before the Tribunal that the Specified Authority has decided the review application on merits. In our opinion, there is strong basis for the above observation made by the Tribunal as well as by learned Single Judge.It is well settled that if a party feels that any statement made by him or his counsel has been wrongly recorded in the judgment it has to approach the same learned Judge to get the order corrected. In State of Maharashtra v. Ramdas Shrinivas Nayak, 1982 (2) SCC 463 , the Supreme Court dealt with this point. We may quote the relevant observation of the Supreme Court."If a party thinks that the happening in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the judges, to call the attention of the very judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error (per Lord Buckmaster in Madhu Sudan Chowdhri v. Chandrabati Chowdhrain). That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an appellate court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but he may not call in question the very fact of making the concession as recorded in the judgment."29. The above judgment was followed by the Supreme Court in Commissioner of EndowmentsOrs. v. Vithal RaoOrs., (2005) 4 SCC 120. It was, therefore, necessary for learned counsel for the appellant union to approach learned Single Judge and get the order corrected. In fact we asked Ms. Doshi whether she wanted to approach learned Single Judge in this connection. However there was no positive response from her. In our opinion, this stand taken by the appellant union makes a dent in its case.In view of the law laid down by the Supreme Court in the above judgments, it is not possible for any one to contest the proposition that a wrong concession made by a party or its advocate on a statutory provision cannot bind them. However, in our opinion, facts of this case are different. We are not concerned here with merely a concession made by a counsel. The appellant union took a stand that under Sectionthe Specified Authority can review its order and also make a reference and that the Specified Authority had in fact reviewed its order on the basis of judgment of this court in Cable Corporations case which held the field at that time. We have already noted that this legal stand of the appellant union is reflected in its arguments filed before the Tribunal and in itsfiled in this court. Thus the concession flows from the pleadings of the parties. The appellant union accepted the factual existence of a valid review order and thereafter sought to defend its stand on the basis of this courts judgment in Cable Corporations case. After the Supreme Court set aside this courts judgment in Cable Corporations case theis trying to contend that such statement was never made. In any case it is pertinent to note that in Commissioner of Endowments case (supra) the Supreme Court has observed that a party may resile from a concession of law but it cannot call in question the very fact of making the concession as recorded in the judgment. We may also mention that in Writ Petition No. 1794 of 2008 which is filed by the appellant union prior to the filing of this appeal, the appellant Union proceeded on the basis that there is a factual order of review. It only seeks to contend that the said order has been passed illegally. The conclusion is inevitable that the appellant union is adopting inconsistent stands and its conduct reflects on the credibility of its case.It is not possible to accept this argument. Undoubtedly the remedy of review or reference is a valuable remedy. But the legal position is clarified by the Supreme Court in Cable Corporations case (supra). The two remedies are alternative remedies. If review jurisdiction is exercised and review application is rejected then there can be no further order of reference. In this case there is no question of denial of remedy to the appellant union. The application of the appellant union has been considered by the Specified Authority and the Specified Authority has rejected it. The appellant union adopted the remedy available in law and the Specified Authority adjudicated the application. Once Specified Authority considers the application of the appellant union merely because the decision of the Specified Authority is against the appellant union it cannot contend that it was deprived of the valuable right of review. We have already concluded that the Specified Authority exercised its review jurisdiction and rejected the review application. The order of the Specified Authority cannot be interpreted in any other way. Any attempt made by us to interpret it differently would be doing violence to the law settled by the Supreme Court in Cable Corporations case (supra).We are not impressed by this submission. The Tribunal made its award pursuant to the Specified Authoritys order dated 24/4/03. Once that order is found to be illegal, the award must fall to the ground. This is a settled legal position which cannot be overlooked. If the award goes, the consequences must follow. The argument that the reference order is in consonance with this courts judgment in Cable Corporations case which held the field at that time and, therefore, the reference is legally valid is fallacious. The legal position has been clarified by the Supreme Court now and what preceded the reference order must be examined in the light of the Supreme Courts judgment in Cable Corporations case (supra). | 0 | 6,430 | 2,924 | ### Instruction:
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not possible for any one to contest the proposition that a wrong concession made by a party or its advocate on a statutory provision cannot bind them. However, in our opinion, facts of this case are different. We are not concerned here with merely a concession made by a counsel. The appellant union took a stand that under Section 25-O(5), the Specified Authority can review its order and also make a reference and that the Specified Authority had in fact reviewed its order on the basis of judgment of this court in Cable Corporations case which held the field at that time. We have already noted that this legal stand of the appellant union is reflected in its arguments filed before the Tribunal and in its affidavit-in-reply filed in this court. Thus the concession flows from the pleadings of the parties. The appellant union accepted the factual existence of a valid review order and thereafter sought to defend its stand on the basis of this courts judgment in Cable Corporations case. After the Supreme Court set aside this courts judgment in Cable Corporations case the appellant-Union is trying to contend that such statement was never made. In any case it is pertinent to note that in Commissioner of Endowments case (supra) the Supreme Court has observed that a party may resile from a concession of law but it cannot call in question the very fact of making the concession as recorded in the judgment. We may also mention that in Writ Petition No. 1794 of 2008 which is filed by the appellant union prior to the filing of this appeal, the appellant Union proceeded on the basis that there is a factual order of review. It only seeks to contend that the said order has been passed illegally. The conclusion is inevitable that the appellant union is adopting inconsistent stands and its conduct reflects on the credibility of its case.33. It is then submitted by Ms. Doshi that in Orissa Textiles case (supra) the Supreme Court found that the recast provision of Section 25-O after its amendment is constitutionally valid on various grounds including the ground as regards the provision specifically made for a review or a reference under Section 25-O (5). She submitted that by interpreting the order of the Specified Authority in the manner suggested by the respondent company, the workmen would be deprived of the said remedy which was found to be a necessary remedy by the Supreme Court.34. It is not possible to accept this argument. Undoubtedly the remedy of review or reference is a valuable remedy. But the legal position is clarified by the Supreme Court in Cable Corporations case (supra). The two remedies are alternative remedies. If review jurisdiction is exercised and review application is rejected then there can be no further order of reference. In this case there is no question of denial of remedy to the appellant union. The application of the appellant union has been considered by the Specified Authority and the Specified Authority has rejected it. The appellant union adopted the remedy available in law and the Specified Authority adjudicated the application. Once Specified Authority considers the application of the appellant union merely because the decision of the Specified Authority is against the appellant union it cannot contend that it was deprived of the valuable right of review. We have already concluded that the Specified Authority exercised its review jurisdiction and rejected the review application. The order of the Specified Authority cannot be interpreted in any other way. Any attempt made by us to interpret it differently would be doing violence to the law settled by the Supreme Court in Cable Corporations case (supra).35. Ms. Doshi submitted that in the reference made under Section 25-O(5) the Tribunal has in fact found that the reasons seeking permission to effect closure are neither genuine nor adequate and not in public interest. The Tribunal found that the termination orders issued to the workmen were illegal and that the workmen were entitled to wages and other benefits from 2/5/03 as they are deemed to have been continued in service. Ms. Doshi pointed out that the amount which the workmen are entitled to receive works out to approximately Rs.7.8 crores. Ms. Doshi submitted that while admitting the appeal this court has directed the respondent company to furnish security to the satisfaction of the Prothonotary & Senior Master of this court to protect the interest of the workmen. Learned counsel pointed out that the workmen are without job since 2003.36. Learned counsel further pointed out that after the rejection of the reference the respondent company has purported to effect the closure vide its notice dated 20/6/07 without prejudice to the earlier closure. Ms. Doshi submitted that when the reference was made this courts judgment in Cable Corporations case (supra) was holding the field and, therefore, the reference made in the light of that judgment was legal. Learned Counsel urged that it is necessary to adjudicate the legality and propriety of the award dated 5/5/07 made by the Tribunal on merits because in the proceedings initiated by the appellant union challenging the purported closure as per the notice dated 20/6/07 the legality and propriety of the closure effected in 2003 cannot be gone into by the Industrial Court.37. We are not impressed by this submission. The Tribunal made its award pursuant to the Specified Authoritys order dated 24/4/03. Once that order is found to be illegal, the award must fall to the ground. This is a settled legal position which cannot be overlooked. If the award goes, the consequences must follow. The argument that the reference order is in consonance with this courts judgment in Cable Corporations case which held the field at that time and, therefore, the reference is legally valid is fallacious. The legal position has been clarified by the Supreme Court now and what preceded the reference order must be examined in the light of the Supreme Courts judgment in Cable Corporations case (supra).
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disputed before the Tribunal that the Specified Authority has decided the review application on merits. In our opinion, there is strong basis for the above observation made by the Tribunal as well as by learned Single Judge.It is well settled that if a party feels that any statement made by him or his counsel has been wrongly recorded in the judgment it has to approach the same learned Judge to get the order corrected. In State of Maharashtra v. Ramdas Shrinivas Nayak, 1982 (2) SCC 463 , the Supreme Court dealt with this point. We may quote the relevant observation of the Supreme Court."If a party thinks that the happening in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the judges, to call the attention of the very judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error (per Lord Buckmaster in Madhu Sudan Chowdhri v. Chandrabati Chowdhrain). That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an appellate court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but he may not call in question the very fact of making the concession as recorded in the judgment."29. The above judgment was followed by the Supreme Court in Commissioner of EndowmentsOrs. v. Vithal RaoOrs., (2005) 4 SCC 120. It was, therefore, necessary for learned counsel for the appellant union to approach learned Single Judge and get the order corrected. In fact we asked Ms. Doshi whether she wanted to approach learned Single Judge in this connection. However there was no positive response from her. In our opinion, this stand taken by the appellant union makes a dent in its case.In view of the law laid down by the Supreme Court in the above judgments, it is not possible for any one to contest the proposition that a wrong concession made by a party or its advocate on a statutory provision cannot bind them. However, in our opinion, facts of this case are different. We are not concerned here with merely a concession made by a counsel. The appellant union took a stand that under Sectionthe Specified Authority can review its order and also make a reference and that the Specified Authority had in fact reviewed its order on the basis of judgment of this court in Cable Corporations case which held the field at that time. We have already noted that this legal stand of the appellant union is reflected in its arguments filed before the Tribunal and in itsfiled in this court. Thus the concession flows from the pleadings of the parties. The appellant union accepted the factual existence of a valid review order and thereafter sought to defend its stand on the basis of this courts judgment in Cable Corporations case. After the Supreme Court set aside this courts judgment in Cable Corporations case theis trying to contend that such statement was never made. In any case it is pertinent to note that in Commissioner of Endowments case (supra) the Supreme Court has observed that a party may resile from a concession of law but it cannot call in question the very fact of making the concession as recorded in the judgment. We may also mention that in Writ Petition No. 1794 of 2008 which is filed by the appellant union prior to the filing of this appeal, the appellant Union proceeded on the basis that there is a factual order of review. It only seeks to contend that the said order has been passed illegally. The conclusion is inevitable that the appellant union is adopting inconsistent stands and its conduct reflects on the credibility of its case.It is not possible to accept this argument. Undoubtedly the remedy of review or reference is a valuable remedy. But the legal position is clarified by the Supreme Court in Cable Corporations case (supra). The two remedies are alternative remedies. If review jurisdiction is exercised and review application is rejected then there can be no further order of reference. In this case there is no question of denial of remedy to the appellant union. The application of the appellant union has been considered by the Specified Authority and the Specified Authority has rejected it. The appellant union adopted the remedy available in law and the Specified Authority adjudicated the application. Once Specified Authority considers the application of the appellant union merely because the decision of the Specified Authority is against the appellant union it cannot contend that it was deprived of the valuable right of review. We have already concluded that the Specified Authority exercised its review jurisdiction and rejected the review application. The order of the Specified Authority cannot be interpreted in any other way. Any attempt made by us to interpret it differently would be doing violence to the law settled by the Supreme Court in Cable Corporations case (supra).We are not impressed by this submission. The Tribunal made its award pursuant to the Specified Authoritys order dated 24/4/03. Once that order is found to be illegal, the award must fall to the ground. This is a settled legal position which cannot be overlooked. If the award goes, the consequences must follow. The argument that the reference order is in consonance with this courts judgment in Cable Corporations case which held the field at that time and, therefore, the reference is legally valid is fallacious. The legal position has been clarified by the Supreme Court now and what preceded the reference order must be examined in the light of the Supreme Courts judgment in Cable Corporations case (supra).
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Gambhirdan K Gadhvi Vs. The State of Gujarat & Ors | by virtue of his office, be the head of the University and the President of the Senate. Therefore, even as the head of the University, his advice was/is binding upon the University and therefore, the State ought to have taken the necessary steps at the Government level as requested in the communication dated 30.08.2014. Even the request made by the H.E. – Governor of Gujarat, who is also the Chancellor of the University, ought not to have taken very lightly. The State ought to have taken the corrective measures by suitably amending the State legislation on par with the UGC Regulations. 14. The submissions made by Shri Navare, learned Senior Advocate appearing on behalf of respondent No.2 – SP University that as the earlier writ petition filed by the petitioner herein, in which the appointment of respondent No.4 herein as the Vice Chancellor, was under challenge came to be dismissed and the High Court refused to issue a writ of quo warranto and the judgment and order passed by the High Court in SCA No.18922 of 2017 was not disturbed by this Court and therefore, the controversy stands concluded and it is not open for the petitioner to raise the same issue again is concerned, the aforesaid submissions is noted only to be rejected. This Court did not opine anything on the merits of the judgment and order passed by the High Court. This Court refused to entertain the Special Leave Petition solely on the ground that by the time the same was taken up for hearing the tenure of respondent No.4 herein as a Vice Chancellor was coming to an end. Even while dismissing the same on the aforesaid ground alone, this Court specifically observed that all the questions of law are left open. 15. Thus, we find that the appointment of respondent No.4 is contrary to the UGC Regulations, 2018. Also, respondent No.4 has been appointed by a search committee, not constituted as per the UGC Regulations, 2018. Moreover, respondent No.4 does not fulfil the eligibility criteria as per the UGC Regulations, 2018, namely, having ten years of teaching work experience as a professor in the university system. As observed hereinabove, by adopting the Scheme and having accepted 80% of the maintenance expenditure from the Central government and when respondent No.4 is paid a fixed pay of Rs.75,000/- along with a special allowance of Rs.5,000/- per month, which is prescribed as per the Scheme of 2008, the State and the universities thereunder are bound by the UGC Regulations, including the UGC Regulations, 2018. The appointment of respondent No.4 is even otherwise not as per the eligibility criteria prescribed by the Search Committee, which is as under: - 1. Persons of the highest level of competence, integrity, morals and institutional commitment. 2. Persons should be a distinguished academician with proven leadership qualities shall be satisfying anyone of the following: 10 years experience of teaching and research. As professor or Vice Chancellor / Pro Vice Chancellor of any University including former Vice Chancellor / Pro Vice Chancellor or Director / Principal of a college / institution / Research Organization with 15 years of teaching / research / administration. In fact, in the instant case, H.E. – Governor of Gujarat who is also the Chancellor of all the Universities in the said State had through his Principal Secretary directed that the communication from the Secretary, University Grants Commission, Government of India, New Delhi dated 11th August, 2014 be complied and appropriate steps be taken in that regard. We have referred to the aforesaid letter dated 30th August, 2014. The letter of the Secretary of the UGC dated 11th August, 2014 to H.E. – Governor of Gujarat informing about the regulations titled Minimum qualifications for appointment of teachers and other academic staff in Universities and Colleges and measures for the maintenance of standards in higher education, 2010 has also been extracted above in the said letter. It has been clearly stated that the UGC has prescribed minimum qualifications for the appointment of a Vice- Chancellor and therefore, such an appointment must be in accordance with the provisions laid down in the afore- mentioned regulations of the UGC. It is clear that the respondent-State of Gujarat has failed to take note of the communication from the UGC and instead the respondent- University has left to the sweet will of the search committee to prescribe eligibility criteria for the appointment of the Vice-Chancellor of the University. The eligibility criteria when once fixed by the UGC under its regulations would in our view apply to all the universities which are aided by the UGC to be bound by the said regulations even in the absence of the same being incorporated under the respective universities Act of the respective States. Therefore, when the appointment of respondent No.4 is found to be contrary to the UGC Regulations, 2018 and the UGC Regulations are having the statutory force, we are of the opinion that this is a fit case to issue a writ of quo warranto and to quash and set aside the appointment of respondent No.4 as the Vice Chancellor of the SP University. 16. It cannot be disputed that the UGC Regulations are enacted by the UGC in exercise of powers under Section 26(1)(e) and 26(1)(g) of the UGC Act, 1956. Even as per the UGC Act every rule and regulation made under the said Act, shall be laid before each House of the Parliament. Therefore, being a subordinate legislation, UGC Regulations becomes part of the Act. In case of any conflict between State legislation and Central legislation, Central legislation shall prevail by applying the rule/principle of repugnancy as enunciated in Article 254 of the Constitution as the subject education is in the Concurrent List (List III) of the Seventh Schedule of the Constitution. Therefore, any appointment as a Vice Chancellor contrary to the provisions of the UGC Regulations can be said to be in violation of the statutory provisions, warranting a writ of quo warranto. | 1[ds]When a writ of quo warranto will lie has been dealt with by this Court in the case of Rajesh Awasthi Vs. Nand Lal Jaiswal and Ors., (2013) 1 SCC 501 . In para 19, it has been observed and held as under: -19. A writ of quo warranto will lie when the appointment is made contrary to the statutory provisions. This Court in Mor Modern Coop. Transport Society Ltd. v. Govt. of Haryana [(2002) 6 SCC 269] held that a writ of quo warranto can be issued when appointment is contrary to the statutory provisions. In B. Srinivasa Reddy [(2006) 11 SCC 731 (2) : (2007) 1 SCC (L&S) 548 (2)] , this Court has reiterated the legal position that the jurisdiction of the High Court to issue a writ of quo warranto is limited to one which can only be issued if the appointment is contrary to the statutory rules. The said position has been reiterated by this Court in Hari Bansh Lal [(2010) 9 SCC 655 : (2010) 2 SCC (L&S) 771] wherein this Court has held that for the issuance of writ of quo warranto, the High Court has to satisfy itself that the appointment is contrary to the statutory rules.9.1 In the case of Retd. Armed Forces Medical Association and Ors. Vs. Union of India & Ors., (2006) 11 SCC 731, it has been observed by this Court that strict rules of locus standi are relaxed to some extent in a quo warranto proceedings. It is further observed in the said decision that broadly stated, the quo warranto proceeding affords a judicial remedy by which any person, who holds an independent substantive public office or franchise or liberty, is called upon to show by what right he holds the said office, franchise or liberty, so that his title to it may be duly determined, and in case the finding is that the holder of the office has no title, he would be ousted from that office by a judicial order. It is further observed that in other words, the procedure of quo warranto gives the judiciary a weapon to control the executive from making appointments to public office against law and to protect citizens from being deprived of public office to which they have a right. These proceedings also tend to protect the public from usurpers of public office. It is further observed that it will, thus, be seen that before a person can effectively claim a writ of quo warranto, he has to satisfy the court that the office in question is a public office and is held by a usurper without legal authority, and that inevitably would lead to an enquiry, as to, whether, the appointment of the alleged usurper has been made in accordance with law or not. Thus, as per the law laid down in a catena of decisions, the jurisdiction of the High Court to issue a writ of quo warranto is a limited one, which can only be issued when a person is holding the public office does not fulfil the eligibility criteria prescribed to be appointed to such an office or when the appointment is contrary to the statutory rules. Keeping in mind the law laid down by this Court in the aforesaid decisions on the jurisdiction of the Court while issuing a writ of quo warranto, the factual and legal controversy in the present petition is required to be considered.10. Respondent No.4 is holding the post of Vice Chancellor. The post of Vice Chancellor in a University can be said to be a public office. There cannot be any dispute about the same. It is nobodys case that holding the post of Vice Chancellor cannot be said to be holding a post of public office.In the present case, State of Gujarat has adopted the said Scheme dated 31.12.2008 by a Resolution dated 11.11.2009 with effect from 01.01.2006 subject to the conditions mentioned in the said resolution. Even in the said resolution, condition No.13 provides that the State Government will publish the educational qualifications as per the UGC instructions published from time to time and quality yardstick, teaching work days, norms, instructions, resolutions will have to be implemented. It is not in dispute that the SP University is receiving Central financial assistance under the Scheme and it is included in the State universities receiving Central financial assistance as per Section 12(b) of the UGC Act, 1956. Therefore, having adopted the UGC Scheme and implemented the same and getting Central financial assistance to the extent of 80% of the maintenance expenditure, the State Government and the SP University are bound by the UGC Regulations, 2010. The UGC Regulations, 2010 are superseded by the UGC Regulations, 2018. However, the eligibility criteria for the post of Vice Chancellor and the constitution of the search committee for appointment of a Vice Chancellor remains the same. Therefore, the State of Gujarat and the universities thereunder including the SP University are bound to follow UGC Regulations, 2010 and UGC Regulations, 2018.Section 10 of the SPU Act does not provide any qualification whatsoever for appointment to the post of Vice Chancellor. Even the eligibility criteria to be prescribed is left to the Search Committee. There are no guidelines whatsoever on the eligibility criteria to be prescribed by the Search Committee. On the other hand, the UGC Regulations, 2010/2018 specifically prescribes the qualification / eligibility criteria for the post of Vice Chancellor. It also provides for the constitution of the Search Committee. As observed hereinabove as per Regulation 7.3.0 a person shall have ten years of teaching work experience as a professor in the university system and it also provides for constitution of a search committee consisting of a nominee of the Visitor/Chancellor, a nominee of the Chairman of the UGC, a nominee of the Syndicate/Executive Council of the University. But respondent No.4 did not/ does not fulfil the eligibility criteria prescribed under the UGC Regulations, 2010/2018. He was/is not having ten years of teaching work experience as a professor in the university system. Moreover, his name was not recommended by the legally constituted search committee, constituted as per the UGC Regulations, 2010/2018. Also, the search committee has prescribed the eligibility criteria for the post of Vice Chancellor by diluting the eligibility criteria laid down in the UGC Regulations, 2010/2018.12.2 Thus, the provisions of the SPU Act, 1955/provisions under the State legislation are just contrary to the UGC Regulations, 2010/2018, which, as observed hereinabove, are binding on the State Government and the universities thereunder. Even the State Government has not bothered to amend the State legislation – to put at par with the UGC Regulations, 2010/2018 and has continued the appointment in the universities dehors the UGC Regulations.13. At this stage, it is required to be noted that in the present case the UGC vide communication dated 11.08.2014 addressed to the H.E. – Governor of Gujarat, who is also the Chancellor of the University has drawn the attention of H.E. – Governor of Gujarat to ensure that all the appointments of Vice Chancellors in the State are made in accordance with the provisions laid down in the Regulations of UGC.13.2 Despite the above clear instructions from the office of H.E.– Governor of Gujarat, who is also the Chancellor of all the universities, it is unfortunate that till date the State legislation has not been amended by the State Government and the appointments to the post of Vice Chancellor in the Universities in the said State are being made just contrary to the UGC guidelines and Regulations. At this stage, it is required to be noted that even in the earlier round of litigation being SCA No.18922 of 2017 in which this very petitioner challenged the appointment of this very respondent No.4 as a Vice Chancellor of SPU made in the year 2016, the Division Bench of the High Court made certain observations against the State Government not adopting the UGC Regulations and not amending the State legislation appropriately.Even the aforesaid observations made in para 24 were taken note of by this Court while disposing of the SLP (C) No.21792 of 2018 in which the decision of the Division Bench of the High Court was under challenge.13.3 Thus, despite the communication by the UGC dated 11.08.2014 and thereafter, the communication by the H.E. – Governor of Gujarat dated 30.08.2014 and even the observations made by the Division Bench of the High Court in paragraph 24 in its judgment and order dated 05.07.2018 in SCA No.18922 of 2017, reproduced hereinabove, it is unfortunate that as on today, no further steps have been taken by the State Government, to amend the State legislation and to put the same at par with the UGC Regulations, and the State and the universities thereunder have continued to make the appointments of Vice Chancellors just contrary to the UGC Regulations, which as observed hereinabove are binding.13.4 At this stage, it is required to be noted that as per Section 9 of the SPU Act, 1955, H.E. – Governor of Gujarat is the Chancellor of the University and he shall, by virtue of his office, be the head of the University and the President of the Senate. Therefore, even as the head of the University, his advice was/is binding upon the University and therefore, the State ought to have taken the necessary steps at the Government level as requested in the communication dated 30.08.2014. Even the request made by the H.E. – Governor of Gujarat, who is also the Chancellor of the University, ought not to have taken very lightly. The State ought to have taken the corrective measures by suitably amending the State legislation on par with the UGC Regulations.14. The submissions made by Shri Navare, learned Senior Advocate appearing on behalf of respondent No.2 – SP University that as the earlier writ petition filed by the petitioner herein, in which the appointment of respondent No.4 herein as the Vice Chancellor, was under challenge came to be dismissed and the High Court refused to issue a writ of quo warranto and the judgment and order passed by the High Court in SCA No.18922 of 2017 was not disturbed by this Court and therefore, the controversy stands concluded and it is not open for the petitioner to raise the same issue again is concerned, the aforesaid submissions is noted only to be rejected. This Court did not opine anything on the merits of the judgment and order passed by the High Court. This Court refused to entertain the Special Leave Petition solely on the ground that by the time the same was taken up for hearing the tenure of respondent No.4 herein as a Vice Chancellor was coming to an end. Even while dismissing the same on the aforesaid ground alone, this Court specifically observed that all the questions of law are left open.15. Thus, we find that the appointment of respondent No.4 is contrary to the UGC Regulations, 2018. Also, respondent No.4 has been appointed by a search committee, not constituted as per the UGC Regulations, 2018. Moreover, respondent No.4 does not fulfil the eligibility criteria as per the UGC Regulations, 2018, namely, having ten years of teaching work experience as a professor in the university system. As observed hereinabove, by adopting the Scheme and having accepted 80% of the maintenance expenditure from the Central government and when respondent No.4 is paid a fixed pay of Rs.75,000/- along with a special allowance of Rs.5,000/- per month, which is prescribed as per the Scheme of 2008, the State and the universities thereunder are bound by the UGC Regulations, including the UGC Regulations, 2018.In fact, in the instant case, H.E. – Governor of Gujarat who is also the Chancellor of all the Universities in the said State had through his Principal Secretary directed that the communication from the Secretary, University Grants Commission, Government of India, New Delhi dated 11th August, 2014 be complied and appropriate steps be taken in that regard. We have referred to the aforesaid letter dated 30th August, 2014. The letter of the Secretary of the UGC dated 11th August, 2014 to H.E. – Governor of Gujarat informing about the regulations titled Minimum qualifications for appointment of teachers and other academic staff in Universities and Colleges and measures for the maintenance of standards in higher education, 2010 has also been extracted above in the said letter. It has been clearly stated that the UGC has prescribed minimum qualifications for the appointment of a Vice- Chancellor and therefore, such an appointment must be in accordance with the provisions laid down in the afore- mentioned regulations of the UGC. It is clear that the respondent-State of Gujarat has failed to take note of the communication from the UGC and instead the respondent- University has left to the sweet will of the search committee to prescribe eligibility criteria for the appointment of the Vice-Chancellor of the University. The eligibility criteria when once fixed by the UGC under its regulations would in our view apply to all the universities which are aided by the UGC to be bound by the said regulations even in the absence of the same being incorporated under the respective universities Act of the respective States. Therefore, when the appointment of respondent No.4 is found to be contrary to the UGC Regulations, 2018 and the UGC Regulations are having the statutory force, we are of the opinion that this is a fit case to issue a writ of quo warranto and to quash and set aside the appointment of respondent No.4 as the Vice Chancellor of the SP University.16. It cannot be disputed that the UGC Regulations are enacted by the UGC in exercise of powers under Section 26(1)(e) and 26(1)(g) of the UGC Act, 1956. Even as per the UGC Act every rule and regulation made under the said Act, shall be laid before each House of the Parliament. Therefore, being a subordinate legislation, UGC Regulations becomes part of the Act. In case of any conflict between State legislation and Central legislation, Central legislation shall prevail by applying the rule/principle of repugnancy as enunciated in Article 254 of the Constitution as the subject education is in the Concurrent List (List III) of the Seventh Schedule of the Constitution. Therefore, any appointment as a Vice Chancellor contrary to the provisions of the UGC Regulations can be said to be in violation of the statutory provisions, warranting a writ of quo warranto. | 1 | 9,765 | 2,657 | ### 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:
by virtue of his office, be the head of the University and the President of the Senate. Therefore, even as the head of the University, his advice was/is binding upon the University and therefore, the State ought to have taken the necessary steps at the Government level as requested in the communication dated 30.08.2014. Even the request made by the H.E. – Governor of Gujarat, who is also the Chancellor of the University, ought not to have taken very lightly. The State ought to have taken the corrective measures by suitably amending the State legislation on par with the UGC Regulations. 14. The submissions made by Shri Navare, learned Senior Advocate appearing on behalf of respondent No.2 – SP University that as the earlier writ petition filed by the petitioner herein, in which the appointment of respondent No.4 herein as the Vice Chancellor, was under challenge came to be dismissed and the High Court refused to issue a writ of quo warranto and the judgment and order passed by the High Court in SCA No.18922 of 2017 was not disturbed by this Court and therefore, the controversy stands concluded and it is not open for the petitioner to raise the same issue again is concerned, the aforesaid submissions is noted only to be rejected. This Court did not opine anything on the merits of the judgment and order passed by the High Court. This Court refused to entertain the Special Leave Petition solely on the ground that by the time the same was taken up for hearing the tenure of respondent No.4 herein as a Vice Chancellor was coming to an end. Even while dismissing the same on the aforesaid ground alone, this Court specifically observed that all the questions of law are left open. 15. Thus, we find that the appointment of respondent No.4 is contrary to the UGC Regulations, 2018. Also, respondent No.4 has been appointed by a search committee, not constituted as per the UGC Regulations, 2018. Moreover, respondent No.4 does not fulfil the eligibility criteria as per the UGC Regulations, 2018, namely, having ten years of teaching work experience as a professor in the university system. As observed hereinabove, by adopting the Scheme and having accepted 80% of the maintenance expenditure from the Central government and when respondent No.4 is paid a fixed pay of Rs.75,000/- along with a special allowance of Rs.5,000/- per month, which is prescribed as per the Scheme of 2008, the State and the universities thereunder are bound by the UGC Regulations, including the UGC Regulations, 2018. The appointment of respondent No.4 is even otherwise not as per the eligibility criteria prescribed by the Search Committee, which is as under: - 1. Persons of the highest level of competence, integrity, morals and institutional commitment. 2. Persons should be a distinguished academician with proven leadership qualities shall be satisfying anyone of the following: 10 years experience of teaching and research. As professor or Vice Chancellor / Pro Vice Chancellor of any University including former Vice Chancellor / Pro Vice Chancellor or Director / Principal of a college / institution / Research Organization with 15 years of teaching / research / administration. In fact, in the instant case, H.E. – Governor of Gujarat who is also the Chancellor of all the Universities in the said State had through his Principal Secretary directed that the communication from the Secretary, University Grants Commission, Government of India, New Delhi dated 11th August, 2014 be complied and appropriate steps be taken in that regard. We have referred to the aforesaid letter dated 30th August, 2014. The letter of the Secretary of the UGC dated 11th August, 2014 to H.E. – Governor of Gujarat informing about the regulations titled Minimum qualifications for appointment of teachers and other academic staff in Universities and Colleges and measures for the maintenance of standards in higher education, 2010 has also been extracted above in the said letter. It has been clearly stated that the UGC has prescribed minimum qualifications for the appointment of a Vice- Chancellor and therefore, such an appointment must be in accordance with the provisions laid down in the afore- mentioned regulations of the UGC. It is clear that the respondent-State of Gujarat has failed to take note of the communication from the UGC and instead the respondent- University has left to the sweet will of the search committee to prescribe eligibility criteria for the appointment of the Vice-Chancellor of the University. The eligibility criteria when once fixed by the UGC under its regulations would in our view apply to all the universities which are aided by the UGC to be bound by the said regulations even in the absence of the same being incorporated under the respective universities Act of the respective States. Therefore, when the appointment of respondent No.4 is found to be contrary to the UGC Regulations, 2018 and the UGC Regulations are having the statutory force, we are of the opinion that this is a fit case to issue a writ of quo warranto and to quash and set aside the appointment of respondent No.4 as the Vice Chancellor of the SP University. 16. It cannot be disputed that the UGC Regulations are enacted by the UGC in exercise of powers under Section 26(1)(e) and 26(1)(g) of the UGC Act, 1956. Even as per the UGC Act every rule and regulation made under the said Act, shall be laid before each House of the Parliament. Therefore, being a subordinate legislation, UGC Regulations becomes part of the Act. In case of any conflict between State legislation and Central legislation, Central legislation shall prevail by applying the rule/principle of repugnancy as enunciated in Article 254 of the Constitution as the subject education is in the Concurrent List (List III) of the Seventh Schedule of the Constitution. Therefore, any appointment as a Vice Chancellor contrary to the provisions of the UGC Regulations can be said to be in violation of the statutory provisions, warranting a writ of quo warranto.
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1
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its judgment and order dated 05.07.2018 in SCA No.18922 of 2017, reproduced hereinabove, it is unfortunate that as on today, no further steps have been taken by the State Government, to amend the State legislation and to put the same at par with the UGC Regulations, and the State and the universities thereunder have continued to make the appointments of Vice Chancellors just contrary to the UGC Regulations, which as observed hereinabove are binding.13.4 At this stage, it is required to be noted that as per Section 9 of the SPU Act, 1955, H.E. – Governor of Gujarat is the Chancellor of the University and he shall, by virtue of his office, be the head of the University and the President of the Senate. Therefore, even as the head of the University, his advice was/is binding upon the University and therefore, the State ought to have taken the necessary steps at the Government level as requested in the communication dated 30.08.2014. Even the request made by the H.E. – Governor of Gujarat, who is also the Chancellor of the University, ought not to have taken very lightly. The State ought to have taken the corrective measures by suitably amending the State legislation on par with the UGC Regulations.14. The submissions made by Shri Navare, learned Senior Advocate appearing on behalf of respondent No.2 – SP University that as the earlier writ petition filed by the petitioner herein, in which the appointment of respondent No.4 herein as the Vice Chancellor, was under challenge came to be dismissed and the High Court refused to issue a writ of quo warranto and the judgment and order passed by the High Court in SCA No.18922 of 2017 was not disturbed by this Court and therefore, the controversy stands concluded and it is not open for the petitioner to raise the same issue again is concerned, the aforesaid submissions is noted only to be rejected. This Court did not opine anything on the merits of the judgment and order passed by the High Court. This Court refused to entertain the Special Leave Petition solely on the ground that by the time the same was taken up for hearing the tenure of respondent No.4 herein as a Vice Chancellor was coming to an end. Even while dismissing the same on the aforesaid ground alone, this Court specifically observed that all the questions of law are left open.15. Thus, we find that the appointment of respondent No.4 is contrary to the UGC Regulations, 2018. Also, respondent No.4 has been appointed by a search committee, not constituted as per the UGC Regulations, 2018. Moreover, respondent No.4 does not fulfil the eligibility criteria as per the UGC Regulations, 2018, namely, having ten years of teaching work experience as a professor in the university system. As observed hereinabove, by adopting the Scheme and having accepted 80% of the maintenance expenditure from the Central government and when respondent No.4 is paid a fixed pay of Rs.75,000/- along with a special allowance of Rs.5,000/- per month, which is prescribed as per the Scheme of 2008, the State and the universities thereunder are bound by the UGC Regulations, including the UGC Regulations, 2018.In fact, in the instant case, H.E. – Governor of Gujarat who is also the Chancellor of all the Universities in the said State had through his Principal Secretary directed that the communication from the Secretary, University Grants Commission, Government of India, New Delhi dated 11th August, 2014 be complied and appropriate steps be taken in that regard. We have referred to the aforesaid letter dated 30th August, 2014. The letter of the Secretary of the UGC dated 11th August, 2014 to H.E. – Governor of Gujarat informing about the regulations titled Minimum qualifications for appointment of teachers and other academic staff in Universities and Colleges and measures for the maintenance of standards in higher education, 2010 has also been extracted above in the said letter. It has been clearly stated that the UGC has prescribed minimum qualifications for the appointment of a Vice- Chancellor and therefore, such an appointment must be in accordance with the provisions laid down in the afore- mentioned regulations of the UGC. It is clear that the respondent-State of Gujarat has failed to take note of the communication from the UGC and instead the respondent- University has left to the sweet will of the search committee to prescribe eligibility criteria for the appointment of the Vice-Chancellor of the University. The eligibility criteria when once fixed by the UGC under its regulations would in our view apply to all the universities which are aided by the UGC to be bound by the said regulations even in the absence of the same being incorporated under the respective universities Act of the respective States. Therefore, when the appointment of respondent No.4 is found to be contrary to the UGC Regulations, 2018 and the UGC Regulations are having the statutory force, we are of the opinion that this is a fit case to issue a writ of quo warranto and to quash and set aside the appointment of respondent No.4 as the Vice Chancellor of the SP University.16. It cannot be disputed that the UGC Regulations are enacted by the UGC in exercise of powers under Section 26(1)(e) and 26(1)(g) of the UGC Act, 1956. Even as per the UGC Act every rule and regulation made under the said Act, shall be laid before each House of the Parliament. Therefore, being a subordinate legislation, UGC Regulations becomes part of the Act. In case of any conflict between State legislation and Central legislation, Central legislation shall prevail by applying the rule/principle of repugnancy as enunciated in Article 254 of the Constitution as the subject education is in the Concurrent List (List III) of the Seventh Schedule of the Constitution. Therefore, any appointment as a Vice Chancellor contrary to the provisions of the UGC Regulations can be said to be in violation of the statutory provisions, warranting a writ of quo warranto.
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ICICI Ltd Vs. Ahmedabad Manufacturing & Calico Printing Co. Ltd. & Another | 1. The appellant had advanced loans to the respondent Company between 23-2-1976 till 10-7-1986. On 10-7-1986 an application for winding up was filed against the respondent by an unsecured creditor. Subsequent to this on 1-10-1986 and 19-1-1988, the appellant sanctioned two further loans to the Company. In 1990 the Company as well as the appellant made an application under S.536(2) of the Companies Act, 1956 for allowing the disposition of the Companys properties "which may have to take place" as a consequence of the loans advanced by the appellant to the Company from 1976. The learned Single Judge allowed the application in part by granting leave to dispositions by the Company of its assets under S.536(2) in respect of those loans which were made subsequent to the commencement of the winding up of the respondent Company, namely, 10-7-1986, but refusing such leave in respect of the prior transactions.2. The appeal preferred by the appellant was dismissed by the Division Bench by holding that leave under S.536(2) should normally be granted if the dispositions were necessary for the purpose of obtaining funds for the Company or otherwise in the interest of the Company which was being wound up. It was also held that permitting the Company to dispose of all its assets to a particular creditor would affect the claims of all creditors of the Company and that before any such order is passed publicity should be given to the application so that all creditors could file their objections to the application under S.536(2), if they wanted to do. It was also found that the application under S.536(2), was moved only on 30-11-1990. It was noted that no details have been given regarding those transactions which had taken place prior to 10-7-1986. This was sought to be rectified only subsequently by giving details of the earlier loans. The High Court held that what the appellant was in fact seeking to do was to convert itself from an unsecured into a secured creditor in respect of transactions which had taken place "15 to 17 years ago". The Court therefore refused to interfere with the order of the learned Single Judge. However,, the Court went further and set aside the decision of the learned Single Judge insofar as it pertained to the post - 10-7-1986 loans, although no appeal had been preferred therefrom. 3. It is not in dispute that during the pendency of the proceedings the Company was referred to the Board for Industrial and Financial Reconstruction under the Sick Industrial Companies (Special Provisions) Act. The efforts to revive the Company were unsuccessful both before BIFR as well as AAIFR. The Company was accordingly ultimately wound up. Its assets have been sold by the Official Liquidator and the sale proceeds are at present held by the Official Liquidator. These subsequent developments have been noted by this Court by orders passed in this appeal from time to time.4. The appellants prayer under S.536(2) was to allow the Company to execute documents creating a first charge over the Companys properties in favour of the appellants. The Companys properties as of today are not properties belonging to the Company. Apart from it being a practical impossibility to allow the appellants prayer at this stage, we are of the view that the Division Bench did not err in rejecting the application of the appellant at least insofar as it pertained to the loan transactions prior to 10-7-1986. There is no explanation forthcoming from the appellant as to how these advances were made for over a period of 10 years without obtaining any security. The appellant ultimately sought to create securities in respect of these transactions only in 1990. The Division Bench was also correct that the grant of leave under S.536(2) would not be appropriate after this delay. Leave under S.536(2) may be granted for the benefit of the company in liquidation or the creditors of the company in general. It cannot be said that the securing of old debts due to one creditor of the respondent by creating of a mortgage ex post facto would in any way either enure towards the preservation of the Companys assets or its business or enure to the benefit of its other creditors.5. However, we are of the view that the High Court erred in setting aside the learned Single Judges order even in respect of the post - 10-7-1986 loans on the simple ground that this was beyond the scope of the appellants appeal. The appellant could not be in a worse position by having preferred the appeal from the order of the learned Single Judge. | 1[ds]3. It is not in dispute that during the pendency of the proceedings the Company was referred to the Board for Industrial and Financial Reconstruction under the Sick Industrial Companies (Special Provisions) Act. The efforts to revive the Company were unsuccessful both before BIFR as well as AAIFR. The Company was accordingly ultimately wound up. Its assets have been sold by the Official Liquidator and the sale proceeds are at present held by the Official Liquidator. These subsequent developments have been noted by this Court by orders passed in this appeal from time to time.4. The appellants prayer under S.536(2) was to allow the Company to execute documents creating a first charge over the Companys properties in favour of the appellants. The Companys properties as of today are not properties belonging to the Company. Apart from it being a practical impossibility to allow the appellants prayer at this stage, we are of the view that the Division Bench did not err in rejecting the application of the appellant at least insofar as it pertained to the loan transactions prior toThere is no explanation forthcoming from the appellant as to how these advances were made for over a period of 10 years without obtaining any security. The appellant ultimately sought to create securities in respect of these transactions only in 1990. The Division Bench was also correct that the grant of leave under S.536(2) would not be appropriate after this delay. Leave under S.536(2) may be granted for the benefit of the company in liquidation or the creditors of the company in general. It cannot be said that the securing of old debts due to one creditor of the respondent by creating of a mortgage ex post facto would in any way either enure towards the preservation of the Companys assets or its business or enure to the benefit of its other creditors.5. However, we are of the view that the High Court erred in setting aside the learned Single Judges order even in respect of the postloans on the simple ground that this was beyond the scope of the appellants appeal. The appellant could not be in a worse position by having preferred the appeal from the order of the learned Single Judge. | 1 | 841 | 406 | ### 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:
1. The appellant had advanced loans to the respondent Company between 23-2-1976 till 10-7-1986. On 10-7-1986 an application for winding up was filed against the respondent by an unsecured creditor. Subsequent to this on 1-10-1986 and 19-1-1988, the appellant sanctioned two further loans to the Company. In 1990 the Company as well as the appellant made an application under S.536(2) of the Companies Act, 1956 for allowing the disposition of the Companys properties "which may have to take place" as a consequence of the loans advanced by the appellant to the Company from 1976. The learned Single Judge allowed the application in part by granting leave to dispositions by the Company of its assets under S.536(2) in respect of those loans which were made subsequent to the commencement of the winding up of the respondent Company, namely, 10-7-1986, but refusing such leave in respect of the prior transactions.2. The appeal preferred by the appellant was dismissed by the Division Bench by holding that leave under S.536(2) should normally be granted if the dispositions were necessary for the purpose of obtaining funds for the Company or otherwise in the interest of the Company which was being wound up. It was also held that permitting the Company to dispose of all its assets to a particular creditor would affect the claims of all creditors of the Company and that before any such order is passed publicity should be given to the application so that all creditors could file their objections to the application under S.536(2), if they wanted to do. It was also found that the application under S.536(2), was moved only on 30-11-1990. It was noted that no details have been given regarding those transactions which had taken place prior to 10-7-1986. This was sought to be rectified only subsequently by giving details of the earlier loans. The High Court held that what the appellant was in fact seeking to do was to convert itself from an unsecured into a secured creditor in respect of transactions which had taken place "15 to 17 years ago". The Court therefore refused to interfere with the order of the learned Single Judge. However,, the Court went further and set aside the decision of the learned Single Judge insofar as it pertained to the post - 10-7-1986 loans, although no appeal had been preferred therefrom. 3. It is not in dispute that during the pendency of the proceedings the Company was referred to the Board for Industrial and Financial Reconstruction under the Sick Industrial Companies (Special Provisions) Act. The efforts to revive the Company were unsuccessful both before BIFR as well as AAIFR. The Company was accordingly ultimately wound up. Its assets have been sold by the Official Liquidator and the sale proceeds are at present held by the Official Liquidator. These subsequent developments have been noted by this Court by orders passed in this appeal from time to time.4. The appellants prayer under S.536(2) was to allow the Company to execute documents creating a first charge over the Companys properties in favour of the appellants. The Companys properties as of today are not properties belonging to the Company. Apart from it being a practical impossibility to allow the appellants prayer at this stage, we are of the view that the Division Bench did not err in rejecting the application of the appellant at least insofar as it pertained to the loan transactions prior to 10-7-1986. There is no explanation forthcoming from the appellant as to how these advances were made for over a period of 10 years without obtaining any security. The appellant ultimately sought to create securities in respect of these transactions only in 1990. The Division Bench was also correct that the grant of leave under S.536(2) would not be appropriate after this delay. Leave under S.536(2) may be granted for the benefit of the company in liquidation or the creditors of the company in general. It cannot be said that the securing of old debts due to one creditor of the respondent by creating of a mortgage ex post facto would in any way either enure towards the preservation of the Companys assets or its business or enure to the benefit of its other creditors.5. However, we are of the view that the High Court erred in setting aside the learned Single Judges order even in respect of the post - 10-7-1986 loans on the simple ground that this was beyond the scope of the appellants appeal. The appellant could not be in a worse position by having preferred the appeal from the order of the learned Single Judge.
### Response:
1
### Explanation:
3. It is not in dispute that during the pendency of the proceedings the Company was referred to the Board for Industrial and Financial Reconstruction under the Sick Industrial Companies (Special Provisions) Act. The efforts to revive the Company were unsuccessful both before BIFR as well as AAIFR. The Company was accordingly ultimately wound up. Its assets have been sold by the Official Liquidator and the sale proceeds are at present held by the Official Liquidator. These subsequent developments have been noted by this Court by orders passed in this appeal from time to time.4. The appellants prayer under S.536(2) was to allow the Company to execute documents creating a first charge over the Companys properties in favour of the appellants. The Companys properties as of today are not properties belonging to the Company. Apart from it being a practical impossibility to allow the appellants prayer at this stage, we are of the view that the Division Bench did not err in rejecting the application of the appellant at least insofar as it pertained to the loan transactions prior toThere is no explanation forthcoming from the appellant as to how these advances were made for over a period of 10 years without obtaining any security. The appellant ultimately sought to create securities in respect of these transactions only in 1990. The Division Bench was also correct that the grant of leave under S.536(2) would not be appropriate after this delay. Leave under S.536(2) may be granted for the benefit of the company in liquidation or the creditors of the company in general. It cannot be said that the securing of old debts due to one creditor of the respondent by creating of a mortgage ex post facto would in any way either enure towards the preservation of the Companys assets or its business or enure to the benefit of its other creditors.5. However, we are of the view that the High Court erred in setting aside the learned Single Judges order even in respect of the postloans on the simple ground that this was beyond the scope of the appellants appeal. The appellant could not be in a worse position by having preferred the appeal from the order of the learned Single Judge.
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Charandas Haridas And Another Vs. The Commissioner Of Income-Tax,Bombay North, Kutch, Sauras | a unit does not become a partner, but only such of its members as in fact enter into a contractual relation with the stranger: the partnership will be governed by the Act."Further, the Privy Council in Appovier v. Rama Subba Aiyan, 11 Moo Ind App 75, observed :"Nothing can express more definitely a conversion of the tenancy, and with that conversion of the tenancy, and with that conversion a change of the status of the family quoad this property. The produce is no longer to be brought to the common chest, as representing the income of an undivided property, but the proceeds are to be enjoyed in six distinct equal shares by the members of the family, who are thenceforth to become entitled to those definite shares."The Bombay High Court quoted this passage, and stated that there must be a division of the rights as well as a division of the property; and unless the division effected a separation of the property into shares, it would remain only as a separation of the income after its accrual and would not affect the asset as such. In this view of the matter, the Bombay High Court held that the asset continued to be joint in spite of the division of the income after its accrual.10. In our opinion, here there are three different branches of law to notice. There is the law of Partnership, which takes no account of a Hindu undivided family. There is also the Hindu law, which permits a partition of the family and also a partial partition binding upon the family. There is then the Income-tax law, under which a particular income may be treated as the income of the Hindu undivided family or as the income of the separated members enjoying separate shares by partition.The fact of a partition in the Hindu law may have no effect upon the position of the partner, insofar as the law of Partnership is concerned, but it has full effect upon the family insofar as the Hindu law is concerned. Just as the fact of a Karta becoming a partner does not introduce the members of the undivided family into the partnership, the division of the family does not change the position of the partner vis-_is the other partner or partners.The Income-tax law before the partition takes note, factually, of the position of the Karta, and assesses not him qua partner but as representing the Hindu undivided family. In doing so, the Income-tax law looks not to the provisions of the Partnership Act, but to the provisions of Hindu law. When once the family has disrupted, the position under the partnership continues as before, but the position under the Hindu law changes. There is then no Hindu undivided family as a unit of assessment in point of fact, and the income which accrues, cannot be said to be of a Hindu undivided family.There is nothing in the Indian Income-tax law or the law of Partnership which prevents the members of a Hindu joint family from dividing any asset. Such division must, of course, be effective so as to bind the members; but Hindu law does not further require that the property must in every case be partitioned by metes and bounds, if separate enjoyment can otherwise be secured according to the shares of the members.For an asset of this kind, there was no other mode of partition open to the parties if they wished to retain the property and vet hold it not jointly but in severalty, and the law does not contemplate that a person should do the impossible. Indeed, the result would have been the same, even if the dividing members had said in so many words that they had partitioned the assets, because insofar as the firms were concerned, the step would have been wholly inconsequential.11. The respondent suggested that the family could have partitioned the managing agencies among the members of the family by allotting them severally; but that would not have been possible without a dissolution of the managing agency firms and their reconstitution, which was not altogether in the hands of Charandas Haridas. It was also suggested that the managing agencies could have been allotted to Charandas Haridas while the others took some other property, or a receiver could have been appointed. No doubt, there were many modes of partition which might have been adopted; but the question remains that if the family desired to partition these assets only and no more, could they have acted in some other manner to achieve the same result? No answer to this question was attempted.12. It is, therefore, manifest that the family took the fullest measure possible for dividing the joint interest into separate interests.There is no suggestion here that this division was a mere pretence; nor has the Appellate Tribunal given such a finding.The document was fully effective between the members of the family, and there was factually no Hindu undivided family in respect of these particular assets.The assets at all times stood in the name of Charandas Haridas, and looked at from the point of view of the law of Partnership, the family had no standing. The assets still are in the name of Charandas Haridas, and looked again from the same viewpoint, the division has no different signification. What has altered is the status of the family. While it was joint, the Department could treat the income as that of the family; but after partition, the Department could not say that it was still the income of the Hindu undivided family, when there was none.In the face of the finding that this was a genuine document and not a sham, and that it effectually divided the income and in the circumstances, the assets, the question answers itself in the negative, that is to say, that there were no materials to justify the finding that the income in the share of the commission agency of the Mills was the income of the Hindu undivided family. | 1[ds]10. In our opinion, here there are three different branches of law to notice. There is the law of Partnership, which takes no account of a Hindu undivided family. There is also the Hindu law, which permits a partition of the family and also a partial partition binding upon the family. There is then the Income-tax law, under which a particular income may be treated as the income of the Hindu undivided family or as the income of the separated members enjoying separate shares by partition.The fact of a partition in the Hindu law may have no effect upon the position of the partner, insofar as the law of Partnership is concerned, but it has full effect upon the family insofar as the Hindu law is concerned. Just as the fact of a Karta becoming a partner does not introduce the members of the undivided family into the partnership, the division of the family does not change the position of the partner vis-_is the other partner or partners.The Income-tax law before the partition takes note, factually, of the position of the Karta, and assesses not him qua partner but as representing the Hindu undivided family. In doing so, the Income-tax law looks not to the provisions of the Partnership Act, but to the provisions of Hindu law. When once the family has disrupted, the position under the partnership continues as before, but the position under the Hindu law changes. There is then no Hindu undivided family as a unit of assessment in point of fact, and the income which accrues, cannot be said to be of a Hindu undivided family.There is nothing in the Indian Income-tax law or the law of Partnership which prevents the members of a Hindu joint family from dividing any asset. Such division must, of course, be effective so as to bind the members; but Hindu law does not further require that the property must in every case be partitioned by metes and bounds, if separate enjoyment can otherwise be secured according to the shares of the members.For an asset of this kind, there was no other mode of partition open to the parties if they wished to retain the property and vet hold it not jointly but in severalty, and the law does not contemplate that a person should do the impossible. Indeed, the result would have been the same, even if the dividing members had said in so many words that they had partitioned the assets, because insofar as the firms were concerned, the step would have been wholly inconsequential.11. The respondent suggested that the family could have partitioned the managing agencies among the members of the family by allotting them severally; but that would not have been possible without a dissolution of the managing agency firms and their reconstitution, which was not altogether in the hands of Charandas Haridas. It was also suggested that the managing agencies could have been allotted to Charandas Haridas while the others took some other property, or a receiver could have been appointed. No doubt, there were many modes of partition which might have been adopted; but the question remains that if the family desired to partition these assets only and no more, could they have acted in some other manner to achieve the same result? No answer to this question was attempted.12. It is, therefore, manifest that the family took the fullest measure possible for dividing the joint interest into separate interests.There is no suggestion here that this division was a mere pretence; nor has the Appellate Tribunal given such a finding.The document was fully effective between the members of the family, and there was factually no Hindu undivided family in respect of these particular assets.The assets at all times stood in the name of Charandas Haridas, and looked at from the point of view of the law of Partnership, the family had no standing. The assets still are in the name of Charandas Haridas, and looked again from the same viewpoint, the division has no different signification. What has altered is the status of the family. While it was joint, the Department could treat the income as that of the family; but after partition, the Department could not say that it was still the income of the Hindu undivided family, when there was none.In the face of the finding that this was a genuine document and not a sham, and that it effectually divided the income and in the circumstances, the assets, the question answers itself in the negative, that is to say, that there were no materials to justify the finding that the income in the share of the commission agency of the Mills was the income of the Hindu undivided family. | 1 | 2,868 | 860 | ### 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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a unit does not become a partner, but only such of its members as in fact enter into a contractual relation with the stranger: the partnership will be governed by the Act."Further, the Privy Council in Appovier v. Rama Subba Aiyan, 11 Moo Ind App 75, observed :"Nothing can express more definitely a conversion of the tenancy, and with that conversion of the tenancy, and with that conversion a change of the status of the family quoad this property. The produce is no longer to be brought to the common chest, as representing the income of an undivided property, but the proceeds are to be enjoyed in six distinct equal shares by the members of the family, who are thenceforth to become entitled to those definite shares."The Bombay High Court quoted this passage, and stated that there must be a division of the rights as well as a division of the property; and unless the division effected a separation of the property into shares, it would remain only as a separation of the income after its accrual and would not affect the asset as such. In this view of the matter, the Bombay High Court held that the asset continued to be joint in spite of the division of the income after its accrual.10. In our opinion, here there are three different branches of law to notice. There is the law of Partnership, which takes no account of a Hindu undivided family. There is also the Hindu law, which permits a partition of the family and also a partial partition binding upon the family. There is then the Income-tax law, under which a particular income may be treated as the income of the Hindu undivided family or as the income of the separated members enjoying separate shares by partition.The fact of a partition in the Hindu law may have no effect upon the position of the partner, insofar as the law of Partnership is concerned, but it has full effect upon the family insofar as the Hindu law is concerned. Just as the fact of a Karta becoming a partner does not introduce the members of the undivided family into the partnership, the division of the family does not change the position of the partner vis-_is the other partner or partners.The Income-tax law before the partition takes note, factually, of the position of the Karta, and assesses not him qua partner but as representing the Hindu undivided family. In doing so, the Income-tax law looks not to the provisions of the Partnership Act, but to the provisions of Hindu law. When once the family has disrupted, the position under the partnership continues as before, but the position under the Hindu law changes. There is then no Hindu undivided family as a unit of assessment in point of fact, and the income which accrues, cannot be said to be of a Hindu undivided family.There is nothing in the Indian Income-tax law or the law of Partnership which prevents the members of a Hindu joint family from dividing any asset. Such division must, of course, be effective so as to bind the members; but Hindu law does not further require that the property must in every case be partitioned by metes and bounds, if separate enjoyment can otherwise be secured according to the shares of the members.For an asset of this kind, there was no other mode of partition open to the parties if they wished to retain the property and vet hold it not jointly but in severalty, and the law does not contemplate that a person should do the impossible. Indeed, the result would have been the same, even if the dividing members had said in so many words that they had partitioned the assets, because insofar as the firms were concerned, the step would have been wholly inconsequential.11. The respondent suggested that the family could have partitioned the managing agencies among the members of the family by allotting them severally; but that would not have been possible without a dissolution of the managing agency firms and their reconstitution, which was not altogether in the hands of Charandas Haridas. It was also suggested that the managing agencies could have been allotted to Charandas Haridas while the others took some other property, or a receiver could have been appointed. No doubt, there were many modes of partition which might have been adopted; but the question remains that if the family desired to partition these assets only and no more, could they have acted in some other manner to achieve the same result? No answer to this question was attempted.12. It is, therefore, manifest that the family took the fullest measure possible for dividing the joint interest into separate interests.There is no suggestion here that this division was a mere pretence; nor has the Appellate Tribunal given such a finding.The document was fully effective between the members of the family, and there was factually no Hindu undivided family in respect of these particular assets.The assets at all times stood in the name of Charandas Haridas, and looked at from the point of view of the law of Partnership, the family had no standing. The assets still are in the name of Charandas Haridas, and looked again from the same viewpoint, the division has no different signification. What has altered is the status of the family. While it was joint, the Department could treat the income as that of the family; but after partition, the Department could not say that it was still the income of the Hindu undivided family, when there was none.In the face of the finding that this was a genuine document and not a sham, and that it effectually divided the income and in the circumstances, the assets, the question answers itself in the negative, that is to say, that there were no materials to justify the finding that the income in the share of the commission agency of the Mills was the income of the Hindu undivided family.
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### Explanation:
10. In our opinion, here there are three different branches of law to notice. There is the law of Partnership, which takes no account of a Hindu undivided family. There is also the Hindu law, which permits a partition of the family and also a partial partition binding upon the family. There is then the Income-tax law, under which a particular income may be treated as the income of the Hindu undivided family or as the income of the separated members enjoying separate shares by partition.The fact of a partition in the Hindu law may have no effect upon the position of the partner, insofar as the law of Partnership is concerned, but it has full effect upon the family insofar as the Hindu law is concerned. Just as the fact of a Karta becoming a partner does not introduce the members of the undivided family into the partnership, the division of the family does not change the position of the partner vis-_is the other partner or partners.The Income-tax law before the partition takes note, factually, of the position of the Karta, and assesses not him qua partner but as representing the Hindu undivided family. In doing so, the Income-tax law looks not to the provisions of the Partnership Act, but to the provisions of Hindu law. When once the family has disrupted, the position under the partnership continues as before, but the position under the Hindu law changes. There is then no Hindu undivided family as a unit of assessment in point of fact, and the income which accrues, cannot be said to be of a Hindu undivided family.There is nothing in the Indian Income-tax law or the law of Partnership which prevents the members of a Hindu joint family from dividing any asset. Such division must, of course, be effective so as to bind the members; but Hindu law does not further require that the property must in every case be partitioned by metes and bounds, if separate enjoyment can otherwise be secured according to the shares of the members.For an asset of this kind, there was no other mode of partition open to the parties if they wished to retain the property and vet hold it not jointly but in severalty, and the law does not contemplate that a person should do the impossible. Indeed, the result would have been the same, even if the dividing members had said in so many words that they had partitioned the assets, because insofar as the firms were concerned, the step would have been wholly inconsequential.11. The respondent suggested that the family could have partitioned the managing agencies among the members of the family by allotting them severally; but that would not have been possible without a dissolution of the managing agency firms and their reconstitution, which was not altogether in the hands of Charandas Haridas. It was also suggested that the managing agencies could have been allotted to Charandas Haridas while the others took some other property, or a receiver could have been appointed. No doubt, there were many modes of partition which might have been adopted; but the question remains that if the family desired to partition these assets only and no more, could they have acted in some other manner to achieve the same result? No answer to this question was attempted.12. It is, therefore, manifest that the family took the fullest measure possible for dividing the joint interest into separate interests.There is no suggestion here that this division was a mere pretence; nor has the Appellate Tribunal given such a finding.The document was fully effective between the members of the family, and there was factually no Hindu undivided family in respect of these particular assets.The assets at all times stood in the name of Charandas Haridas, and looked at from the point of view of the law of Partnership, the family had no standing. The assets still are in the name of Charandas Haridas, and looked again from the same viewpoint, the division has no different signification. What has altered is the status of the family. While it was joint, the Department could treat the income as that of the family; but after partition, the Department could not say that it was still the income of the Hindu undivided family, when there was none.In the face of the finding that this was a genuine document and not a sham, and that it effectually divided the income and in the circumstances, the assets, the question answers itself in the negative, that is to say, that there were no materials to justify the finding that the income in the share of the commission agency of the Mills was the income of the Hindu undivided family.
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Workmen of New Egerton Woollen Mills Vs. New Egerton Woollen Mills and Others | wage-scales in such a manner as to equalize with those of the Orient Carpet Manufacturers. It was also urged on their behalf that the increments awarded by the tribunal were not adequate and lastly that the award should have been brought into force from the date of the demand or at least from the date of the award. There is, in our view, considerable justification for the workmens first contention. Taking the dearness allowance payable by the two companies as on 1 November 1963, the date when the award was directed by the tribunal to come into force, the wage-scales as awarded by the tribunal fell short of those existing in the Orient Carpet Manufacturers on that day. A comparison of the two wage-scales clearly brings out the disparity between the two of them. Whereas in the Orient Carpet Manufacturers the maximum which an unskilled workman was entitled to get was Rs. 118.50, the maximum which an unskilled workman under the award can get is Rs. 88 only. Similarly, the maximum which all the other categories of workmen in Orient Carpet Manufacturers were entitled to are higher than those awarded by the tribunal. A glance at the minimum consolidated wages fixed by the Punjab Government by their said notification also shows that the wage-scales awarded by the tribunal are hardly better than those prescribed under the said notification. Since the tribunal accepted the Orient Carpet Manufacturers as the only comparable unit in the region it could not with any reason fix wage-scales at levels lower or less favourable than those existing in that company. There is, therefore, force in the workmens complaint that the revision made by the tribunal was neither fair nor adequate. Since there is no question of the company not having the requisite financial capacity, we propose to modify the wage-scles awarded by the tribunal so as at least to bring them in line with those in the Orient Carpet Manufacturers, on 1 November 1963. The scales of basis wages so modified by us would have to be follows :(1) Unskilled ... Rs. 30-2-60(2) Semiskilled (lower) ... Rs. 40-2-60-3-75(3) Semiskilled (higher) ... Rs. 45-2-65-4-105(4) Skilled (lower) ... Rs. 50-3-80-5-130(5) Skilled (higher) ... Rs. 70-7-120-6-180(6) Highly skilled ... Rs. 100-6-130-7-235There is no occasion for revising the rates of dearness allowance as dearness allowance is already linked with the index of cost of living and the tribunal has awarded Re. 1 for every rise or fall or two points in the said index as from 1 November 1963. The result of our modifying the wage-scales is that the workmen will be entitled to the following wage-scales including the dearness allowance :WAGES INCLUSIVE OF DEARNESS ALLOWANCESerial Class of Starting 10 years 15 years 20 years Number. workmen Rs. Rs. Rs. Rs.1. Unskilled (lower) ... 78.00 110.50 121.50 ...2. Semiskilled ... 88.00 121.50 136.50 ... (higher)3. Semiskilled ... 93.00 126.50 ... 173.50 (lower)4. Skilled ... 111.50 141.50 ... 198.50 (higher)5. Skilled ... 131.50 188.50 ... 248.50 (lower)6. Highly skilled ... 168.50 233.50 ... 329.00 (higher)8. We have not made any change in the scale fixed by the tribunal for the semiskilled (lower) at it practically corresponds with that in the Orient Carpet Manufacturers. Similarly, no change is made in the scale for the highly skilled for the same reason except that as in the Orient Carpet Manufacturers, we have increased the increment span of 5 years so as to make it correspond with that in the Orient Carpet Manufactures. A modification in the adjustments in the revised scales made by the tribunal is also, in our view, necessary. Equating a workman who has put in six years of service with another workman who has put in 10 or 15 years of service does not appear to be either fair or just particularly as the wage-scales prevailing in the company have been for the last several years low. The principle followed in making such adjustments is that generally they should be granted when wage-scales are fixed for the first time. But that does not mean that where they are previously in existence such adjustments cannot be granted even though the scale have been low for a number of years. In such a case justice requires that adjustments should be made even a second time. In view of the finding by the tribunal that there has been no revision in the wage-scales since 1955 and wage-scales have all along been fairly low we think the adjustments granted by the tribunal should be liberalized. We direct therefore, that while fitting the workmen in the wage-scales modified by us as above, one increment should be given to those workmen who have put in three years continuous service, two increments should be given to those who have put in six years continuous service and three increments should be given to those who have put in continuous service for ten years or more. Those who have reached the maximum or more than the maximum would not be entitled to any increment.As regards the date on which the award should come into force, industrial tribunals have treated the date of demand and the date of the award as two extreme points. The tribunals, however, have discretion to fix any intermediate date depending upon the circumstances of each case. As has been said more than once, this Court would be reluctant to interfere with the date fixed by the tribunal if it has been done in the proper exercise of its discretion. In the present case the tribunal felt that in fairness to both the parties the intermediate date, namely, 1 November 1963, when it passed its interim award was the proper date from which the award should come into operation. The ground for selecting this date was that according to the tribunal the prices of commodities began to rise steeply in this region from that date. That ground has not been controverted by any material to the contrary. Their can, therefore, barely be any ground for our interference.9. | 1[ds]A number of decisions both of this Court as also of industrial tribunals have laid down that two principal factors which must weigh while fixing or revising wage-scales and grades are : how the wages prevailing in the establishment in question compare with those given to workmen of similar grade and scale by similar establishments in the same industry or in their absence in similar establishments in other industries in the region and what wage-scales the establishment in question can pay without any undue strain on its financiallatter question does not arise in the present case as the financial capacity of the company has, for the reasons afore-stated, not been disputed. In consideration the first question, the tribunal has first to ascertain whether there are comparable concerns in the same industry in the region. In doing so, it has to take into account the extent of business, the capital invested, the profits, the nature of business, the standing, the strength of labour force, the reserves, if any, the dividends paid, the future prospects of the business of concerns put forward before it as comparable and other relevant facts. Obviously, there can be no comparison between a small struggling unit and a large flourishing concern of long standing. Where there are no such comparable concerns in the same industry in the region the tribunal can look to concerns in other industries in the region for comparison but in that case such concerns should be as similar as possible and not disproportionately large or absolutelyseen earlier, though there are a large number of units in the same industry in Amritsar region there was none, which in size, resources or labour force, could properly compare with the respondent-company and the nearest which could be said to compare with it was the Orient Carpet Manufactures which at the material time had a labour force of about 1, 000 men as compared with about 3, 000 men employed in the respondent-company. The workmen in these circumstances contended and the tribunal accepted that the Orient Carpet Manufactures should be taken as a Comparable Concerns. Unfortunately, although it was found that there was no truly comparable concern in the same industry in the region no attempt was made to find out whether there were comparable concerns in the other industries in the region. The result was that the tribunal could fall back upon the Orient Carpet Manufactures only which the workmen had claimed to be the only comparableundoubtedly is correct. But that can hardly be the ground for the Orient Carpet Manufactures not being considered as a comparable concern. The reason is that the tribunal fixed the revised wage-scales on the basis of dearness allowance payable by the respondent-company on 1 November 1963 after taking into account the consolidated wage-scales payable by the Orient Carpent Manufacturers which included dearness allowance payable on that date. It is true that the dearness allowing being variable in the respondent-company the amounts of dearness allowance payable by the respondent-company would vary depending upon the rise or fall in the index of cost of living. But that difference alone would not preclude the Orient Carpent Manufactures being accepted as a comparable concern in view of the respondent-company being very much larger in every sense than the Orient Carpet Manufacturers. The contention urged on behalf of the company, therefor, cannot benumber of decisions both of this Court as also of industrial tribunals have laid down that two principal factors which must weigh while fixing or revising wage-scales and grades are : how the wages prevailing in the establishment in question compare with those given to workmen of similar grade and scale by similar establishments in the same industry or in their absence in similar establishments in other industries in the region and what wage-scales the establishment in question can pay without any undue strain on its financialer question does not arise in the present case as the financial capacity of the company has, for the reasons afore-stated, not been disputed. In consideration the first question, the tribunal has first to ascertain whether there are comparable concerns in the same industry in the region. In doing so, it has to take into account the extent of business, the capital invested, the profits, the nature of business, the standing, the strength of labour force, the reserves, if any, the dividends paid, the future prospects of the business of concerns put forward before it as comparable and other relevant facts. Obviously, there can be no comparison between a small struggling unit and a large flourishing concern of long standing. Where there are no such comparable concerns in the same industry in the region the tribunal can look to concerns in other industries in the region for comparison but in that case such concerns should be as similar as possible and not disproportionately large or absolutelydissimilar - of. French Motor Car Company, Ltd. v. Their workmen [1962 - I L.L.J. 744]; Williamsons (India) (Private), Ltd, v. Its workmen [1962 - I L.L.J. 302]; Novex Dry Cleaners v. Its workmen [1962 - I L.L.J. 271] and Kamani Metals and Alloys, Ltd. v. Their workmen [1967 - II L.L.J. 55].Asseen earlier, though there are a large number of units in the same industry in Amritsar region there was none, which in size, resources or labour force, could properly compare with the respondent-company and the nearest which could be said to compare with it was the Orient Carpet Manufactures which at the material time had a labour force of about 1, 000 men as compared with about 3, 000 men employed in the respondent-company. The workmen in these circumstances contended and the tribunal accepted that the Orient Carpet Manufactures should be taken as a Comparable Concerns. Unfortunately, although it was found that there was no truly comparable concern in the same industry in the region no attempt was made to find out whether there were comparable concerns in the other industries in the region. The result was that the tribunal could fall back upon the Orient Carpet Manufactures only which the workmen had claimed to be the only comparabley is correct. But that can hardly be the ground for the Orient Carpet Manufactures not being considered as a comparable concern. The reason is that the tribunal fixed the revised wage-scales on the basis of dearness allowance payable by the respondent-company on 1 November 1963 after taking into account the consolidated wage-scales payable by the Orient Carpent Manufacturers which included dearness allowance payable on that date. It is true that the dearness allowing being variable in the respondent-company the amounts of dearness allowance payable by the respondent-company would vary depending upon the rise or fall in the index of cost of living. But that difference alone would not preclude the Orient Carpent Manufactures being accepted as a comparable concern in view of the respondent-company being very much larger in every sense than the Orient Carpet Manufacturers. The contention urged on behalf of the company, therefor, cannot beis, in our view, considerable justification for the workmens first contention. Taking the dearness allowance payable by the two companies as on 1 November 1963, the date when the award was directed by the tribunal to come into force, the wage-scales as awarded by the tribunal fell short of those existing in the Orient Carpet Manufacturers on that day. A comparison of the two wage-scales clearly brings out the disparity between the two of them. Whereas in the Orient Carpet Manufacturers the maximum which an unskilled workman was entitled to get was Rs. 118.50, the maximum which an unskilled workman under the award can get is Rs. 88 only. Similarly, the maximum which all the other categories of workmen in Orient Carpet Manufacturers were entitled to are higher than those awarded by the tribunal. A glance at the minimum consolidated wages fixed by the Punjab Government by their said notification also shows that the wage-scales awarded by the tribunal are hardly better than those prescribed under the said notification. Since the tribunal accepted the Orient Carpet Manufacturers as the only comparable unit in the region it could not with any reason fix wage-scales at levels lower or less favourable than those existing in that company. There is, therefore, force in the workmens complaint that the revision made by the tribunal was neither fair nor adequate. Since there is no question of the company not having the requisite financial capacity, we propose to modify the wage-scles awarded by the tribunal so as at least to bring them in line with those in the Orient Carpet Manufacturers, on 1 November 1963. The scales of basis wages so modified by us would have to be followsUnskilled ... Rs. 30-2-60(2) Semiskilled (lower) ... Rs. 40-2-60-3-75(3) Semiskilled (higher) ... Rs. 45-2-65-4-105(4) Skilled (lower) ... Rs. 50-3-80-5-130(5) Skilled (higher) ... Rs. 70-7-120-6-180(6) Highly skilled ... Rs.is no occasion for revising the rates of dearness allowance as dearness allowance is already linked with the index of cost of living and the tribunal has awarded Re. 1 for every rise or fall or two points in the said index as from 1 November 1963. The result of our modifying the wage-scales is that the workmen will be entitled to the following wage-scales including the dearness allowanceINCLUSIVE OF DEARNESS ALLOWANCESerial Class of Starting 10 years 15 years 20 years Number. workmen Rs. Rs. Rs. Rs.1. Unskilled (lower) ... 78.00 110.50 121.50 ...2. Semiskilled ... 88.00 121.50 136.50 ... (higher)3. Semiskilled ... 93.00 126.50 ... 173.50 (lower)4. Skilled ... 111.50 141.50 ... 198.50 (higher)5. Skilled ... 131.50 188.50 ... 248.50 (lower)6. Highly skilled ... 168.50 233.50 ... 329.00have not made any change in the scale fixed by the tribunal for the semiskilled (lower) at it practically corresponds with that in the Orient Carpet Manufacturers. Similarly, no change is made in the scale for the highly skilled for the same reason except that as in the Orient Carpet Manufacturers, we have increased the increment span of 5 years so as to make it correspond with that in the Orient Carpet Manufactures. A modification in the adjustments in the revised scales made by the tribunal is also, in our view, necessary. Equating a workman who has put in six years of service with another workman who has put in 10 or 15 years of service does not appear to be either fair or just particularly as the wage-scales prevailing in the company have been for the last several years low. The principle followed in making such adjustments is that generally they should be granted when wage-scales are fixed for the first time. But that does not mean that where they are previously in existence such adjustments cannot be granted even though the scale have been low for a number of years. In such a case justice requires that adjustments should be made even a second time. In view of the finding by the tribunal that there has been no revision in the wage-scales since 1955 and wage-scales have all along been fairly low we think the adjustments granted by the tribunal should be liberalized. We direct therefore, that while fitting the workmen in the wage-scales modified by us as above, one increment should be given to those workmen who have put in three years continuous service, two increments should be given to those who have put in six years continuous service and three increments should be given to those who have put in continuous service for ten years or more. Those who have reached the maximum or more than the maximum would not be entitled to any increment.As regards the date on which the award should come into force, industrial tribunals have treated the date of demand and the date of the award as two extreme points. The tribunals, however, have discretion to fix any intermediate date depending upon the circumstances of each case. As has been said more than once, this Court would be reluctant to interfere with the date fixed by the tribunal if it has been done in the proper exercise of its discretion. In the present case the tribunal felt that in fairness to both the parties the intermediate date, namely, 1 November 1963, when it passed its interim award was the proper date from which the award should come into operation., in our view, considerable justification for the workmens first contention. Taking the dearness allowance payable by the two companies as on 1 November 1963, the date when the award was directed by the tribunal to come into force, the wage-scales as awarded by the tribunal fell short of those existing in the Orient Carpet Manufacturers on that day. A comparison of the two wage-scales clearly brings out the disparity between the two of them. Whereas in the Orient Carpet Manufacturers the maximum which an unskilled workman was entitled to get was Rs. 118.50, the maximum which an unskilled workman under the award can get is Rs. 88 only. Similarly, the maximum which all the other categories of workmen in Orient Carpet Manufacturers were entitled to are higher than those awarded by the tribunal. A glance at the minimum consolidated wages fixed by the Punjab Government by their said notification also shows that the wage-scales awarded by the tribunal are hardly better than those prescribed under the said notification. Since the tribunal accepted the Orient Carpet Manufacturers as the only comparable unit in the region it could not with any reason fix wage-scales at levels lower or less favourable than those existing in that company. There is, therefore, force in the workmens complaint that the revision made by the tribunal was neither fair nor adequate. Since there is no question of the company not having the requisite financial capacity, we propose to modify the wage-scles awarded by the tribunal so as at least to bring them in line with those in the Orient Carpet Manufacturers, on 1 November 1963. The scales of basis wages so modified by us would have to be followsd ... Rs. 30-2-60(2) Semiskilled (lower) ... Rs. 40-2-60-3-75(3) Semiskilled (higher) ... Rs. 45-2-65-4-105(4) Skilled (lower) ... Rs. 50-3-80-5-130(5) Skilled (higher) ... Rs. 70-7-120-6-180(6) Highly skilled ... Rs.is no occasion for revising the rates of dearness allowance as dearness allowance is already linked with the index of cost of living and the tribunal has awarded Re. 1 for every rise or fall or two points in the said index as from 1 November 1963. The result of our modifying the wage-scales is that the workmen will be entitled to the following wage-scales including the dearness allowanceE OF DEARNESS ALLOWANCESerial Class of Starting 10 years 15 years 20 years Number. workmen Rs. Rs. Rs. Rs.1. Unskilled (lower) ... 78.00 110.50 121.50 ...2. Semiskilled ... 88.00 121.50 136.50 ... (higher)3. Semiskilled ... 93.00 126.50 ... 173.50 (lower)4. Skilled ... 111.50 141.50 ... 198.50 (higher)5. Skilled ... 131.50 188.50 ... 248.50 (lower)6. Highly skilled ... 168.50 233.50 ... 329.00e not made any change in the scale fixed by the tribunal for the semiskilled (lower) at it practically corresponds with that in the Orient Carpet Manufacturers. Similarly, no change is made in the scale for the highly skilled for the same reason except that as in the Orient Carpet Manufacturers, we have increased the increment span of 5 years so as to make it correspond with that in the Orient Carpet Manufactures. A modification in the adjustments in the revised scales made by the tribunal is also, in our view, necessary. Equating a workman who has put in six years of service with another workman who has put in 10 or 15 years of service does not appear to be either fair or just particularly as the wage-scales prevailing in the company have been for the last several years low. The principle followed in making such adjustments is that generally they should be granted when wage-scales are fixed for the first time. But that does not mean that where they are previously in existence such adjustments cannot be granted even though the scale have been low for a number of years. In such a case justice requires that adjustments should be made even a second time. In view of the finding by the tribunal that there has been no revision in the wage-scales since 1955 and wage-scales have all along been fairly low we think the adjustments granted by the tribunal should be liberalized. We direct therefore, that while fitting the workmen in the wage-scales modified by us as above, one increment should be given to those workmen who have put in three years continuous service, two increments should be given to those who have put in six years continuous service and three increments should be given to those who have put in continuous service for ten years or more. Those who have reached the maximum or more than the maximum would not be entitled to any increment.As regards the date on which the award should come into force, industrial tribunals have treated the date of demand and the date of the award as two extreme points. The tribunals, however, have discretion to fix any intermediate date depending upon the circumstances of each case. As has been said more than once, this Court would be reluctant to interfere with the date fixed by the tribunal if it has been done in the proper exercise of its discretion. In the present case the tribunal felt that in fairness to both the parties the intermediate date, namely, 1 November 1963, when it passed its interim award was the proper date from which the award should come into operation. | 1 | 5,252 | 3,243 | ### Instruction:
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wage-scales in such a manner as to equalize with those of the Orient Carpet Manufacturers. It was also urged on their behalf that the increments awarded by the tribunal were not adequate and lastly that the award should have been brought into force from the date of the demand or at least from the date of the award. There is, in our view, considerable justification for the workmens first contention. Taking the dearness allowance payable by the two companies as on 1 November 1963, the date when the award was directed by the tribunal to come into force, the wage-scales as awarded by the tribunal fell short of those existing in the Orient Carpet Manufacturers on that day. A comparison of the two wage-scales clearly brings out the disparity between the two of them. Whereas in the Orient Carpet Manufacturers the maximum which an unskilled workman was entitled to get was Rs. 118.50, the maximum which an unskilled workman under the award can get is Rs. 88 only. Similarly, the maximum which all the other categories of workmen in Orient Carpet Manufacturers were entitled to are higher than those awarded by the tribunal. A glance at the minimum consolidated wages fixed by the Punjab Government by their said notification also shows that the wage-scales awarded by the tribunal are hardly better than those prescribed under the said notification. Since the tribunal accepted the Orient Carpet Manufacturers as the only comparable unit in the region it could not with any reason fix wage-scales at levels lower or less favourable than those existing in that company. There is, therefore, force in the workmens complaint that the revision made by the tribunal was neither fair nor adequate. Since there is no question of the company not having the requisite financial capacity, we propose to modify the wage-scles awarded by the tribunal so as at least to bring them in line with those in the Orient Carpet Manufacturers, on 1 November 1963. The scales of basis wages so modified by us would have to be follows :(1) Unskilled ... Rs. 30-2-60(2) Semiskilled (lower) ... Rs. 40-2-60-3-75(3) Semiskilled (higher) ... Rs. 45-2-65-4-105(4) Skilled (lower) ... Rs. 50-3-80-5-130(5) Skilled (higher) ... Rs. 70-7-120-6-180(6) Highly skilled ... Rs. 100-6-130-7-235There is no occasion for revising the rates of dearness allowance as dearness allowance is already linked with the index of cost of living and the tribunal has awarded Re. 1 for every rise or fall or two points in the said index as from 1 November 1963. The result of our modifying the wage-scales is that the workmen will be entitled to the following wage-scales including the dearness allowance :WAGES INCLUSIVE OF DEARNESS ALLOWANCESerial Class of Starting 10 years 15 years 20 years Number. workmen Rs. Rs. Rs. Rs.1. Unskilled (lower) ... 78.00 110.50 121.50 ...2. Semiskilled ... 88.00 121.50 136.50 ... (higher)3. Semiskilled ... 93.00 126.50 ... 173.50 (lower)4. Skilled ... 111.50 141.50 ... 198.50 (higher)5. Skilled ... 131.50 188.50 ... 248.50 (lower)6. Highly skilled ... 168.50 233.50 ... 329.00 (higher)8. We have not made any change in the scale fixed by the tribunal for the semiskilled (lower) at it practically corresponds with that in the Orient Carpet Manufacturers. Similarly, no change is made in the scale for the highly skilled for the same reason except that as in the Orient Carpet Manufacturers, we have increased the increment span of 5 years so as to make it correspond with that in the Orient Carpet Manufactures. A modification in the adjustments in the revised scales made by the tribunal is also, in our view, necessary. Equating a workman who has put in six years of service with another workman who has put in 10 or 15 years of service does not appear to be either fair or just particularly as the wage-scales prevailing in the company have been for the last several years low. The principle followed in making such adjustments is that generally they should be granted when wage-scales are fixed for the first time. But that does not mean that where they are previously in existence such adjustments cannot be granted even though the scale have been low for a number of years. In such a case justice requires that adjustments should be made even a second time. In view of the finding by the tribunal that there has been no revision in the wage-scales since 1955 and wage-scales have all along been fairly low we think the adjustments granted by the tribunal should be liberalized. We direct therefore, that while fitting the workmen in the wage-scales modified by us as above, one increment should be given to those workmen who have put in three years continuous service, two increments should be given to those who have put in six years continuous service and three increments should be given to those who have put in continuous service for ten years or more. Those who have reached the maximum or more than the maximum would not be entitled to any increment.As regards the date on which the award should come into force, industrial tribunals have treated the date of demand and the date of the award as two extreme points. The tribunals, however, have discretion to fix any intermediate date depending upon the circumstances of each case. As has been said more than once, this Court would be reluctant to interfere with the date fixed by the tribunal if it has been done in the proper exercise of its discretion. In the present case the tribunal felt that in fairness to both the parties the intermediate date, namely, 1 November 1963, when it passed its interim award was the proper date from which the award should come into operation. The ground for selecting this date was that according to the tribunal the prices of commodities began to rise steeply in this region from that date. That ground has not been controverted by any material to the contrary. Their can, therefore, barely be any ground for our interference.9.
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the date on which the award should come into force, industrial tribunals have treated the date of demand and the date of the award as two extreme points. The tribunals, however, have discretion to fix any intermediate date depending upon the circumstances of each case. As has been said more than once, this Court would be reluctant to interfere with the date fixed by the tribunal if it has been done in the proper exercise of its discretion. In the present case the tribunal felt that in fairness to both the parties the intermediate date, namely, 1 November 1963, when it passed its interim award was the proper date from which the award should come into operation., in our view, considerable justification for the workmens first contention. Taking the dearness allowance payable by the two companies as on 1 November 1963, the date when the award was directed by the tribunal to come into force, the wage-scales as awarded by the tribunal fell short of those existing in the Orient Carpet Manufacturers on that day. A comparison of the two wage-scales clearly brings out the disparity between the two of them. Whereas in the Orient Carpet Manufacturers the maximum which an unskilled workman was entitled to get was Rs. 118.50, the maximum which an unskilled workman under the award can get is Rs. 88 only. Similarly, the maximum which all the other categories of workmen in Orient Carpet Manufacturers were entitled to are higher than those awarded by the tribunal. A glance at the minimum consolidated wages fixed by the Punjab Government by their said notification also shows that the wage-scales awarded by the tribunal are hardly better than those prescribed under the said notification. Since the tribunal accepted the Orient Carpet Manufacturers as the only comparable unit in the region it could not with any reason fix wage-scales at levels lower or less favourable than those existing in that company. There is, therefore, force in the workmens complaint that the revision made by the tribunal was neither fair nor adequate. Since there is no question of the company not having the requisite financial capacity, we propose to modify the wage-scles awarded by the tribunal so as at least to bring them in line with those in the Orient Carpet Manufacturers, on 1 November 1963. The scales of basis wages so modified by us would have to be followsd ... Rs. 30-2-60(2) Semiskilled (lower) ... Rs. 40-2-60-3-75(3) Semiskilled (higher) ... Rs. 45-2-65-4-105(4) Skilled (lower) ... Rs. 50-3-80-5-130(5) Skilled (higher) ... Rs. 70-7-120-6-180(6) Highly skilled ... Rs.is no occasion for revising the rates of dearness allowance as dearness allowance is already linked with the index of cost of living and the tribunal has awarded Re. 1 for every rise or fall or two points in the said index as from 1 November 1963. The result of our modifying the wage-scales is that the workmen will be entitled to the following wage-scales including the dearness allowanceE OF DEARNESS ALLOWANCESerial Class of Starting 10 years 15 years 20 years Number. workmen Rs. Rs. Rs. Rs.1. Unskilled (lower) ... 78.00 110.50 121.50 ...2. Semiskilled ... 88.00 121.50 136.50 ... (higher)3. Semiskilled ... 93.00 126.50 ... 173.50 (lower)4. Skilled ... 111.50 141.50 ... 198.50 (higher)5. Skilled ... 131.50 188.50 ... 248.50 (lower)6. Highly skilled ... 168.50 233.50 ... 329.00e not made any change in the scale fixed by the tribunal for the semiskilled (lower) at it practically corresponds with that in the Orient Carpet Manufacturers. Similarly, no change is made in the scale for the highly skilled for the same reason except that as in the Orient Carpet Manufacturers, we have increased the increment span of 5 years so as to make it correspond with that in the Orient Carpet Manufactures. A modification in the adjustments in the revised scales made by the tribunal is also, in our view, necessary. Equating a workman who has put in six years of service with another workman who has put in 10 or 15 years of service does not appear to be either fair or just particularly as the wage-scales prevailing in the company have been for the last several years low. The principle followed in making such adjustments is that generally they should be granted when wage-scales are fixed for the first time. But that does not mean that where they are previously in existence such adjustments cannot be granted even though the scale have been low for a number of years. In such a case justice requires that adjustments should be made even a second time. In view of the finding by the tribunal that there has been no revision in the wage-scales since 1955 and wage-scales have all along been fairly low we think the adjustments granted by the tribunal should be liberalized. We direct therefore, that while fitting the workmen in the wage-scales modified by us as above, one increment should be given to those workmen who have put in three years continuous service, two increments should be given to those who have put in six years continuous service and three increments should be given to those who have put in continuous service for ten years or more. Those who have reached the maximum or more than the maximum would not be entitled to any increment.As regards the date on which the award should come into force, industrial tribunals have treated the date of demand and the date of the award as two extreme points. The tribunals, however, have discretion to fix any intermediate date depending upon the circumstances of each case. As has been said more than once, this Court would be reluctant to interfere with the date fixed by the tribunal if it has been done in the proper exercise of its discretion. In the present case the tribunal felt that in fairness to both the parties the intermediate date, namely, 1 November 1963, when it passed its interim award was the proper date from which the award should come into operation.
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Ningappa Thotappa Angadi (Dead) through LRs. Vs. The Special Land Acquisition Officer and Another | Rs 25,000/- per gunta had been awarded, coupled with the fact that the acquired land in the present case and the land in LAC No. 44/2004 are located in adjoining villages and in close proximity of Hubli City, the Reference Court enhanced the compensation to Rs 25,000/- per gunta ( Rs 10,00,000/- per acre). 4. Aggrieved by the afore-stated enhancement, the Land Acquisition Officer preferred appeals before the High Court of Karnataka contending that the acquired land was actually ‘dry land? and that some other modes for determining its current market value should also have been applied. On the other hand, the claimants—affected land owners filed cross-objections seeking enhancement of compensation to Rs 26,000/- per gunta. The High Court of Karnataka vide impugned judgment dated 24.11.2008 allowed appeals filed by the Land Acquisition Officer. The High Court observed that the same Land Acquisition Officer had acquired some other land vide preliminary notification dated 13.05.2005 for the same public purpose and claimants/land owners in those proceedings entered into an agreement and a consent award was passed granting Rs 6,00,000/- per acre. Having noted the exampler, the High Court held that lands of the present claimants which were acquired 3 years prior to 13.05.2005, could not be granted compensation of Rs 26,000 per guntas. Consequently, the High Court applied the principle of annual depreciation @ 15% and modified the award passed by Reference Court and reduced the compensation to Rs. 5,10,000/- per acre. 5. Some of the affected land owners filed Special Leave Petition(s) and this Court vide judgement dated 11.11.2016 passed in Civil Appeal No. 2927/2010 allowed their appeal and set aside the judgment of the High Court insofar as the appellant(s) in the said case were concerned and restored the compensation of Rs 10,00,000/- per acre as awarded by the Reference Court. 6. The present appellant(s) who was/were also aggrieved by the impugned judgment of Karnataka High Court did not file the appeal along with other similarly situated land owners. He has come to this Court after a considerable long period seeking parity with the other exappropriated land owners and craves for restoration of the compensation as was awarded by the Reference Court. The short question which, thus, falls for consideration is whether the appellant(s) whose predecessor-in-interest did not assail the High Court order in respect of the land which is subject matter of this appeal as expeditiously as the other land owners under the same acquisition, be allowed to get the same compensation despite a delay of 2928 days and if so, whether they are entitled to seek interest as well? 7. We have heard the learned counsel for the parties and perused the record. 8. We find that the issue raised in this appeal is no longer res-integra. This Court in Dhiraj Singh (Dead) through LRs. and Others v. State of Haryana and Others (2014) 14 SCC 127 held that:"14. The appellants are identically situated and there is no reason to meet out a different treatment to them. We also note that, while in these cases, the High Court had refused to condone the delay and dismissed the LPAs of the appellants, other LPAs were allowed by the High Court itself by condoning the delay of the same magnitude in the same circumstances. 15. Equities can be balanced by denying the appellants? interest for the period for which they did not approach the Court. The substantive rights of the appellants should not be allowed to be defeated on technical grounds by taking hypertechnical view of self-imposed limitations. In the matter of compensation for land acquisition, we are of the view that approach of the Court has to be pragmatic and not pedantic." [Emphasis applied]9. The afore-cited view has been consistently followed by this Court in a series of cases before and after the decision in Dhiraj Singh?s (dead) case (supra). In Imrat Lal & Ors. v. Land Acquisition Collector & Ors.2014 14 SCC 133 it was observed that the delay in filing the Special Leave Petition cannot be the reason to deny just and fair compensation to the claimants. This Court observed that a liberal approach should be adopted in such like matters. In Huchanagouda v. Assistant Commissioner and Land Acquisition Officer 2019 SCC Online SC 990 also this Court condoned the delay and restored parity in the matter of grant of compensation though with a condition ?that for the period of delay in filing and in refiling the Special Leave Petitions, the appellant-claimant(s) shall not be entitled to any interest on the enhanced compenation and statutory amount.? 10. It is undeniable that this Court vide judgment dated November 11, 2016 passed in C.A. No. 2927/2010 (Ningappa Thotappa Angadi v. Special Land Acquisition Officer & Anr.) has set aside the order of the High Court and restored the compensation as was awarded by the Reference Court. In the cited case, this Court held as follows:?We have heard the learned counsel for the parties to some length and carefully perused the material on record. We are of the considered opinion that the impugned judgment and order of the High Court deserves to be set aside and judgment and order passed by the Reference Court restored. We say so because, this Court has in a similar appeal directed against the very same order set aside the impugned judgment and restored the enhancement granted by the Reference Court. We see no reason to take a different view in the present case. We, accordingly, allow this appeal and while setting aside the impugned judgment insofar as the same relates to the appellant, restore the judgment and order passed by the Reference Court. The parties shall, however, bear their own costs.?11. The appellant(s) are also similarly placed claimants. They are, thus entitled to seek parity and claim the same amount of fair and just compensation as has been awarded to other land owners. The appellant(s) are, however, not entitled to seek interest for the period for which they did not approach this Court. | 1[ds]8. We find that the issue raised in this appeal is no longer res-integra. This Court in Dhiraj Singh (Dead) through LRs. and Others v. State of Haryana and Others (2014) 14 SCC 127 heldThe appellants are identically situated and there is no reason to meet out a different treatment to them. We also note that, while in these cases, the High Court had refused to condone the delay and dismissed the LPAs of the appellants, other LPAs were allowed by the High Court itself by condoning the delay of the same magnitude in the same circumstances.Equities can be balanced by denying the appellants? interest for the period for which they did not approach the Court. The substantive rights of the appellants should not be allowed to be defeated on technical grounds by taking hypertechnical view of self-imposed limitations. In the matter of compensation for land acquisition, we are of the view that approach of the Court has to be pragmatic and not pedantic.The afore-cited view has been consistently followed by this Court in a series of cases before and after the decision in Dhiraj Singh?s (dead) case (supra). In Imrat Lal & Ors. v. Land Acquisition Collector & Ors.2014 14 SCC 133 it was observed that the delay in filing the Special Leave Petition cannot be the reason to deny just and fair compensation to the claimants. This Court observed that a liberal approach should be adopted in such like matters. In Huchanagouda v. Assistant Commissioner and Land Acquisition Officer 2019 SCC Online SC 990 also this Court condoned the delay and restored parity in the matter of grant of compensation though with a condition?that for the period of delay in filing and in refiling the Special Leave Petitions, the appellant-claimant(s) shall not be entitled to any interest on the enhanced compenation and statutory amount.It is undeniable that this Court vide judgment dated November 11, 2016 passed in C.A. No. 2927/2010 (Ningappa Thotappa Angadi v. Special Land Acquisition Officer & Anr.) has set aside the order of the High Court and restored the compensation as was awarded by the Reference Court. In the cited case, this Court held ashave heard the learned counsel for the parties to some length and carefully perused the material on record. We are of the considered opinion that the impugned judgment and order of the High Court deserves to be set aside and judgment and order passed by the Reference Court restored. We say so because, this Court has in a similar appeal directed against the very same order set aside the impugned judgment and restored the enhancement granted by the Reference Court. We see no reason to take a different view in the present case. We, accordingly, allow this appeal and while setting aside the impugned judgment insofar as the same relates to the appellant, restore the judgment and order passed by the Reference Court. The parties shall, however, bear their own costs.The appellant(s) are also similarly placed claimants. They are, thusentitled to seek parity and claim the same amount of fair and just compensation as has been awarded to other land owners. The appellant(s) are, however, not entitled to seek interest for the period for which they did not approach this Court. | 1 | 1,418 | 607 | ### 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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Rs 25,000/- per gunta had been awarded, coupled with the fact that the acquired land in the present case and the land in LAC No. 44/2004 are located in adjoining villages and in close proximity of Hubli City, the Reference Court enhanced the compensation to Rs 25,000/- per gunta ( Rs 10,00,000/- per acre). 4. Aggrieved by the afore-stated enhancement, the Land Acquisition Officer preferred appeals before the High Court of Karnataka contending that the acquired land was actually ‘dry land? and that some other modes for determining its current market value should also have been applied. On the other hand, the claimants—affected land owners filed cross-objections seeking enhancement of compensation to Rs 26,000/- per gunta. The High Court of Karnataka vide impugned judgment dated 24.11.2008 allowed appeals filed by the Land Acquisition Officer. The High Court observed that the same Land Acquisition Officer had acquired some other land vide preliminary notification dated 13.05.2005 for the same public purpose and claimants/land owners in those proceedings entered into an agreement and a consent award was passed granting Rs 6,00,000/- per acre. Having noted the exampler, the High Court held that lands of the present claimants which were acquired 3 years prior to 13.05.2005, could not be granted compensation of Rs 26,000 per guntas. Consequently, the High Court applied the principle of annual depreciation @ 15% and modified the award passed by Reference Court and reduced the compensation to Rs. 5,10,000/- per acre. 5. Some of the affected land owners filed Special Leave Petition(s) and this Court vide judgement dated 11.11.2016 passed in Civil Appeal No. 2927/2010 allowed their appeal and set aside the judgment of the High Court insofar as the appellant(s) in the said case were concerned and restored the compensation of Rs 10,00,000/- per acre as awarded by the Reference Court. 6. The present appellant(s) who was/were also aggrieved by the impugned judgment of Karnataka High Court did not file the appeal along with other similarly situated land owners. He has come to this Court after a considerable long period seeking parity with the other exappropriated land owners and craves for restoration of the compensation as was awarded by the Reference Court. The short question which, thus, falls for consideration is whether the appellant(s) whose predecessor-in-interest did not assail the High Court order in respect of the land which is subject matter of this appeal as expeditiously as the other land owners under the same acquisition, be allowed to get the same compensation despite a delay of 2928 days and if so, whether they are entitled to seek interest as well? 7. We have heard the learned counsel for the parties and perused the record. 8. We find that the issue raised in this appeal is no longer res-integra. This Court in Dhiraj Singh (Dead) through LRs. and Others v. State of Haryana and Others (2014) 14 SCC 127 held that:"14. The appellants are identically situated and there is no reason to meet out a different treatment to them. We also note that, while in these cases, the High Court had refused to condone the delay and dismissed the LPAs of the appellants, other LPAs were allowed by the High Court itself by condoning the delay of the same magnitude in the same circumstances. 15. Equities can be balanced by denying the appellants? interest for the period for which they did not approach the Court. The substantive rights of the appellants should not be allowed to be defeated on technical grounds by taking hypertechnical view of self-imposed limitations. In the matter of compensation for land acquisition, we are of the view that approach of the Court has to be pragmatic and not pedantic." [Emphasis applied]9. The afore-cited view has been consistently followed by this Court in a series of cases before and after the decision in Dhiraj Singh?s (dead) case (supra). In Imrat Lal & Ors. v. Land Acquisition Collector & Ors.2014 14 SCC 133 it was observed that the delay in filing the Special Leave Petition cannot be the reason to deny just and fair compensation to the claimants. This Court observed that a liberal approach should be adopted in such like matters. In Huchanagouda v. Assistant Commissioner and Land Acquisition Officer 2019 SCC Online SC 990 also this Court condoned the delay and restored parity in the matter of grant of compensation though with a condition ?that for the period of delay in filing and in refiling the Special Leave Petitions, the appellant-claimant(s) shall not be entitled to any interest on the enhanced compenation and statutory amount.? 10. It is undeniable that this Court vide judgment dated November 11, 2016 passed in C.A. No. 2927/2010 (Ningappa Thotappa Angadi v. Special Land Acquisition Officer & Anr.) has set aside the order of the High Court and restored the compensation as was awarded by the Reference Court. In the cited case, this Court held as follows:?We have heard the learned counsel for the parties to some length and carefully perused the material on record. We are of the considered opinion that the impugned judgment and order of the High Court deserves to be set aside and judgment and order passed by the Reference Court restored. We say so because, this Court has in a similar appeal directed against the very same order set aside the impugned judgment and restored the enhancement granted by the Reference Court. We see no reason to take a different view in the present case. We, accordingly, allow this appeal and while setting aside the impugned judgment insofar as the same relates to the appellant, restore the judgment and order passed by the Reference Court. The parties shall, however, bear their own costs.?11. The appellant(s) are also similarly placed claimants. They are, thus entitled to seek parity and claim the same amount of fair and just compensation as has been awarded to other land owners. The appellant(s) are, however, not entitled to seek interest for the period for which they did not approach this Court.
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8. We find that the issue raised in this appeal is no longer res-integra. This Court in Dhiraj Singh (Dead) through LRs. and Others v. State of Haryana and Others (2014) 14 SCC 127 heldThe appellants are identically situated and there is no reason to meet out a different treatment to them. We also note that, while in these cases, the High Court had refused to condone the delay and dismissed the LPAs of the appellants, other LPAs were allowed by the High Court itself by condoning the delay of the same magnitude in the same circumstances.Equities can be balanced by denying the appellants? interest for the period for which they did not approach the Court. The substantive rights of the appellants should not be allowed to be defeated on technical grounds by taking hypertechnical view of self-imposed limitations. In the matter of compensation for land acquisition, we are of the view that approach of the Court has to be pragmatic and not pedantic.The afore-cited view has been consistently followed by this Court in a series of cases before and after the decision in Dhiraj Singh?s (dead) case (supra). In Imrat Lal & Ors. v. Land Acquisition Collector & Ors.2014 14 SCC 133 it was observed that the delay in filing the Special Leave Petition cannot be the reason to deny just and fair compensation to the claimants. This Court observed that a liberal approach should be adopted in such like matters. In Huchanagouda v. Assistant Commissioner and Land Acquisition Officer 2019 SCC Online SC 990 also this Court condoned the delay and restored parity in the matter of grant of compensation though with a condition?that for the period of delay in filing and in refiling the Special Leave Petitions, the appellant-claimant(s) shall not be entitled to any interest on the enhanced compenation and statutory amount.It is undeniable that this Court vide judgment dated November 11, 2016 passed in C.A. No. 2927/2010 (Ningappa Thotappa Angadi v. Special Land Acquisition Officer & Anr.) has set aside the order of the High Court and restored the compensation as was awarded by the Reference Court. In the cited case, this Court held ashave heard the learned counsel for the parties to some length and carefully perused the material on record. We are of the considered opinion that the impugned judgment and order of the High Court deserves to be set aside and judgment and order passed by the Reference Court restored. We say so because, this Court has in a similar appeal directed against the very same order set aside the impugned judgment and restored the enhancement granted by the Reference Court. We see no reason to take a different view in the present case. We, accordingly, allow this appeal and while setting aside the impugned judgment insofar as the same relates to the appellant, restore the judgment and order passed by the Reference Court. The parties shall, however, bear their own costs.The appellant(s) are also similarly placed claimants. They are, thusentitled to seek parity and claim the same amount of fair and just compensation as has been awarded to other land owners. The appellant(s) are, however, not entitled to seek interest for the period for which they did not approach this Court.
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Rashtriya Chem. & Fertilizers Ltd. Vs. General Employees Association | be an administrative one but the same would not be beyond the pale of judicial review. It must, therefore, apply its mind before making a reference on the basis of the materials placed before it by the workmen and/or management, as the case may be. While doing so, it may be inappropriate for the same authority on the basis of the materials that a notification under Section 10(1)(d) of the 1947 Act be issued, although it stands judicially determined that the workmen were employed by the contractor. The state exercises administrative power both in relation to abolition of contract labour in terms of section 10 of the 1970 Act as also in relation to making a reference for industrial adjudication to labour court or a Tribunal under Section 10(1)(d) of the 1947 Act. While issuing a notification under the 1970 Act, the State would have to proceed on the basis that the principal employer had appointed contractors and such appointments are valid in law, but while referring a dispute for industrial adjudication, validity of appointment of the contractor would itself be an issue as the state must prima facie satisfy itself that there exists a dispute as to whether the workmen are in fact not employed by the contractor but by the management. We are, therefore, with respect, unable to agree with the opinion of the High Court. We would, however, hasten to add that this judgment shall not come in the way of the appropriate government to apply its mind for the purpose of issuance of a notification under Section 10 of the 1970 Act." 8. The exception to the above is, when the Court finds that the appropriate government refuses to make a reference of a dispute is unjustified. In such circumstances, the court may direct the government to make a reference Sankari Cement Alai Thozhilalar Munnetra Sangam, Tamil Nadu v. Government of Tamil Nadu and Anr. (1983 (1) SCC 304 ), V. Veerarajan and Ors. v. Government of Tamil and Ors. (1987 (1) SCC 479 and TELCO Convoy Drivers Mazdoor Sangh and Anr. v. State of Bihar & Ors. (1989 (3) SCC 271 ). 9. The Circular dated 8.11.2000 of the Central Government which was the subject matter of challenge in the first matter is extracted below: "I am directed to invite your kind attention to the above cited subject and to say that the matter relating to the prohibition of employment of contract labour in the establishment of Rashtriya Chemicals and Fertilizers Ltd., in their plants at Chembur, Mumbai and Thal District Raigad, Maharashtra was discussed in the 44 Meeting of the Central Advisory Contract Labour Boardheld on 6-7th April, 2000 under the Chairmanship of Shri T.S. Shankaran. The Board made the following recommendations to the Government:"The Board observed that the Committee has examined in detail the issue with respect to the factors set out in Section 10 of the Act before coming too its conclusion. The Board, therefore, decided to accept the recommendations of the Committee and recommended to the Government accordingly"2. In pursuance of the recommendations of the Board, the matter has been considered in detail by the Central Government and it has been decided not to prohibit employment of contract labour in the following work/jobs in the establishment of Rashtriya Chemicals and Fertilizers Ltd., in their plants at Chembur, Mumbai and Thal District Raigad, Maharashtra for which the appropriate government, under the Contract Labour (Regulation and Abolition) Act, 1970 is the Central Government:1) Cleaning of Roads, Storm drains, Yards and Grass cutting.2) Dosing of Chemicals.3) Jobs in Canteen.4) Maintenance of Railway Track in the Plant.5) Material handling and6) Civil Engineering maintenance i.e., in the jobs of carpentry, masonry, repairs to electrical switchgear and equipment such as pumps, cutters, maintenance operators, maintenance helpers, Assistants in Civil work, operators and general workers.3. As the question of interpretation of the term "establishments" and applicability of the Act to township is pending before the Constitution Bench of the Supreme Court and their ruling is awaited, it has been decided not to prohibit the employment of contract labour in the job of Security Guards covered by the Maharashtra Private Security Guards (Regulation of Employment and Welfare) Act, 1981, deployed in the colonies, at present.4. A notification prohibiting employment of contract labour in some other jobs/works in the establishment of Rashtriya Chemicals and Fertilizers Limited, in their plants at Chembur, Mumbai Priyadarshini Complex and Thal District Raigad, Maharashtra is being issued separately in consultation with the Ministry of Law, Justice and Company Affairs (Legislative Deportment).5. The employment of contract labour in the loading and unloading jobs being done by the Hathadi Workers are being referred back to the Board for their elucidation." 10. As rightly contended by learned counsel for the appellants once the respondent No.1-Association approached the High Court on the foundation that the Contract Labour (Regulation and Abolition) Act, 1970 (in short the Act) applied, it pre supposes existence of a valid contract. What the writ petitioner (respondent No.1 herein) wanted was quashment of Notification for reconsideration. In view of what has been stated in second SAIL case (supra) the High Court has to consider whether the stand taken in the writ petition was inconsistent. In the instant case the writ petitioner itself accepted that certain issues could not be decided in the writ petition. That being so, High Court giving directions in the nature done, do not appear to be appropriate. We are of the view that the High Court ought not to have given the directions in the manner done and should have left the respondent No.1-Association to avail remedy available in the I.D. Act.11. It is open to the respondent No.1-Association, if it is so advised, to move the appropriate State Government seeking reference of the purported dispute to the Tribunal. It is for the State Government to consider whether any reference is called for. We make it clear that we have not expressed any opinion on the desirability or otherwise of making reference. | 1[ds]10. As rightly contended by learned counsel for the appellants once the respondentapproached the High Court on the foundation that the Contract Labour (Regulation and Abolition) Act, 1970 (in short the Act) applied, it pre supposes existence of a valid contract. What the writ petitioner (respondent No.1 herein) wanted was quashment of Notification for reconsideration. In view of what has been stated in second SAIL case (supra) the High Court has to consider whether the stand taken in the writ petition was inconsistent. In the instant case the writ petitioner itself accepted that certain issues could not be decided in the writ petition. That being so, High Court giving directions in the nature done, do not appear to be appropriate. We are of the view that the High Court ought not to have given the directions in the manner done and should have left the respondentto avail remedy available in the I.D. Act.11. It is open to the respondentif it is so advised, to move the appropriate State Government seeking reference of the purported dispute to the Tribunal. It is for the State Government to consider whether any reference is called for. We make it clear that we have not expressed any opinion on the desirability or otherwise of making reference. | 1 | 3,256 | 239 | ### Instruction:
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be an administrative one but the same would not be beyond the pale of judicial review. It must, therefore, apply its mind before making a reference on the basis of the materials placed before it by the workmen and/or management, as the case may be. While doing so, it may be inappropriate for the same authority on the basis of the materials that a notification under Section 10(1)(d) of the 1947 Act be issued, although it stands judicially determined that the workmen were employed by the contractor. The state exercises administrative power both in relation to abolition of contract labour in terms of section 10 of the 1970 Act as also in relation to making a reference for industrial adjudication to labour court or a Tribunal under Section 10(1)(d) of the 1947 Act. While issuing a notification under the 1970 Act, the State would have to proceed on the basis that the principal employer had appointed contractors and such appointments are valid in law, but while referring a dispute for industrial adjudication, validity of appointment of the contractor would itself be an issue as the state must prima facie satisfy itself that there exists a dispute as to whether the workmen are in fact not employed by the contractor but by the management. We are, therefore, with respect, unable to agree with the opinion of the High Court. We would, however, hasten to add that this judgment shall not come in the way of the appropriate government to apply its mind for the purpose of issuance of a notification under Section 10 of the 1970 Act." 8. The exception to the above is, when the Court finds that the appropriate government refuses to make a reference of a dispute is unjustified. In such circumstances, the court may direct the government to make a reference Sankari Cement Alai Thozhilalar Munnetra Sangam, Tamil Nadu v. Government of Tamil Nadu and Anr. (1983 (1) SCC 304 ), V. Veerarajan and Ors. v. Government of Tamil and Ors. (1987 (1) SCC 479 and TELCO Convoy Drivers Mazdoor Sangh and Anr. v. State of Bihar & Ors. (1989 (3) SCC 271 ). 9. The Circular dated 8.11.2000 of the Central Government which was the subject matter of challenge in the first matter is extracted below: "I am directed to invite your kind attention to the above cited subject and to say that the matter relating to the prohibition of employment of contract labour in the establishment of Rashtriya Chemicals and Fertilizers Ltd., in their plants at Chembur, Mumbai and Thal District Raigad, Maharashtra was discussed in the 44 Meeting of the Central Advisory Contract Labour Boardheld on 6-7th April, 2000 under the Chairmanship of Shri T.S. Shankaran. The Board made the following recommendations to the Government:"The Board observed that the Committee has examined in detail the issue with respect to the factors set out in Section 10 of the Act before coming too its conclusion. The Board, therefore, decided to accept the recommendations of the Committee and recommended to the Government accordingly"2. In pursuance of the recommendations of the Board, the matter has been considered in detail by the Central Government and it has been decided not to prohibit employment of contract labour in the following work/jobs in the establishment of Rashtriya Chemicals and Fertilizers Ltd., in their plants at Chembur, Mumbai and Thal District Raigad, Maharashtra for which the appropriate government, under the Contract Labour (Regulation and Abolition) Act, 1970 is the Central Government:1) Cleaning of Roads, Storm drains, Yards and Grass cutting.2) Dosing of Chemicals.3) Jobs in Canteen.4) Maintenance of Railway Track in the Plant.5) Material handling and6) Civil Engineering maintenance i.e., in the jobs of carpentry, masonry, repairs to electrical switchgear and equipment such as pumps, cutters, maintenance operators, maintenance helpers, Assistants in Civil work, operators and general workers.3. As the question of interpretation of the term "establishments" and applicability of the Act to township is pending before the Constitution Bench of the Supreme Court and their ruling is awaited, it has been decided not to prohibit the employment of contract labour in the job of Security Guards covered by the Maharashtra Private Security Guards (Regulation of Employment and Welfare) Act, 1981, deployed in the colonies, at present.4. A notification prohibiting employment of contract labour in some other jobs/works in the establishment of Rashtriya Chemicals and Fertilizers Limited, in their plants at Chembur, Mumbai Priyadarshini Complex and Thal District Raigad, Maharashtra is being issued separately in consultation with the Ministry of Law, Justice and Company Affairs (Legislative Deportment).5. The employment of contract labour in the loading and unloading jobs being done by the Hathadi Workers are being referred back to the Board for their elucidation." 10. As rightly contended by learned counsel for the appellants once the respondent No.1-Association approached the High Court on the foundation that the Contract Labour (Regulation and Abolition) Act, 1970 (in short the Act) applied, it pre supposes existence of a valid contract. What the writ petitioner (respondent No.1 herein) wanted was quashment of Notification for reconsideration. In view of what has been stated in second SAIL case (supra) the High Court has to consider whether the stand taken in the writ petition was inconsistent. In the instant case the writ petitioner itself accepted that certain issues could not be decided in the writ petition. That being so, High Court giving directions in the nature done, do not appear to be appropriate. We are of the view that the High Court ought not to have given the directions in the manner done and should have left the respondent No.1-Association to avail remedy available in the I.D. Act.11. It is open to the respondent No.1-Association, if it is so advised, to move the appropriate State Government seeking reference of the purported dispute to the Tribunal. It is for the State Government to consider whether any reference is called for. We make it clear that we have not expressed any opinion on the desirability or otherwise of making reference.
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10. As rightly contended by learned counsel for the appellants once the respondentapproached the High Court on the foundation that the Contract Labour (Regulation and Abolition) Act, 1970 (in short the Act) applied, it pre supposes existence of a valid contract. What the writ petitioner (respondent No.1 herein) wanted was quashment of Notification for reconsideration. In view of what has been stated in second SAIL case (supra) the High Court has to consider whether the stand taken in the writ petition was inconsistent. In the instant case the writ petitioner itself accepted that certain issues could not be decided in the writ petition. That being so, High Court giving directions in the nature done, do not appear to be appropriate. We are of the view that the High Court ought not to have given the directions in the manner done and should have left the respondentto avail remedy available in the I.D. Act.11. It is open to the respondentif it is so advised, to move the appropriate State Government seeking reference of the purported dispute to the Tribunal. It is for the State Government to consider whether any reference is called for. We make it clear that we have not expressed any opinion on the desirability or otherwise of making reference.
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Pioneer Traders And Others Vs. Chief Controller Of Imports Andexports Pondicherry | applies to these cases, even though in law it does not. 26. There is no escape from the conclusion that on the authority of this Courts decision in (1961) 1 SCR 305 the Sea Customs Act will not apply and the law formerly in force in the French Establishments, immediately before November 1, 1954 would apply, in respect of all importations into Pondicherry made on the basis of contracts concluded before November 1, 1954 . On the assumption which, as already stated, must be made in considering the preliminary objection, that the importations in these cases were made on the basis of contracts concluded before November 1, 1954 the irresistible conclusion is that the Sea Customs Act had no application to these cases. It necessarily follows that the Collector of Customs had, on the above assumption of facts, no jurisdiction to make any order in respect of these. The fact that the Collector of Customs thought, in exercising his functions as a quasi-judicial authority, that the Sea Customs Act did apply cannot possibly affect this question.30. It appears that before the Collector the petitioner did not seek to make the case which he now wants to make, viz., that the contract for supply of the goods was made in all these cases before November 1, 1954. The Collector came to the conclusion that this case, viz., that the contracts had been concluded before August 15, 1954 had not been established. It was in that view that he made the orders of confiscation with an option to pay penalty instead. It seems probable that in the appeals before the Central Board of Revenue and the revisional applications before the Government of India also the petitioners case was that the contracts had been concluded before August 15, 1954 and the case that the contracts were concluded before November 1, 1954 was not pleaded. The Member, Central Board of Revenue, in disposing of the appeals recorded his view that it was not in doubt that the goods in question were imported into Pondicherry at a time when a licence was required for their import and that the appellant did not have such a licence. In that view he affirmed the Collectors orders with a modification that the fine in lieu of confiscation be reduced. The Government of India also found no reason to interfere with the orders passed by the Central Board of Revenue. 27. These facts can however make no difference to the position in law that if in fact the importations were made on the basis of contracts concluded before November 1, 1954 the Sea Customs Act would not apply and the Collector or the Central Board of Revenue would have no jurisdiction to make any order of confiscation or penalty. Where an authority whether judicial or quasi-judicial, has in law no jurisdiction to make an order the omission by a party to raise before the authority the relevant facts for deciding that question cannot clothe it with jurisdiction.32. The substance of the matter is that the Collector assumed jurisdiction on the view that the Sea Customs Act applied to these cases : if the importations were on the basis of contracts concluded before November 1, 1954 - as we have assumed - the Sea Customs Act does not however apply to these cases. Therefore, the Collector acted without jurisdiction and the fact that the assumption of jurisdiction was based on the Collectors wrong decision, does not change that position. The writ petitions would therefore be maintainable, if the petitioner can satisfy the Court that the importations were made on the basis of contracts concluded before November 1, 1954. I would therefore reject the preliminary objection. 28. When the Universal Imports Agency case, (1961) 1 SCR 305 was decided by this Court, no objection to the maintainability of the writ petition was raised; and consequently the Court had not to consider the question whether the action taken by the Collector of Customs was with or without jurisdiction. So long as however the law as laid down by the majority judgment in that case remains good law, we must hold that the Sea Customs Act would not apply to imports in these cases also if they were made on the basis of contracts, concluded before November 1, 1954, and as explained above, that in my opinion compels the conclusion that the Collector of Customs acted without jurisdiction, if the imports were on the basis of contracts concluded before November 1, 1954. 29. It may be mentioned here in this connection that S. K. Das J. in his judgment in Ujjambais case (AIR 1962 SC 1621 ) referred to the decision of this Court in (1961) 1 SCR 305 as a case where a quasi-judicial authority has acted without jurisdiction. Kapur J. has also referred to this case and said "in any case, this is an instance of want of jurisdiction to tax transactions which the law excludes from the taxing powers of the authority levying the tax."35. Coming now to the merits of the petitions, I need only state that the materials that have been produced by the petitioner are by no means sufficient to establish the case that the contracts in these several cases were concluded before November 1, 1954. Mr. Chatterjee prayed to the Court for an opportunity to adduce further documentary evidence to convince us of the truth of the petitioners case on this point. I might perhaps have been inclined to grant this prayer. No useful purpose will however be served by my discussing that question, or the materials already on the record, as my learned brethren, having come to a conclusion that the preliminary objection should succeed, have not considered the merits of the petition. 30. The position is exactly similar in the other thirteen petitions filed by M/s. Pioneer Traders which were heard along with the petitions already discussed and my conclusion in regard to those petitions is also the same. ORDER Sinha, C.J. : 31. | 0[ds]12. It will be seen from the above summary of the views of the learned Judges who constituted the majority that, though the reasons given for coming to their conclusion were slightly different they were all agreed that where an order of assessment is made by an authority with jurisdiction under a taxing statute which is intra vires, it is not open to challenge as repugnant to Art. 19(1)(g) on the sole ground that it is based on a misconstruction of a provision of the Act or of a notification issued thereunder and the validity of such an order cannot be questioned in a petition under Art. 32 of the Constitution, though it may be open to question such an order on appeal or in revision in case the statute provides for that remedy or by a petition under Arts. 226 and 227 in appropriate cases12. It will be seen from the above summary of the views of the learned Judges who constituted the majority that, though the reasons given for coming to their conclusion were slightly different they were all agreed that where an order of assessment is made by an authority with jurisdiction under a taxing statute which is intra vires, it is not open to challenge as repugnant to Art. 19(1)(g) on the sole ground that it is based on a misconstruction of a provision of the Act or of a notification issued thereunder and the validity of such an order cannot be questioned in a petition under Art. 32 of the Constitution, though it may be open to question such an order on appeal or in revision in case the statute provides for that remedy or by a petition under Arts. 226 and 227 in appropriate casesThe majority judgment on which the petitioners rely has nowhere considered the question whether the authority in that case suffered from inherent lack of jurisdiction when it decided to confiscate the goods imported and levy penalties in the alternative. All that the learned counsel for the petitioners could draw our attention to was a sentence in the majority judgment to the following effect15. As we have just indicated, the decision of this Court in the case of Universal Imports Agency, (1961) 1 SCR 305 , was not based on the ground that appropriate authority who confiscated the goods lacked inherent jurisdiction to do so. The decision, in substance, proceeded on the ground that in exercising the said jurisdiction, the authority had misconstrued S.R.O. 3315. The question, as to whether a writ petition under Art. 32 can lie on that ground was not raised before the Court and has not been considered. Therefore, it seems to us, with respect, that the observation made by Kapur J. in the case of Ujjambai (AIR 1962 SC 1621 ) that the decision-in the case of Universal Imports Agency, (1961) 1 SCR 305 affords an instance of want of jurisdiction to tax transactions which the law excludes from taxing powers of the authority levying the tax, is not very accurate. Similarly, it may be added that the inclusion of the said decision in the list of judgments cited by Das J. which, in his opinion, illustrated categories of cases where executive authorities have acted without jurisdiction, is also not justified. Since the point about the competence of the writ petition was not raised or considered in the case of Universal Imports Agency, (1961) 1 SCR 305 , it would not be accurate or correct to hold that that decision turned on the absence of jurisdiction of the appropriate authority. It is well known that after the decision of the Court in the case of Kailash Nath v. State of U.P., AIR 1957 SC 790 , some writ petitions were entertained on the ground that the jurisdiction of the Court under Art. 32 could be invoked even if a tribunal exercising quasi-judicial authority had misconstrued the law under which it purported to act. Having regard to the decision of the Special Bench in the case Ujjambai, (AIR 1962 SC 1621 ) these precedents have now lost their validityThis in our opinion is not correct. The Sea Customs Act was applied to Pondicherry by S.R.O. 3315. This S.R.O. has six paragraphs. The first paragraph gives the name of the S.R.O. and the date from which it will come into force. The second paragraph defines what are "French Establishments" to which the S.R.O. was applicable. The third paragraph lays down that certain Acts mentioned in the Schedule which are twenty-two in number would apply to the French Establishments subject to certain conditions which are not material. Sub-paragraph (2) of para 3 applies all rules under the various enactments in the Schedule to the French Establishments. Paragraph 4 lays down how references in any enactment, notification, rule, order or regulation applied to the French Establishments have to be construed. Paragraph 5 gives power to any Court, tribunal or authority required or empowered to enforce in the French Establishments any enactment specified in the Schedule to construe the enactment with such alterations, not affecting the substance, as may be necessary or proper. Then comes para 6 which we have already set out. It will be seen therefore the S.R.O. 3315 applied the Sea Customs Act and certain other Acts to the French Establishments, including Pondicherry, and para 6 in particular is similar to a repealing and saving provision to be found in an Act which repeals and re-enacts an earlier enactment. It would therefore be not improper to read para 6, as if it was incorporated in each one of the twenty-two Acts which were extended to the French Establishments by S.R.O. 3315. The construction therefore of para 6 of the S.R.O. which must be deemed to have been inserted in each one of Acts mentioned in Schedule would be a construction of the Sea Customs Act itself. Original S. 2 in the Customs Act provided for repeal of earlier enactments and for saving (though it no longer exists in the Acts as it was repealed by the Repealing Act No. 1 of 1938). In effect, therefore, para 6 of the S.R.O. would take the place of original S. 2 of the Sea Customs Act. Therefore, an interpretation of para 6 of the S.R.O. which must be deemed to have been inserted in the Sea Customs Act in place of original S. 2 would be an interpretation of the Sea Customs Act. So the contention that Ujjambais case (AIR 1962 SC 1621 ) does not apply, for there has been no misconstruction of any of the provisions of the Sea Customs Act has no force. It may be added that it is not disputed in this case that the Collector of Customs had inherent jurisdiction to deal with this matter and the only attack on his order and on the subsequent orders passed in appeal and revision is that they misconstrue the provision of para 6 of the S.R.O19. This matter can therefore be looked at in two ways. If it is held that the petitioners rested their case on only the ground that they had placed the orders for import before August 15, 1954 and were thus entitled to the benefit of the press communique the finding of the Collector to the effect that he was not prepared to believe that case for three reasons given by him cannot be said to justify a prayer for a writ because it is a finding of fact; and a writ cannot issue even if the said finding is erroneous. If, therefore, that was all that was raised by the petitioners before the authorities concerned, and the authorities concerned have found against the petitioners on the main question of fact involved in their contentions before them, it cannot be said that the authorities were wrong in the view they took for the reasons given by them and there would therefore be no question of any interference under Art. 32. Further, if a petition under Art. 32 is not maintainable when a provision of law is misconstrued, it could be much less maintainable when there is a mistake of fact though as we have indicated already, it cannot be said in this case that the Collector was wrong in his conclusion on the facts20. The petitioners case, as put forward in this Court, is that even if firm orders were not placed before August 15, 1954, they were entitled to take advantage of the judgment of this Court in Universal Imports Agencys case - (1961) 1 SCR 305 , if they had placed orders after obtaining the patentes in September and had received authorisations and had arranged for foreign exchange to the extent necessary before November 1, 1954. If this is the case of the petitioners, now, and they want to succeed on it, it must be held that the Board by implication negatived it in appeal. This could only be done by a misconstruction of para 6 of S.R.O. 3315, for if that paragraph had been rightly construed, as held by this court in Universal Imports Agencys case, (1961) 1 SCR 305 the goods would not have been confiscated21. Therefore, the position in this. If the petitioners only raise the claim based on the press communique that they had placed firm orders before August 15, 1954, their claim has been negatived on facts and we see no reason to differ from the conclusion of the Collector on the facts. On the other hand, if the petitioners seem to have raised the case which they are now raising before us on the basis of Universal Imports Agencys case - (1961) 1 SCR 305 before the Board, the Board must be deemed to have turned down that claim and that could only be on the basis of the misconstruction of para 6 of S.R.O. 3315. The case therefore that is now put forward on behalf of the petitioners before us would be absolutely analogous to the position in Ujjambais case (AIR 1962 SC 1621 ). In that case the assessing authority acting with jurisdiction upon a misconstruction of a statute which was intra views or a notification properly issued thereunder assessed the tax and it was held that such an assessment cannot be impugned as repugnant to Art. 19(1)(f) and (g) on the sole ground that it was based on a misconstruction of a provision of the Act and the validity of such an order cannot be questioned in a petition under Art. 32. In the present case, a similar quasi-judicial authority i.e. the Board acting judicially with its jurisdiction must be deemed to have turned down by implication the contention raised on the basis of para 6 of S.R.O. 3315 by the petitioners before it and this could only be done on the misconstruction of that paragraph in view of the decision in Universal imports Agencys case, (1961) 1 SCR 305. The petitioners however cannot question the validity of those orders by petition under Art. 32 of the Constitution, for the Act under which the orders were passed read with S.R.O. 3315 is not assailed as ultra views and the only ground on which it is said that a fundamental right has been violated is that there has been by implication a misconstruction of para 6 of S.R.O. 3315 by the Board. In that view the decision in Ujjambais case, (AIR 1962 SC 1921) will apply with full force to the present petitions. | 0 | 10,931 | 2,109 | ### Instruction:
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applies to these cases, even though in law it does not. 26. There is no escape from the conclusion that on the authority of this Courts decision in (1961) 1 SCR 305 the Sea Customs Act will not apply and the law formerly in force in the French Establishments, immediately before November 1, 1954 would apply, in respect of all importations into Pondicherry made on the basis of contracts concluded before November 1, 1954 . On the assumption which, as already stated, must be made in considering the preliminary objection, that the importations in these cases were made on the basis of contracts concluded before November 1, 1954 the irresistible conclusion is that the Sea Customs Act had no application to these cases. It necessarily follows that the Collector of Customs had, on the above assumption of facts, no jurisdiction to make any order in respect of these. The fact that the Collector of Customs thought, in exercising his functions as a quasi-judicial authority, that the Sea Customs Act did apply cannot possibly affect this question.30. It appears that before the Collector the petitioner did not seek to make the case which he now wants to make, viz., that the contract for supply of the goods was made in all these cases before November 1, 1954. The Collector came to the conclusion that this case, viz., that the contracts had been concluded before August 15, 1954 had not been established. It was in that view that he made the orders of confiscation with an option to pay penalty instead. It seems probable that in the appeals before the Central Board of Revenue and the revisional applications before the Government of India also the petitioners case was that the contracts had been concluded before August 15, 1954 and the case that the contracts were concluded before November 1, 1954 was not pleaded. The Member, Central Board of Revenue, in disposing of the appeals recorded his view that it was not in doubt that the goods in question were imported into Pondicherry at a time when a licence was required for their import and that the appellant did not have such a licence. In that view he affirmed the Collectors orders with a modification that the fine in lieu of confiscation be reduced. The Government of India also found no reason to interfere with the orders passed by the Central Board of Revenue. 27. These facts can however make no difference to the position in law that if in fact the importations were made on the basis of contracts concluded before November 1, 1954 the Sea Customs Act would not apply and the Collector or the Central Board of Revenue would have no jurisdiction to make any order of confiscation or penalty. Where an authority whether judicial or quasi-judicial, has in law no jurisdiction to make an order the omission by a party to raise before the authority the relevant facts for deciding that question cannot clothe it with jurisdiction.32. The substance of the matter is that the Collector assumed jurisdiction on the view that the Sea Customs Act applied to these cases : if the importations were on the basis of contracts concluded before November 1, 1954 - as we have assumed - the Sea Customs Act does not however apply to these cases. Therefore, the Collector acted without jurisdiction and the fact that the assumption of jurisdiction was based on the Collectors wrong decision, does not change that position. The writ petitions would therefore be maintainable, if the petitioner can satisfy the Court that the importations were made on the basis of contracts concluded before November 1, 1954. I would therefore reject the preliminary objection. 28. When the Universal Imports Agency case, (1961) 1 SCR 305 was decided by this Court, no objection to the maintainability of the writ petition was raised; and consequently the Court had not to consider the question whether the action taken by the Collector of Customs was with or without jurisdiction. So long as however the law as laid down by the majority judgment in that case remains good law, we must hold that the Sea Customs Act would not apply to imports in these cases also if they were made on the basis of contracts, concluded before November 1, 1954, and as explained above, that in my opinion compels the conclusion that the Collector of Customs acted without jurisdiction, if the imports were on the basis of contracts concluded before November 1, 1954. 29. It may be mentioned here in this connection that S. K. Das J. in his judgment in Ujjambais case (AIR 1962 SC 1621 ) referred to the decision of this Court in (1961) 1 SCR 305 as a case where a quasi-judicial authority has acted without jurisdiction. Kapur J. has also referred to this case and said "in any case, this is an instance of want of jurisdiction to tax transactions which the law excludes from the taxing powers of the authority levying the tax."35. Coming now to the merits of the petitions, I need only state that the materials that have been produced by the petitioner are by no means sufficient to establish the case that the contracts in these several cases were concluded before November 1, 1954. Mr. Chatterjee prayed to the Court for an opportunity to adduce further documentary evidence to convince us of the truth of the petitioners case on this point. I might perhaps have been inclined to grant this prayer. No useful purpose will however be served by my discussing that question, or the materials already on the record, as my learned brethren, having come to a conclusion that the preliminary objection should succeed, have not considered the merits of the petition. 30. The position is exactly similar in the other thirteen petitions filed by M/s. Pioneer Traders which were heard along with the petitions already discussed and my conclusion in regard to those petitions is also the same. ORDER Sinha, C.J. : 31.
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it was incorporated in each one of the twenty-two Acts which were extended to the French Establishments by S.R.O. 3315. The construction therefore of para 6 of the S.R.O. which must be deemed to have been inserted in each one of Acts mentioned in Schedule would be a construction of the Sea Customs Act itself. Original S. 2 in the Customs Act provided for repeal of earlier enactments and for saving (though it no longer exists in the Acts as it was repealed by the Repealing Act No. 1 of 1938). In effect, therefore, para 6 of the S.R.O. would take the place of original S. 2 of the Sea Customs Act. Therefore, an interpretation of para 6 of the S.R.O. which must be deemed to have been inserted in the Sea Customs Act in place of original S. 2 would be an interpretation of the Sea Customs Act. So the contention that Ujjambais case (AIR 1962 SC 1621 ) does not apply, for there has been no misconstruction of any of the provisions of the Sea Customs Act has no force. It may be added that it is not disputed in this case that the Collector of Customs had inherent jurisdiction to deal with this matter and the only attack on his order and on the subsequent orders passed in appeal and revision is that they misconstrue the provision of para 6 of the S.R.O19. This matter can therefore be looked at in two ways. If it is held that the petitioners rested their case on only the ground that they had placed the orders for import before August 15, 1954 and were thus entitled to the benefit of the press communique the finding of the Collector to the effect that he was not prepared to believe that case for three reasons given by him cannot be said to justify a prayer for a writ because it is a finding of fact; and a writ cannot issue even if the said finding is erroneous. If, therefore, that was all that was raised by the petitioners before the authorities concerned, and the authorities concerned have found against the petitioners on the main question of fact involved in their contentions before them, it cannot be said that the authorities were wrong in the view they took for the reasons given by them and there would therefore be no question of any interference under Art. 32. Further, if a petition under Art. 32 is not maintainable when a provision of law is misconstrued, it could be much less maintainable when there is a mistake of fact though as we have indicated already, it cannot be said in this case that the Collector was wrong in his conclusion on the facts20. The petitioners case, as put forward in this Court, is that even if firm orders were not placed before August 15, 1954, they were entitled to take advantage of the judgment of this Court in Universal Imports Agencys case - (1961) 1 SCR 305 , if they had placed orders after obtaining the patentes in September and had received authorisations and had arranged for foreign exchange to the extent necessary before November 1, 1954. If this is the case of the petitioners, now, and they want to succeed on it, it must be held that the Board by implication negatived it in appeal. This could only be done by a misconstruction of para 6 of S.R.O. 3315, for if that paragraph had been rightly construed, as held by this court in Universal Imports Agencys case, (1961) 1 SCR 305 the goods would not have been confiscated21. Therefore, the position in this. If the petitioners only raise the claim based on the press communique that they had placed firm orders before August 15, 1954, their claim has been negatived on facts and we see no reason to differ from the conclusion of the Collector on the facts. On the other hand, if the petitioners seem to have raised the case which they are now raising before us on the basis of Universal Imports Agencys case - (1961) 1 SCR 305 before the Board, the Board must be deemed to have turned down that claim and that could only be on the basis of the misconstruction of para 6 of S.R.O. 3315. The case therefore that is now put forward on behalf of the petitioners before us would be absolutely analogous to the position in Ujjambais case (AIR 1962 SC 1621 ). In that case the assessing authority acting with jurisdiction upon a misconstruction of a statute which was intra views or a notification properly issued thereunder assessed the tax and it was held that such an assessment cannot be impugned as repugnant to Art. 19(1)(f) and (g) on the sole ground that it was based on a misconstruction of a provision of the Act and the validity of such an order cannot be questioned in a petition under Art. 32. In the present case, a similar quasi-judicial authority i.e. the Board acting judicially with its jurisdiction must be deemed to have turned down by implication the contention raised on the basis of para 6 of S.R.O. 3315 by the petitioners before it and this could only be done on the misconstruction of that paragraph in view of the decision in Universal imports Agencys case, (1961) 1 SCR 305. The petitioners however cannot question the validity of those orders by petition under Art. 32 of the Constitution, for the Act under which the orders were passed read with S.R.O. 3315 is not assailed as ultra views and the only ground on which it is said that a fundamental right has been violated is that there has been by implication a misconstruction of para 6 of S.R.O. 3315 by the Board. In that view the decision in Ujjambais case, (AIR 1962 SC 1921) will apply with full force to the present petitions.
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Ksb Ali Vs. State Of A.P. | by the impugned memo dated 21-05-2005. Neither the 170 petitioners (whose W.P.No.20298 of 1993 was referred to in the letter dated 15-04-2002) or Moizuddin Mahamood whose representation dated 04-08-2001 was also referred to in this letter (rejecting K.S.B.Alis representation for implementation of the Muntakhab and restoration of possession of the schedule property), have ever challenged the decision dated 15-04-2002. Neither did Sri K.S.B. Ali.Since neither the memos dated 06-05-2004 and 31-07-2004 nor the re-calling of the orders in these memos by the impugned memo dated 21-05-2005 is at the instance of any other person except K.S.B. Ali, none of the other petitioners could legitimately assert a grievance that the impugned memo was issued without notice or opportunity to them and on the ground that any rights accrued to them under the memos dated 06-05-2004 and 31-07-2004 were extinguished by the impugned memo.In the chaotic and incoherent state of facts adverted to above and absent any clarity as to whether K.S.B.Ali and/or the writ petitioners are the legal heirs of Nusrat Jung - I or lawfully authorized to represent any legal heirs; and since the writ petitions are founded on the assertion that the reliefs claimed are on the basis that the several petitioners (being successors-in-interest of Nusrat Jung - I) are entitled to restoration of possession of the schedule property; we do not consider it prudent or pragmatic that reliefs should have been granted to petitioners who have failed to plead and establish any litigative interest in the subject matter of the writ petitions; and therefore to a locus to litigate."23. Fifthly, as pointed out above, the judgment of the learned Single Judge insofar as it was against the appellants, was never challenged by them by filing any writ appeal(s). It would be pertinent to reproduce hereunder the conclusions of the learned Single Judge in its judgment dated 2nd June, 2009."The writ petitions were allowed with the following directions:(a)the impugned memo dated 21-05-2005, is set aside, as violative of principles of natural justice;(b)the Government, in its Revenue Department, shall pass fresh orders, after issuing notice to the petitioners. It shall be open to the petitioners to urge all the grounds before the Government.(c)G.O.Ms.No. 1084, dated 06-06-2005, is upheld, however, with a rider that as and when the rights of the petitioners vis--vis the lands are determined in their favour, it shall be open to them, to pursue their remedies, in this regard;(d)This judgment shall not be treated as a pronouncement or adjudication of any dispute, or question, involved in the matter; and(e)It shall be open to the legal representatives of late Nawab Nursat Jung Bahadur-1, or their authorized agent, to pursue the proceedings before the Government, and the dispute, if any, among them, may be agitated before a competent forum.As is clear from the observations set out in direction (d) above, there was no adjudication or determination of any of the substantive disputes between the parties, particularly with regard to the vitality of the Muntakhab. These disputes are relegated for de novo consideration by the Government, and after notice to the petitioners."The learned Single Judge had specifically clarified that his judgment was not to be treated as a pronouncement for adjudication of any dispute or questions involved in the matter and disputes, if any, among them could be adjudicated before a competent forum. In view of the above, in the appeals filed by the State against the judgment of the Single Judge, the Division Bench was only called upon to decided as to whether the direction to relegate the matter to the State Government was proper or not. The High Court has decided that aspect in the impugned judgment. It is obvious that the appellants cannot rake up those issues in these appeals which are not decided either by the learned Single Judge or the Division Bench.24. Sixthly, Insofar as the decision of the Division Bench on the issue raised before it is concerned, no arguments were even advanced by the appellants questioning the validity thereof. Even otherwise, having gone through the said judgment minutely, we are in complete agreement with the impugned judgement on those aspects, decided by the High Court. To recapitulate in brief it is stated that even the writ petition filed by the petitioners herein (writ petition no. 3421 of 2008) which inter alia sought to challenge memo dated 21st May, 2005 issued by the Revenue Department as illegal and also sought to implement Muntakhab No. 55 of 1955 dated 7th May, 1955, by mutating the names of the petitioners in the Revenue Records and return the custody of the property was clearly not maintainable for two reasons. Insofar the memo dated 21st May, 2005, was concerned, the main grievance of the writ petitioners appears to be that the same had been passed without giving any notice to the writ petitioner and that the same could not have reviewed/rescinded the memos dated 6th May, 2004. The said arguments are not tenable on account of the fact that the impugned memo dated 21st May, 2005, only sought to reinforce the memo dated 15th April, 2002, issued by the Government in response to the representation made by Mr. Ali. Therefore, when the impugned memo dated 21st May, 2005 was admittedly not issued at the instance of the writ petitioners there could not have been any question of hearing them prior to the same. Further, neither the impugned memo nor the memo dated 6th May, 2004 (purporting to create rights in favour of the legal heirs of Nawab Nusrat Jung-I) was communicated to the writ petitioners. Hence, insofar as the memo dated 21st May, 2004 is concerned, no cause of action accrued in favour of the writ petitioners to have approached the High Court and, therefore, the only person, if any, who could have challenged the same was Mr. Ali. As far as Mr. Ali, is concerned, as already pointed above, he could not maintain the writ petition as it was not `appropriate remedy as granted by this Court. | 0[ds]19. After considering the respective submissions, we find ourselves in agreement with the contentions advanced by the learned counsel for respondent. There are various reasons to dismiss these appeals, which are discussed herein below:20. In the first place, it is to be noticed that as far as Mr. Ali is concerned, his writ petition no. 10084 of 2006 which was filed in the High Court after passing of the order dated 31st July, 2007 in SLP(C) No. 23392 of 2007 by this Court, was not maintainable. This Court, by the said order, had permitted him to withdraw his writ petition no. 14434 of 2006 and `to take appropriate remedy. Obviously, the remedy could not be in the form of another writ petition on the same facts and grounds which were pleaded earlier. The High Court has rightly held that having given up his pursuit of public law remedy in earlier abandoned proceedings, filing of the fresh writ petition or pursue pending writ petition no. 10084 of 2006 would constitute an abuse of the process of the Court.21. Secondly, the High Court is also right in holding that neither Mr. Ali had established by specific pleadings nor by due authorisation on record that he was authorised to represent the case of 203legal heirs of NusratIt is clear from the above that insofar as Mr. Ali is concerned, his appeals are not even maintainable.22. Thirdly, the High Court has specifically remarked, and rightly so, that even the other appellants did not plead or establish the basis of their claims that they are the heirs of Nusratpointed out above, the High Court has discussed the locus of these appellants (writ petitioners in the High Court) under the caption `who are the writ petitioners? At this juncture, it would be apt to reproduce the entire discussion in this behalf which compelled the High Court to observe that entirely chaotic and incoherent state of facts were pleaded by all these writ petitioners in their writ petition since we are in agreement with the High Courts analysis.Fifthly, as pointed out above, the judgment of the learned Single Judge insofar as it was against the appellants, was never challenged by them by filing any writlearned Single Judge had specifically clarified that his judgment was not to be treated as a pronouncement for adjudication of any dispute or questions involved in the matter and disputes, if any, among them could be adjudicated before a competent forum. In view of the above, in the appeals filed by the State against the judgment of the Single Judge, the Division Bench was only called upon to decided as to whether the direction to relegate the matter to the State Government was proper or not. The High Court has decided that aspect in the impugned judgment. It is obvious that the appellants cannot rake up those issues in these appeals which are not decided either by the learned Single Judge or the Division Bench.24. Sixthly, Insofar as the decision of the Division Bench on the issue raised before it is concerned, no arguments were even advanced by the appellants questioning the validity thereof. Even otherwise, having gone through the said judgment minutely, we are in complete agreement with the impugned judgement on those aspects, decided by the High Court. To recapitulate in brief it is stated that even the writ petition filed by the petitioners herein (writ petition no. 3421 of 2008) which inter alia sought to challenge memo dated 21st May, 2005 issued by the Revenue Department as illegal and also sought to implement Muntakhab No. 55 of 1955 dated 7th May, 1955, by mutating the names of the petitioners in the Revenue Records and return the custody of the property was clearly not maintainable for two reasons. Insofar the memo dated 21st May, 2005, was concerned, the main grievance of the writ petitioners appears to be that the same had been passed without giving any notice to the writ petitioner and that the same could not have reviewed/rescinded the memos dated 6th May, 2004. The said arguments are not tenable on account of the fact that the impugned memo dated 21st May, 2005, only sought to reinforce the memo dated 15th April, 2002, issued by the Government in response to the representation made by Mr. Ali. Therefore, when the impugned memo dated 21st May, 2005 was admittedly not issued at the instance of the writ petitioners there could not have been any question of hearing them prior to the same. Further, neither the impugned memo nor the memo dated 6th May, 2004 (purporting to create rights in favour of the legal heirs of Nawab Nusratwas communicated to the writ petitioners. Hence, insofar as the memo dated 21st May, 2004 is concerned, no cause of action accrued in favour of the writ petitioners to have approached the High Court and, therefore, the only person, if any, who could have challenged the same was Mr. Ali. As far as Mr. Ali, is concerned, as already pointed above, he could not maintain the writ petition as it was not `appropriate remedy as granted by this Court. | 0 | 9,143 | 951 | ### Instruction:
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by the impugned memo dated 21-05-2005. Neither the 170 petitioners (whose W.P.No.20298 of 1993 was referred to in the letter dated 15-04-2002) or Moizuddin Mahamood whose representation dated 04-08-2001 was also referred to in this letter (rejecting K.S.B.Alis representation for implementation of the Muntakhab and restoration of possession of the schedule property), have ever challenged the decision dated 15-04-2002. Neither did Sri K.S.B. Ali.Since neither the memos dated 06-05-2004 and 31-07-2004 nor the re-calling of the orders in these memos by the impugned memo dated 21-05-2005 is at the instance of any other person except K.S.B. Ali, none of the other petitioners could legitimately assert a grievance that the impugned memo was issued without notice or opportunity to them and on the ground that any rights accrued to them under the memos dated 06-05-2004 and 31-07-2004 were extinguished by the impugned memo.In the chaotic and incoherent state of facts adverted to above and absent any clarity as to whether K.S.B.Ali and/or the writ petitioners are the legal heirs of Nusrat Jung - I or lawfully authorized to represent any legal heirs; and since the writ petitions are founded on the assertion that the reliefs claimed are on the basis that the several petitioners (being successors-in-interest of Nusrat Jung - I) are entitled to restoration of possession of the schedule property; we do not consider it prudent or pragmatic that reliefs should have been granted to petitioners who have failed to plead and establish any litigative interest in the subject matter of the writ petitions; and therefore to a locus to litigate."23. Fifthly, as pointed out above, the judgment of the learned Single Judge insofar as it was against the appellants, was never challenged by them by filing any writ appeal(s). It would be pertinent to reproduce hereunder the conclusions of the learned Single Judge in its judgment dated 2nd June, 2009."The writ petitions were allowed with the following directions:(a)the impugned memo dated 21-05-2005, is set aside, as violative of principles of natural justice;(b)the Government, in its Revenue Department, shall pass fresh orders, after issuing notice to the petitioners. It shall be open to the petitioners to urge all the grounds before the Government.(c)G.O.Ms.No. 1084, dated 06-06-2005, is upheld, however, with a rider that as and when the rights of the petitioners vis--vis the lands are determined in their favour, it shall be open to them, to pursue their remedies, in this regard;(d)This judgment shall not be treated as a pronouncement or adjudication of any dispute, or question, involved in the matter; and(e)It shall be open to the legal representatives of late Nawab Nursat Jung Bahadur-1, or their authorized agent, to pursue the proceedings before the Government, and the dispute, if any, among them, may be agitated before a competent forum.As is clear from the observations set out in direction (d) above, there was no adjudication or determination of any of the substantive disputes between the parties, particularly with regard to the vitality of the Muntakhab. These disputes are relegated for de novo consideration by the Government, and after notice to the petitioners."The learned Single Judge had specifically clarified that his judgment was not to be treated as a pronouncement for adjudication of any dispute or questions involved in the matter and disputes, if any, among them could be adjudicated before a competent forum. In view of the above, in the appeals filed by the State against the judgment of the Single Judge, the Division Bench was only called upon to decided as to whether the direction to relegate the matter to the State Government was proper or not. The High Court has decided that aspect in the impugned judgment. It is obvious that the appellants cannot rake up those issues in these appeals which are not decided either by the learned Single Judge or the Division Bench.24. Sixthly, Insofar as the decision of the Division Bench on the issue raised before it is concerned, no arguments were even advanced by the appellants questioning the validity thereof. Even otherwise, having gone through the said judgment minutely, we are in complete agreement with the impugned judgement on those aspects, decided by the High Court. To recapitulate in brief it is stated that even the writ petition filed by the petitioners herein (writ petition no. 3421 of 2008) which inter alia sought to challenge memo dated 21st May, 2005 issued by the Revenue Department as illegal and also sought to implement Muntakhab No. 55 of 1955 dated 7th May, 1955, by mutating the names of the petitioners in the Revenue Records and return the custody of the property was clearly not maintainable for two reasons. Insofar the memo dated 21st May, 2005, was concerned, the main grievance of the writ petitioners appears to be that the same had been passed without giving any notice to the writ petitioner and that the same could not have reviewed/rescinded the memos dated 6th May, 2004. The said arguments are not tenable on account of the fact that the impugned memo dated 21st May, 2005, only sought to reinforce the memo dated 15th April, 2002, issued by the Government in response to the representation made by Mr. Ali. Therefore, when the impugned memo dated 21st May, 2005 was admittedly not issued at the instance of the writ petitioners there could not have been any question of hearing them prior to the same. Further, neither the impugned memo nor the memo dated 6th May, 2004 (purporting to create rights in favour of the legal heirs of Nawab Nusrat Jung-I) was communicated to the writ petitioners. Hence, insofar as the memo dated 21st May, 2004 is concerned, no cause of action accrued in favour of the writ petitioners to have approached the High Court and, therefore, the only person, if any, who could have challenged the same was Mr. Ali. As far as Mr. Ali, is concerned, as already pointed above, he could not maintain the writ petition as it was not `appropriate remedy as granted by this Court.
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19. After considering the respective submissions, we find ourselves in agreement with the contentions advanced by the learned counsel for respondent. There are various reasons to dismiss these appeals, which are discussed herein below:20. In the first place, it is to be noticed that as far as Mr. Ali is concerned, his writ petition no. 10084 of 2006 which was filed in the High Court after passing of the order dated 31st July, 2007 in SLP(C) No. 23392 of 2007 by this Court, was not maintainable. This Court, by the said order, had permitted him to withdraw his writ petition no. 14434 of 2006 and `to take appropriate remedy. Obviously, the remedy could not be in the form of another writ petition on the same facts and grounds which were pleaded earlier. The High Court has rightly held that having given up his pursuit of public law remedy in earlier abandoned proceedings, filing of the fresh writ petition or pursue pending writ petition no. 10084 of 2006 would constitute an abuse of the process of the Court.21. Secondly, the High Court is also right in holding that neither Mr. Ali had established by specific pleadings nor by due authorisation on record that he was authorised to represent the case of 203legal heirs of NusratIt is clear from the above that insofar as Mr. Ali is concerned, his appeals are not even maintainable.22. Thirdly, the High Court has specifically remarked, and rightly so, that even the other appellants did not plead or establish the basis of their claims that they are the heirs of Nusratpointed out above, the High Court has discussed the locus of these appellants (writ petitioners in the High Court) under the caption `who are the writ petitioners? At this juncture, it would be apt to reproduce the entire discussion in this behalf which compelled the High Court to observe that entirely chaotic and incoherent state of facts were pleaded by all these writ petitioners in their writ petition since we are in agreement with the High Courts analysis.Fifthly, as pointed out above, the judgment of the learned Single Judge insofar as it was against the appellants, was never challenged by them by filing any writlearned Single Judge had specifically clarified that his judgment was not to be treated as a pronouncement for adjudication of any dispute or questions involved in the matter and disputes, if any, among them could be adjudicated before a competent forum. In view of the above, in the appeals filed by the State against the judgment of the Single Judge, the Division Bench was only called upon to decided as to whether the direction to relegate the matter to the State Government was proper or not. The High Court has decided that aspect in the impugned judgment. It is obvious that the appellants cannot rake up those issues in these appeals which are not decided either by the learned Single Judge or the Division Bench.24. Sixthly, Insofar as the decision of the Division Bench on the issue raised before it is concerned, no arguments were even advanced by the appellants questioning the validity thereof. Even otherwise, having gone through the said judgment minutely, we are in complete agreement with the impugned judgement on those aspects, decided by the High Court. To recapitulate in brief it is stated that even the writ petition filed by the petitioners herein (writ petition no. 3421 of 2008) which inter alia sought to challenge memo dated 21st May, 2005 issued by the Revenue Department as illegal and also sought to implement Muntakhab No. 55 of 1955 dated 7th May, 1955, by mutating the names of the petitioners in the Revenue Records and return the custody of the property was clearly not maintainable for two reasons. Insofar the memo dated 21st May, 2005, was concerned, the main grievance of the writ petitioners appears to be that the same had been passed without giving any notice to the writ petitioner and that the same could not have reviewed/rescinded the memos dated 6th May, 2004. The said arguments are not tenable on account of the fact that the impugned memo dated 21st May, 2005, only sought to reinforce the memo dated 15th April, 2002, issued by the Government in response to the representation made by Mr. Ali. Therefore, when the impugned memo dated 21st May, 2005 was admittedly not issued at the instance of the writ petitioners there could not have been any question of hearing them prior to the same. Further, neither the impugned memo nor the memo dated 6th May, 2004 (purporting to create rights in favour of the legal heirs of Nawab Nusratwas communicated to the writ petitioners. Hence, insofar as the memo dated 21st May, 2004 is concerned, no cause of action accrued in favour of the writ petitioners to have approached the High Court and, therefore, the only person, if any, who could have challenged the same was Mr. Ali. As far as Mr. Ali, is concerned, as already pointed above, he could not maintain the writ petition as it was not `appropriate remedy as granted by this Court.
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Commissioner Of Income-Tax, Kerala Vs. K. B. Kalikutty And Anr | to the High Court it came finally in appeal to this Court. It was held that the intention of the company was to discontinue its business and the sale of the machinery and plant was a step in the process of the winding up of the business culminating in the voluntary liquidation of the company and even if the sale of the stock of sugar be regarded as carrying on of business of the company and not a realisation of its assets with a view to winding up, the machinery or plant not having been used at all, Section 10 (2) (vii) would have no application to the sale of any such machinery or plant. The controversy in (1962) 46 ITR 135 (SC) arose out of the assessment of the company for the accounting year ending April 30, 1944. The assessee company had entered into an agreement in 1943 for the sale of the lands, buildings, plant and machinery of a match factory with a view to close down the business. The purchaser made default in payment and a few months later a fresh agreement was entered into between the parties for the sale of the property mentioned in the first agreement and also chemicals and paper used for manufacture which had not been included in the first agreement. The Department sought to assess the profits derived from the sale of the chemicals and paper as profits from the business. The assessee contended that it was realisation sale and this amount was not liable to tax. It was held that on the facts of that sale the sale of chemicals and material used in the manufacture of matches was only a winding up sale to close down the business and to realise all the assets. Therefore the tax liability was not attracted. In (1964) 8 SCR 189 = (AIR 1965 SC 33 ) a decision on which the High Court relied a great deal in the present case the question again arose out of the assessment made before the amendment made in 1949, the accounting year being 1946-47. Reference was made by Subba Rao, J., (as he then was) delivering the judgment of this Court to the decision in the case of Liquidators of Pursa Ltd., 1954 SCR 767 =(AlR 1954 SC 253) as also to other decisions and after an examination of the relevant provision the following three conditions were laid down for bringing the sale proceeds to charge under the second proviso to Section 10 (2) (vii) :"(1) During the entire previous year or a part of it the business shall have been carried on by the assessee;(2) the machinery shall have been used in the business; and(3) the machinery shall have been sold when the business was being carried on and not for the purpose of closing it down or winding it up."6. There can be no doubt that according to the law laid down by this Court the view of the High Court would have been sustainable if the sale in the present case had been affected during the assessment year prior to the amendment of the proviso by Act 67 of 1949. The critical words which were inserted by that proviso namely, "whether during the continuance of the business or after the cessation thereof", must be given their proper meaning. It is quite plain that if the building, machinery or plant is sold during the continuance of the business or after the business ceases the sale proceeds would be liable to tax in accordance with that proviso. The only question therefore is whether when a sale is made for the purpose of closing down the business or effecting its cessation the proviso would be inapplicable. When the legislature dearly provided that the proviso would apply even if the sale was made after the cessation of the business it is difficult to conceive that it was intended to exclude from the ambit of the proviso realisation sales of the nature contemplated in the previous decisions of this Court. Such a result would be illogical. Even if logic is not necessarily to govern the interpretation of a taxing provision, the rule of reasonable interpretation cannot be ignored. Indeed this Court in a recent judgment Commr. of Income-tax v. Ajax Products Ltd., (1965) 1 SCR 700 = (AIR 1965 SC 1358 ) clarified the position about the effect of the amendment made in 1949 in the proviso and reference was made to the three conditions for the applicability of the second proviso before the amendment which were laid down in the previous decision of this Court. It was then observed :the words whether during the continuance of the business or after the cessation thereof were not present in the unamended proviso. In the two decisions cited earlier, in the absence of such word, this Court held that to attract the said proviso the machinery shall have been sold before the business was closed down. This clause omit that condition for the exigibility of the tax."The above observations clearly show that the amending words in the proviso eliminated the third condition which had been laid down for its applicability in the previous decision namely, that the machinery shall have been sold when the business was being carried on and not for the purpose of closing it down or winding it up. Once that condition disappears as a result of the amendment only the first two conditions remain and all that has to be seen is whether during the entire previous year or a part of it the business has been carried on by the assessee and that the machinery has been used in the business. Both these conditions, according to the findings given by the tribunal, exist in the present case. The result would be that the profits arising out of the sale of buses in question as determined by the Income-tax Officer would be chargeable to tax in accordance with the second proviso to Section 10 (2) (vii). | 1[ds]5. The words within brackets did not exist before the amendment made by Act 67 of 1949 and were inserted by that Act. In Liquidators of Pursa v. Commr. of Income-tax, Bihar, 1954 SCR 767 =(AIR 1954 SC 253 ) the controversy arose out of the proceedings relating to the assessment of Pursa Limited for the assessment year 1945-46. Attempts had been made from 1942 onwards to sell the entire business of the company but without success. In December 1943 an agreement was executed whereby the assessee agreed to sell all the lands, buildings, machinery, plant etc., used in connection with the sugar factory which was being run by the company. On the date of the sale the company possessed sugar stocks valued at Rs. 6 lakhs which the company continued to sell up to June 1944. The company went into voluntary liquidation on June 20, 1945. The Income-tax Officer held that the profits of the sale of machinery and plant were liable to assessment under Section 10 (2) (vii). The Appellate Assistant Commissioner and the Income-tax Appellate Tribunal affirmed that order. After the matter had been taken to the High Court it came finally in appeal to this Court. It was held that the intention of the company was to discontinue its business and the sale of the machinery and plant was a step in the process of the winding up of the business culminating in the voluntary liquidation of the company and even if the sale of the stock of sugar be regarded as carrying on of business of the company and not a realisation of its assets with a view to winding up, the machinery or plant not having been used at all, Section 10 (2) (vii) would have no application to the sale of any such machinery or plant. The controversy in (1962) 46 ITR 135 (SC) arose out of the assessment of the company for the accounting year ending April 30, 1944. The assessee company had entered into an agreement in 1943 for the sale of the lands, buildings, plant and machinery of a match factory with a view to close down the business. The purchaser made default in payment and a few months later a fresh agreement was entered into between the parties for the sale of the property mentioned in the first agreement and also chemicals and paper used for manufacture which had not been included in the first agreement. The Department sought to assess the profits derived from the sale of the chemicals and paper as profits from the business. The assessee contended that it was realisation sale and this amount was not liable to tax. It was held that on the facts of that sale the sale of chemicals and material used in the manufacture of matches was only a winding up sale to close down the business and to realise all the assets. Therefore the tax liability was not attracted. In (1964) 8 SCR 189 = (AIR 1965 SC 33 ) a decision on which the High Court relied a great deal in the present case the question again arose out of the assessment made before the amendment made in 1949, the accounting year being 1946-47. Reference was made by Subba Rao, J., (as he then was) delivering the judgment of this Court to the decision in the case of Liquidators of Pursa Ltd., 1954 SCR 767 =(AlR 1954 SC 253) as also to other decisions and after an examination of the relevant provision the following three conditions were laid down for bringing the sale proceeds to charge under the second proviso to Section 10 (2) (vii)During the entire previous year or a part of it the business shall have been carried on by the assessee;(2) the machinery shall have been used in the business; and(3) the machinery shall have been sold when the business was being carried on and not for the purpose of closing it down or winding it up.There can be no doubt that according to the law laid down by this Court the view of the High Court would have been sustainable if the sale in the present case had been affected during the assessment year prior to the amendment of the proviso by Act 67 of 1949. The critical words which were inserted by that proviso namely, "whether during the continuance of the business or after the cessation thereof", must be given their proper meaning. It is quite plain that if the building, machinery or plant is sold during the continuance of the business or after the business ceases the sale proceeds would be liable to tax in accordance with that proviso. The only question therefore is whether when a sale is made for the purpose of closing down the business or effecting its cessation the proviso would be inapplicable. When the legislature dearly provided that the proviso would apply even if the sale was made after the cessation of the business it is difficult to conceive that it was intended to exclude from the ambit of the proviso realisation sales of the nature contemplated in the previous decisions of this Court. Such a result would be illogical. Even if logic is not necessarily to govern the interpretation of a taxing provision, the rule of reasonable interpretation cannot beabove observations clearly show that the amending words in the proviso eliminated the third condition which had been laid down for its applicability in the previous decision namely, that the machinery shall have been sold when the business was being carried on and not for the purpose of closing it down or winding it up. Once that condition disappears as a result of the amendment only the first two conditions remain and all that has to be seen is whether during the entire previous year or a part of it the business has been carried on by the assessee and that the machinery has been used in the business. Both these conditions, according to the findings given by the tribunal, exist in the present case. The result would be that the profits arising out of the sale of buses in question as determined by the Income-tax Officer would be chargeable to tax in accordance with the second proviso to Section 10 (2) (vii). | 1 | 2,310 | 1,146 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
### Input:
to the High Court it came finally in appeal to this Court. It was held that the intention of the company was to discontinue its business and the sale of the machinery and plant was a step in the process of the winding up of the business culminating in the voluntary liquidation of the company and even if the sale of the stock of sugar be regarded as carrying on of business of the company and not a realisation of its assets with a view to winding up, the machinery or plant not having been used at all, Section 10 (2) (vii) would have no application to the sale of any such machinery or plant. The controversy in (1962) 46 ITR 135 (SC) arose out of the assessment of the company for the accounting year ending April 30, 1944. The assessee company had entered into an agreement in 1943 for the sale of the lands, buildings, plant and machinery of a match factory with a view to close down the business. The purchaser made default in payment and a few months later a fresh agreement was entered into between the parties for the sale of the property mentioned in the first agreement and also chemicals and paper used for manufacture which had not been included in the first agreement. The Department sought to assess the profits derived from the sale of the chemicals and paper as profits from the business. The assessee contended that it was realisation sale and this amount was not liable to tax. It was held that on the facts of that sale the sale of chemicals and material used in the manufacture of matches was only a winding up sale to close down the business and to realise all the assets. Therefore the tax liability was not attracted. In (1964) 8 SCR 189 = (AIR 1965 SC 33 ) a decision on which the High Court relied a great deal in the present case the question again arose out of the assessment made before the amendment made in 1949, the accounting year being 1946-47. Reference was made by Subba Rao, J., (as he then was) delivering the judgment of this Court to the decision in the case of Liquidators of Pursa Ltd., 1954 SCR 767 =(AlR 1954 SC 253) as also to other decisions and after an examination of the relevant provision the following three conditions were laid down for bringing the sale proceeds to charge under the second proviso to Section 10 (2) (vii) :"(1) During the entire previous year or a part of it the business shall have been carried on by the assessee;(2) the machinery shall have been used in the business; and(3) the machinery shall have been sold when the business was being carried on and not for the purpose of closing it down or winding it up."6. There can be no doubt that according to the law laid down by this Court the view of the High Court would have been sustainable if the sale in the present case had been affected during the assessment year prior to the amendment of the proviso by Act 67 of 1949. The critical words which were inserted by that proviso namely, "whether during the continuance of the business or after the cessation thereof", must be given their proper meaning. It is quite plain that if the building, machinery or plant is sold during the continuance of the business or after the business ceases the sale proceeds would be liable to tax in accordance with that proviso. The only question therefore is whether when a sale is made for the purpose of closing down the business or effecting its cessation the proviso would be inapplicable. When the legislature dearly provided that the proviso would apply even if the sale was made after the cessation of the business it is difficult to conceive that it was intended to exclude from the ambit of the proviso realisation sales of the nature contemplated in the previous decisions of this Court. Such a result would be illogical. Even if logic is not necessarily to govern the interpretation of a taxing provision, the rule of reasonable interpretation cannot be ignored. Indeed this Court in a recent judgment Commr. of Income-tax v. Ajax Products Ltd., (1965) 1 SCR 700 = (AIR 1965 SC 1358 ) clarified the position about the effect of the amendment made in 1949 in the proviso and reference was made to the three conditions for the applicability of the second proviso before the amendment which were laid down in the previous decision of this Court. It was then observed :the words whether during the continuance of the business or after the cessation thereof were not present in the unamended proviso. In the two decisions cited earlier, in the absence of such word, this Court held that to attract the said proviso the machinery shall have been sold before the business was closed down. This clause omit that condition for the exigibility of the tax."The above observations clearly show that the amending words in the proviso eliminated the third condition which had been laid down for its applicability in the previous decision namely, that the machinery shall have been sold when the business was being carried on and not for the purpose of closing it down or winding it up. Once that condition disappears as a result of the amendment only the first two conditions remain and all that has to be seen is whether during the entire previous year or a part of it the business has been carried on by the assessee and that the machinery has been used in the business. Both these conditions, according to the findings given by the tribunal, exist in the present case. The result would be that the profits arising out of the sale of buses in question as determined by the Income-tax Officer would be chargeable to tax in accordance with the second proviso to Section 10 (2) (vii).
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### Explanation:
Pursa Limited for the assessment year 1945-46. Attempts had been made from 1942 onwards to sell the entire business of the company but without success. In December 1943 an agreement was executed whereby the assessee agreed to sell all the lands, buildings, machinery, plant etc., used in connection with the sugar factory which was being run by the company. On the date of the sale the company possessed sugar stocks valued at Rs. 6 lakhs which the company continued to sell up to June 1944. The company went into voluntary liquidation on June 20, 1945. The Income-tax Officer held that the profits of the sale of machinery and plant were liable to assessment under Section 10 (2) (vii). The Appellate Assistant Commissioner and the Income-tax Appellate Tribunal affirmed that order. After the matter had been taken to the High Court it came finally in appeal to this Court. It was held that the intention of the company was to discontinue its business and the sale of the machinery and plant was a step in the process of the winding up of the business culminating in the voluntary liquidation of the company and even if the sale of the stock of sugar be regarded as carrying on of business of the company and not a realisation of its assets with a view to winding up, the machinery or plant not having been used at all, Section 10 (2) (vii) would have no application to the sale of any such machinery or plant. The controversy in (1962) 46 ITR 135 (SC) arose out of the assessment of the company for the accounting year ending April 30, 1944. The assessee company had entered into an agreement in 1943 for the sale of the lands, buildings, plant and machinery of a match factory with a view to close down the business. The purchaser made default in payment and a few months later a fresh agreement was entered into between the parties for the sale of the property mentioned in the first agreement and also chemicals and paper used for manufacture which had not been included in the first agreement. The Department sought to assess the profits derived from the sale of the chemicals and paper as profits from the business. The assessee contended that it was realisation sale and this amount was not liable to tax. It was held that on the facts of that sale the sale of chemicals and material used in the manufacture of matches was only a winding up sale to close down the business and to realise all the assets. Therefore the tax liability was not attracted. In (1964) 8 SCR 189 = (AIR 1965 SC 33 ) a decision on which the High Court relied a great deal in the present case the question again arose out of the assessment made before the amendment made in 1949, the accounting year being 1946-47. Reference was made by Subba Rao, J., (as he then was) delivering the judgment of this Court to the decision in the case of Liquidators of Pursa Ltd., 1954 SCR 767 =(AlR 1954 SC 253) as also to other decisions and after an examination of the relevant provision the following three conditions were laid down for bringing the sale proceeds to charge under the second proviso to Section 10 (2) (vii)During the entire previous year or a part of it the business shall have been carried on by the assessee;(2) the machinery shall have been used in the business; and(3) the machinery shall have been sold when the business was being carried on and not for the purpose of closing it down or winding it up.There can be no doubt that according to the law laid down by this Court the view of the High Court would have been sustainable if the sale in the present case had been affected during the assessment year prior to the amendment of the proviso by Act 67 of 1949. The critical words which were inserted by that proviso namely, "whether during the continuance of the business or after the cessation thereof", must be given their proper meaning. It is quite plain that if the building, machinery or plant is sold during the continuance of the business or after the business ceases the sale proceeds would be liable to tax in accordance with that proviso. The only question therefore is whether when a sale is made for the purpose of closing down the business or effecting its cessation the proviso would be inapplicable. When the legislature dearly provided that the proviso would apply even if the sale was made after the cessation of the business it is difficult to conceive that it was intended to exclude from the ambit of the proviso realisation sales of the nature contemplated in the previous decisions of this Court. Such a result would be illogical. Even if logic is not necessarily to govern the interpretation of a taxing provision, the rule of reasonable interpretation cannot beabove observations clearly show that the amending words in the proviso eliminated the third condition which had been laid down for its applicability in the previous decision namely, that the machinery shall have been sold when the business was being carried on and not for the purpose of closing it down or winding it up. Once that condition disappears as a result of the amendment only the first two conditions remain and all that has to be seen is whether during the entire previous year or a part of it the business has been carried on by the assessee and that the machinery has been used in the business. Both these conditions, according to the findings given by the tribunal, exist in the present case. The result would be that the profits arising out of the sale of buses in question as determined by the Income-tax Officer would be chargeable to tax in accordance with the second proviso to Section 10 (2) (vii).
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Anil Kumar Singh Vs. Vijay Pal Singh & Others | sub-rule(1) of Rule 1 read with sub-rule (4)(a) or (b) then in such event, the plaintiff would only be liable to pay cost to the defendant. However, in such situation, he is precluded from filing a fresh suit in respect of the same subject matter or part thereof. 21) Sub-rule (5) of Rule 1 says that, if there are more than one plaintiff then unless all the plaintiffs give consent to withdraw the suit, the permission to withdraw the suit cannot be granted under sub-rule (1) or (3). 22) Coming to the facts of the case on hand, we find that the appellant (plaintiff) had applied for withdrawal of his suit under Order XXIII Rule 1. The Trial Court acceded to the prayer and accordingly granted permission to the appellant to withdraw the suit on payment of cost of Rs.350/- to the defendants. This the Trial Court did by taking recourse to the powers conferred under Order XXIII sub-rule (4)(a) of Rule 1. 23) The effect of this grant of permission to the appellant was that though he was allowed to withdraw the suit but was not permitted to file a fresh suit on the same subject matter. Since only one person had filed the suit and, therefore, sub-rule (5) of Rule 1 was not attracted. 24) In our considered opinion, when the plaintiff files an application under Order XXIII Rule 1 and prays for permission to withdraw the suit, whether in full or part, he is always at liberty to do so and in such case, the defendant has no right to raise any objection to such prayer being made by the plaintiff except to ask for payment of the cost to him by the plaintiff as provided in sub-rule (4). 25) The reason is that while making a prayer to withdraw the suit under Rule 1(1), the plaintiff does not ask for any leave to file a fresh suit on the same subject matter. A mere withdrawal of the suit without asking for anything more can, therefore, be always permitted. In other words, the defendant has no right to compel the plaintiff to prosecute the suit by opposing the withdrawal of suit sought by the plaintiff except to claim the cost for filing a suit against him. 26) However, when the plaintiff applies for withdrawal of the suit along with a prayer to grant him permission to file a fresh suit on the same subject matter as provided in sub-rule (3) of Rule 1 then in such event, the defendant can object to such prayer made by the plaintiff. In such event, it is for the Court to decide as to whether the permission to seek withdrawal of the suit should be granted to the plaintiff and, if so, on what terms as provided in sub-rule (3) of Rule 1. 27) Now coming to the facts of the case, we are of the considered opinion that the Trial Court and the Revision Court (A.D.J) were justified in permitting the appellant (plaintiff) to withdraw the suit under sub-rule (1) of Rule 1. In other words, since the appellant had applied for withdrawal of the suit under Order XXIII Rule 1, the Trial Court was justified in permitting withdrawal of the suit subject to the appellant paying cost of Rs.350/- to respondent No.1 (defendant No.1). Such order, in our view, was in conformity with sub-rule (3) of Rule 1 and was rightly upheld by the Revision Court. 28) The High Court, however, committed jurisdictional error in allowing the defendants writ petition by finding fault in the orders of the Trial Court and Revision Court and giving directions to the plaintiff to place defendant No.1 in possession of the suit land without there being any basis whatsoever. 29) As mentioned above, the High Court should have seen that the scope of writ petition was confined to examine the question as to whether the Trial Court and Revision Court were justified in allowing the application filed by the plaintiff under Order XXIII Rule 1 of the Code and to decide this question, the High Court should have confined its inquiry to examine as to whether the requirements of Order XXIII Rule 1 were complied with or not but not beyond it. 30) There was, therefore, no justification on the part of the High Court to have travelled in the issues relating to the grant of injunction in relation to the suit land and give direction to the appellant (plaintiff) to place respondent No. 1 in possession of the suit land. 31) The High Court should have seen that the issue of grant of injunction was not the subject matter of the writ petition and, therefore, it had nothing to do with the question of withdrawal of the suit and secondly, the withdrawal of a suit was governed by Order XXIII Rule 1 of the Code whereas the injunction was governed by Order XXXIX Rules 1 and 2 of the Code. Both operate in different spheres. That apart, the defendant did not challenge the ex-parte grant of injunction order in appeal under Order XLIII Rule 1(r) and nor contested it before the Trial Court. It was only in these two forums, the issue of injunction could be considered by the Courts but not in present proceedings which, as mentioned above, were confined only to the question of withdrawal of suit and nothing else. 32) In the light of foregoing discussion, we are of the considered opinion that the Trial Court and the Revision Court were justified in permitting the appellant (plaintiff) to withdraw the suit whereas the High Court was not right in setting aside the orders of the Revision Court and the Trial Court and giving directions to place defendant No.1 in possession of the suit land. 33) We, however, make it clear that defendant No.1 would be at liberty to raise issues relating to his ownership and possession in relation to the suit land in appropriate proceedings in accordance with law. | 1[ds]15) Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow the appeal, set aside the impugned order and restore the orders of the Trial Court and the Revision Court19) Reading of Order XXIII Rule 1 would go to show that the plaintiff has a right to file an application to abandon his suit or part thereof at any time after its filing. However, if the permission to withdraw the suit, whether full or part thereof is granted under Rule 1(3), then the plaintiff would be granted liberty to institute a fresh suit on terms as the Court may deem fit and proper to impose on the plaintiff in respect of the same subject matter of the suit or part thereof20) If the permission to withdraw the suit is granted under) of Rule 1 read withe (4)(a) or (b) then in such event, the plaintiff would only be liable to pay cost to the defendant. However, in such situation, he is precluded from filing a fresh suit in respect of the same subject matter or part thereofe (5) of Rule 1 says that, if there are more than one plaintiff then unless all the plaintiffs give consent to withdraw the suit, the permission to withdraw the suit cannot be granted under22) Coming to the facts of the case on hand, we find that the appellant (plaintiff) had applied for withdrawal of his suit under Order XXIII Rule 1. The Trial Court acceded to the prayer and accordingly granted permission to the appellant to withdraw the suit on payment of cost of Rs.350/to the defendants. This the Trial Court did by taking recourse to the powers conferred under Order XXIIIe (4)(a) of Rule 123) The effect of this grant of permission to the appellant was that though he was allowed to withdraw the suit but was not permitted to file a fresh suit on the same subject matter. Since only one person had filed the suit and, therefore,e (5) of Rule 1 was not attracted24) In our considered opinion, when the plaintiff files an application under Order XXIII Rule 1 and prays for permission to withdraw the suit, whether in full or part, he is always at liberty to do so and in such case, the defendant has no right to raise any objection to such prayer being made by the plaintiff except to ask for payment of the cost to him by the plaintiff as provided in25) The reason is that while making a prayer to withdraw the suit under Rule 1(1), the plaintiff does not ask for any leave to file a fresh suit on the same subject matter. A mere withdrawal of the suit without asking for anything more can, therefore, be always permitted. In other words, the defendant has no right to compel the plaintiff to prosecute the suit by opposing the withdrawal of suit sought by the plaintiff except to claim the cost for filing a suit against him26) However, when the plaintiff applies for withdrawal of the suit along with a prayer to grant him permission to file a fresh suit on the same subject matter as provided ine (3) of Rule 1 then in such event, the defendant can object to such prayer made by the plaintiff. In such event, it is for the Court to decide as to whether the permission to seek withdrawal of the suit should be granted to the plaintiff and, if so, on what terms as provided ine (3) of Rule 127) Now coming to the facts of the case, we are of the considered opinion that the Trial Court and the Revision Court (A.D.J) were justified in permitting the appellant (plaintiff) to withdraw the suit undere (1) of Rule 1. In other words, since the appellant had applied for withdrawal of the suit under Order XXIII Rule 1, the Trial Court was justified in permitting withdrawal of the suit subject to the appellant paying cost of Rs.350/to respondent No.1 (defendant No.1). Such order, in our view, was in conformity withe (3) of Rule 1and was rightly upheld by the Revision Court28) The High Court, however, committed jurisdictional error in allowing the defendants writ petition by finding fault in the orders of the Trial Court and Revision Court and giving directions to the plaintiff to place defendant No.1 in possession of the suit land without there being any basis whatsoever29) As mentioned above, the High Court should have seen that the scope of writ petition was confined to examine the question as to whether the Trial Court and Revision Court were justified in allowing the application filed by the plaintiff under Order XXIII Rule 1 of the Code and to decide this question, the High Court should have confined its inquiry to examine as to whether the requirements of Order XXIII Rule 1 were complied with or not but not beyond it30) There was, therefore, no justification on the part of the High Court to have travelled in the issues relating to the grant of injunction in relation to the suit land and give direction to the appellant (plaintiff) to place respondent No. 1 in possession of the suit land31) The High Court should have seen that the issue of grant of injunction was not the subject matter of the writ petition and, therefore, it had nothing to do with the question of withdrawal of the suit and secondly, the withdrawal of a suit was governed by Order XXIII Rule 1 of the Code whereas the injunction was governed by Order XXXIX Rules 1 and 2 of the Code. Both operate in different spheres. That apart, the defendant did not challenge thee grant of injunction order in appeal under Order XLIII Rule 1(r) and nor contested it before the Trial Court. It was only in these two forums, the issue of injunction could be considered by the Courts but not in present proceedings which, as mentioned above, were confined only to the question of withdrawal of suit and nothing else32) In the light of foregoing discussion, we are of the considered opinion that the Trial Court and the Revision Court were justified in permitting the appellant (plaintiff) to withdraw the suit whereas the High Court was not right in setting aside the orders of the Revision Court and the Trial Court and giving directions to place defendant No.1 in possession of the suit land33) We, however, make it clear that defendant No.1 would be at liberty to raise issues relating to his ownership and possession in relation to the suit land in appropriate proceedings in accordance with law. | 1 | 2,823 | 1,240 | ### 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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sub-rule(1) of Rule 1 read with sub-rule (4)(a) or (b) then in such event, the plaintiff would only be liable to pay cost to the defendant. However, in such situation, he is precluded from filing a fresh suit in respect of the same subject matter or part thereof. 21) Sub-rule (5) of Rule 1 says that, if there are more than one plaintiff then unless all the plaintiffs give consent to withdraw the suit, the permission to withdraw the suit cannot be granted under sub-rule (1) or (3). 22) Coming to the facts of the case on hand, we find that the appellant (plaintiff) had applied for withdrawal of his suit under Order XXIII Rule 1. The Trial Court acceded to the prayer and accordingly granted permission to the appellant to withdraw the suit on payment of cost of Rs.350/- to the defendants. This the Trial Court did by taking recourse to the powers conferred under Order XXIII sub-rule (4)(a) of Rule 1. 23) The effect of this grant of permission to the appellant was that though he was allowed to withdraw the suit but was not permitted to file a fresh suit on the same subject matter. Since only one person had filed the suit and, therefore, sub-rule (5) of Rule 1 was not attracted. 24) In our considered opinion, when the plaintiff files an application under Order XXIII Rule 1 and prays for permission to withdraw the suit, whether in full or part, he is always at liberty to do so and in such case, the defendant has no right to raise any objection to such prayer being made by the plaintiff except to ask for payment of the cost to him by the plaintiff as provided in sub-rule (4). 25) The reason is that while making a prayer to withdraw the suit under Rule 1(1), the plaintiff does not ask for any leave to file a fresh suit on the same subject matter. A mere withdrawal of the suit without asking for anything more can, therefore, be always permitted. In other words, the defendant has no right to compel the plaintiff to prosecute the suit by opposing the withdrawal of suit sought by the plaintiff except to claim the cost for filing a suit against him. 26) However, when the plaintiff applies for withdrawal of the suit along with a prayer to grant him permission to file a fresh suit on the same subject matter as provided in sub-rule (3) of Rule 1 then in such event, the defendant can object to such prayer made by the plaintiff. In such event, it is for the Court to decide as to whether the permission to seek withdrawal of the suit should be granted to the plaintiff and, if so, on what terms as provided in sub-rule (3) of Rule 1. 27) Now coming to the facts of the case, we are of the considered opinion that the Trial Court and the Revision Court (A.D.J) were justified in permitting the appellant (plaintiff) to withdraw the suit under sub-rule (1) of Rule 1. In other words, since the appellant had applied for withdrawal of the suit under Order XXIII Rule 1, the Trial Court was justified in permitting withdrawal of the suit subject to the appellant paying cost of Rs.350/- to respondent No.1 (defendant No.1). Such order, in our view, was in conformity with sub-rule (3) of Rule 1 and was rightly upheld by the Revision Court. 28) The High Court, however, committed jurisdictional error in allowing the defendants writ petition by finding fault in the orders of the Trial Court and Revision Court and giving directions to the plaintiff to place defendant No.1 in possession of the suit land without there being any basis whatsoever. 29) As mentioned above, the High Court should have seen that the scope of writ petition was confined to examine the question as to whether the Trial Court and Revision Court were justified in allowing the application filed by the plaintiff under Order XXIII Rule 1 of the Code and to decide this question, the High Court should have confined its inquiry to examine as to whether the requirements of Order XXIII Rule 1 were complied with or not but not beyond it. 30) There was, therefore, no justification on the part of the High Court to have travelled in the issues relating to the grant of injunction in relation to the suit land and give direction to the appellant (plaintiff) to place respondent No. 1 in possession of the suit land. 31) The High Court should have seen that the issue of grant of injunction was not the subject matter of the writ petition and, therefore, it had nothing to do with the question of withdrawal of the suit and secondly, the withdrawal of a suit was governed by Order XXIII Rule 1 of the Code whereas the injunction was governed by Order XXXIX Rules 1 and 2 of the Code. Both operate in different spheres. That apart, the defendant did not challenge the ex-parte grant of injunction order in appeal under Order XLIII Rule 1(r) and nor contested it before the Trial Court. It was only in these two forums, the issue of injunction could be considered by the Courts but not in present proceedings which, as mentioned above, were confined only to the question of withdrawal of suit and nothing else. 32) In the light of foregoing discussion, we are of the considered opinion that the Trial Court and the Revision Court were justified in permitting the appellant (plaintiff) to withdraw the suit whereas the High Court was not right in setting aside the orders of the Revision Court and the Trial Court and giving directions to place defendant No.1 in possession of the suit land. 33) We, however, make it clear that defendant No.1 would be at liberty to raise issues relating to his ownership and possession in relation to the suit land in appropriate proceedings in accordance with law.
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### Explanation:
deem fit and proper to impose on the plaintiff in respect of the same subject matter of the suit or part thereof20) If the permission to withdraw the suit is granted under) of Rule 1 read withe (4)(a) or (b) then in such event, the plaintiff would only be liable to pay cost to the defendant. However, in such situation, he is precluded from filing a fresh suit in respect of the same subject matter or part thereofe (5) of Rule 1 says that, if there are more than one plaintiff then unless all the plaintiffs give consent to withdraw the suit, the permission to withdraw the suit cannot be granted under22) Coming to the facts of the case on hand, we find that the appellant (plaintiff) had applied for withdrawal of his suit under Order XXIII Rule 1. The Trial Court acceded to the prayer and accordingly granted permission to the appellant to withdraw the suit on payment of cost of Rs.350/to the defendants. This the Trial Court did by taking recourse to the powers conferred under Order XXIIIe (4)(a) of Rule 123) The effect of this grant of permission to the appellant was that though he was allowed to withdraw the suit but was not permitted to file a fresh suit on the same subject matter. Since only one person had filed the suit and, therefore,e (5) of Rule 1 was not attracted24) In our considered opinion, when the plaintiff files an application under Order XXIII Rule 1 and prays for permission to withdraw the suit, whether in full or part, he is always at liberty to do so and in such case, the defendant has no right to raise any objection to such prayer being made by the plaintiff except to ask for payment of the cost to him by the plaintiff as provided in25) The reason is that while making a prayer to withdraw the suit under Rule 1(1), the plaintiff does not ask for any leave to file a fresh suit on the same subject matter. A mere withdrawal of the suit without asking for anything more can, therefore, be always permitted. In other words, the defendant has no right to compel the plaintiff to prosecute the suit by opposing the withdrawal of suit sought by the plaintiff except to claim the cost for filing a suit against him26) However, when the plaintiff applies for withdrawal of the suit along with a prayer to grant him permission to file a fresh suit on the same subject matter as provided ine (3) of Rule 1 then in such event, the defendant can object to such prayer made by the plaintiff. In such event, it is for the Court to decide as to whether the permission to seek withdrawal of the suit should be granted to the plaintiff and, if so, on what terms as provided ine (3) of Rule 127) Now coming to the facts of the case, we are of the considered opinion that the Trial Court and the Revision Court (A.D.J) were justified in permitting the appellant (plaintiff) to withdraw the suit undere (1) of Rule 1. In other words, since the appellant had applied for withdrawal of the suit under Order XXIII Rule 1, the Trial Court was justified in permitting withdrawal of the suit subject to the appellant paying cost of Rs.350/to respondent No.1 (defendant No.1). Such order, in our view, was in conformity withe (3) of Rule 1and was rightly upheld by the Revision Court28) The High Court, however, committed jurisdictional error in allowing the defendants writ petition by finding fault in the orders of the Trial Court and Revision Court and giving directions to the plaintiff to place defendant No.1 in possession of the suit land without there being any basis whatsoever29) As mentioned above, the High Court should have seen that the scope of writ petition was confined to examine the question as to whether the Trial Court and Revision Court were justified in allowing the application filed by the plaintiff under Order XXIII Rule 1 of the Code and to decide this question, the High Court should have confined its inquiry to examine as to whether the requirements of Order XXIII Rule 1 were complied with or not but not beyond it30) There was, therefore, no justification on the part of the High Court to have travelled in the issues relating to the grant of injunction in relation to the suit land and give direction to the appellant (plaintiff) to place respondent No. 1 in possession of the suit land31) The High Court should have seen that the issue of grant of injunction was not the subject matter of the writ petition and, therefore, it had nothing to do with the question of withdrawal of the suit and secondly, the withdrawal of a suit was governed by Order XXIII Rule 1 of the Code whereas the injunction was governed by Order XXXIX Rules 1 and 2 of the Code. Both operate in different spheres. That apart, the defendant did not challenge thee grant of injunction order in appeal under Order XLIII Rule 1(r) and nor contested it before the Trial Court. It was only in these two forums, the issue of injunction could be considered by the Courts but not in present proceedings which, as mentioned above, were confined only to the question of withdrawal of suit and nothing else32) In the light of foregoing discussion, we are of the considered opinion that the Trial Court and the Revision Court were justified in permitting the appellant (plaintiff) to withdraw the suit whereas the High Court was not right in setting aside the orders of the Revision Court and the Trial Court and giving directions to place defendant No.1 in possession of the suit land33) We, however, make it clear that defendant No.1 would be at liberty to raise issues relating to his ownership and possession in relation to the suit land in appropriate proceedings in accordance with law.
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ORIENTAL INSURANCE COMPANY LIMITED Vs. M/S NARBHERAM POWER AND STEEL PVT LTD | be referred to arbitration since the plea advanced by the owner could be decided by the arbitrator. We do not intend to dwell upon the correctness of the said decision as the issue involved in the present case is quite different.22. In A. Ayyasamy (supra), a two-Judge Bench was concerned with the issue as to whether the plea of fraud can be adequately taken care of by the arbitrator. Sikri. J., analyzing the facts, opined:- ?28. We, therefore, are of the opinion that the allegations of purported fraud were not so serious which cannot be taken care of by the arbitrator. The courts below, therefore, fell in error in rejecting the application of the appellant under Section 8 of the Act. Reversing these judgments, we allow these appeals and as a consequence, application filed by the appellant under Section 8 in the suit is allowed thereby relegating the parties to the arbitration.? Chandrachud J., in his concurring opinion, after referring to many an authority and literature in the field of arbitration, came to hold:- ?53. The Arbitration and Conciliation Act, 1996, should in my view be interpreted so as to bring in line the principles underlying its interpretation in a manner that is consistent with prevailing approaches in the common law world. Jurisprudence in India must evolve towards strengthening the institutional efficacy of arbitration. Deference to a forum chosen by parties as a complete remedy for resolving all their claims is but part of that evolution. Minimising the intervention of courts is again a recognition of the same principle.? He has further held that the mere allegation of fraud in the factual scenario was not sufficient to detract the parties from the obligation to submit their disputes to arbitration keeping in view the letter and spirit of the 1996 Act. The decision, in our considered view, is not applicable to the case at hand.23. Though the learned counsel for the respondent has referred to the case of Chloro Controls India Private Limited (supra), yet the same need not be analyzed as it is not an authority remotely relevant for deciding the lis in the present case.24. It does not need special emphasis that an arbitration clause is required to be strictly construed. Any expression in the clause must unequivocally express the intent of arbitration. It can also lay the postulate in which situations the arbitration clause cannot be given effect to. If a clause stipulates that under certain circumstances there can be no arbitration, and they are demonstrably clear then the controversy pertaining to the appointment of arbitrator has to be put to rest.25. In the instant case, Clause 13 categorically lays the postulate that if the insurer has disputed or not accepted the liability, no difference or dispute shall be referred to arbitration. The thrust of the matter is whether the insurer has disputed or not accepted the liability under or in respect of the policy. The rejection of the claim of the respondent made vide letter dated 26.12.2014 ascribes the following reasons:- ?1. Alleged loss of imported coal is clearly an inventory shortage. 2. There was no actual loss of stock in process. 3. The damage to the sponge iron is due to inherent vice. 4. The loss towards building/sheds etc. are exaggerated to cover insured maintenance. 5. As there is no material damage thus business interruption loss does not triggered.? 26. The aforesaid communication, submits the learned senior counsel for the respondent, does not amount to denial of liability under or in respect of the policy. On a reading of the communication, we think, the disputation squarely comes within Part II of Clause 13. The said Part of the Clause clearly spells out that the parties have agreed and understood that no differences and disputes shall be referable to arbitration if the company has disputed or not accepted the liability. The communication ascribes reasons for not accepting the claim at all. It is nothing else but denial of liability by the insurer in toto. It is not a disputation pertaining to quantum. In the present case, we are not concerned with regard to whether the policy was void or not as the same was not raised by the insurer. The insurance-company has, on facts, repudiated the claim by denying to accept the liability on the basis of the aforesaid reasons. No inference can be drawn that there is some kind of dispute with regard to quantification. It is a denial to indemnify the loss as claimed by the respondent. Such a situation, according to us, falls on all fours within the concept of denial of disputes and non-acceptance of liability. It is not one of the arbitration clauses which can be interpreted in a way that denial of a claim would itself amount to dispute and, therefore, it has to be referred to arbitration. The parties are bound by the terms and conditions agreed under the policy and the arbitration clause contained in it. It is not a case where mere allegation of fraud is leaned upon to avoid the arbitration. It is not a situation where a stand is taken that certain claims pertain to excepted matters and are, hence, not arbitrable. The language used in the second part is absolutely categorical and unequivocal inasmuch as it stipulates that it is clearly agreed and understood that no difference or disputes shall be referable to arbitration if the company has disputed or not accepted the liability. The High Court has fallen into grave error by expressing the opinion that there is incongruity between Part II and Part III. The said analysis runs counter to the principles laid down in the three-Judge Bench decision in The Vulcan Insurance Co. Ltd (supra). Therefore, the only remedy which the respondent can take recourse to is to institute a civil suit for mitigation of the grievances. If a civil suit is filed within two months hence, the benefit of Section 14 of the Limitation Act, 1963 will enure to its benefit. | 1[ds]It is our obligation to mention here that though the respondent has placed reliance upon the said authority, yet the same does not assist him. On the contrary, it dispels the perception of ambiguity in Part II and Part III of the arbitration clause as perceived by the High Court. That apart, it throws light on the issue of repudiation.20. We may presently refer to the decision of the Madras High Court in M/s. Jumbo Bags Ltd. (supra). In the said case, learned Chief Justice was interpreting Clause 13 of the policy conditions. Referring to The Vulcan Insurance Co. Ltd. (supra), he has held thus:-?The dispute which is not referable to arbitration, being not covered by the clause cannot be over the subject matter of arbitration, and the remedy of the insured in this case is only to institute a suit.?And again :-?I am of the view that the remedy of arbitration is not available to the petitioner herein in view of the arbitration clause specifically excluding the mode of adjudication of disputes by arbitration, where a claim is repudiated in toto. The remedy would thus only be of a civil suit in accordance with law.?We concur with the said view.21. In Essar Steel India Limited (supra), the learned Single Judge of the Bombay High Court was dealing with a situation where the insurer had taken the stand that the policy was void ab initio. Repelling the said stand, the learned Single Judge held that the disputes could be referred to arbitration since the plea advanced by the owner could be decided by the arbitrator. We do not intend to dwell upon the correctness of the said decision as the issue involved in the present case is quite different.22. In A. Ayyasamy (supra), a two-Judge Bench was concerned with the issue as to whether the plea of fraud can be adequately taken care of by the arbitrator. Sikri. J., analyzing the facts, opined:-?28. We, therefore, are of the opinion that the allegations of purported fraud were not so serious which cannot be taken care of by the arbitrator. The courts below, therefore, fell in error in rejecting the application of the appellant under Section 8 of the Act. Reversing these judgments, we allow these appeals and as a consequence, application filed by the appellant under Section 8 in the suit is allowed thereby relegating the parties to the arbitration.?Chandrachud J., in his concurring opinion, after referring to many an authority and literature in the field of arbitration, came toThe Arbitration and Conciliation Act, 1996, should in my view be interpreted so as to bring in line the principles underlying its interpretation in a manner that is consistent with prevailing approaches in the common law world. Jurisprudence in India must evolve towards strengthening the institutional efficacy of arbitration. Deference to a forum chosen by parties as a complete remedy for resolving all their claims is but part of that evolution. Minimising the intervention of courts is again a recognition of the same principle.?He has further held that the mere allegation of fraud in the factual scenario was not sufficient to detract the parties from the obligation to submit their disputes to arbitration keeping in view the letter and spirit of the 1996 Act. The decision, in our considered view, is not applicable to the case at hand.23. Though the learned counsel for the respondent has referred to the case of Chloro Controls India Private Limited (supra), yet the same need not be analyzed as it is not an authority remotely relevant for deciding the lis in the present case.24. It does not need special emphasis that an arbitration clause is required to be strictly construed. Any expression in the clause must unequivocally express the intent of arbitration. It can also lay the postulate in which situations the arbitration clause cannot be given effect to. If a clause stipulates that under certain circumstances there can be no arbitration, and they are demonstrably clear then the controversy pertaining to the appointment of arbitrator has to be put to rest.25. In the instant case, Clause 13 categorically lays the postulate that if the insurer has disputed or not accepted the liability, no difference or dispute shall be referred to arbitration.The aforesaid communication, submits the learned senior counsel for the respondent, does not amount to denial of liability under or in respect of the policy.On a reading of the communication, we think, the disputation squarely comes within Part II of Clause 13. The said Part of the Clause clearly spells out that the parties have agreed and understood that no differences and disputes shall be referable to arbitration if the company has disputed or not accepted the liability. The communication ascribes reasons for not accepting the claim at all. It is nothing else but denial of liability by the insurer in toto. It is not a disputation pertaining to quantum. In the present case, we are not concerned with regard to whether the policy was void or not as the same was not raised by the insurer. The insurance-company has, on facts, repudiated the claim by denying to accept the liability on the basis of the aforesaid reasons. No inference can be drawn that there is some kind of dispute with regard to quantification. It is a denial to indemnify the loss as claimed by the respondent. Such a situation, according to us, falls on all fours within the concept of denial of disputes and non-acceptance of liability. It is not one of the arbitration clauses which can be interpreted in a way that denial of a claim would itself amount to dispute and, therefore, it has to be referred to arbitration. The parties are bound by the terms and conditions agreed under the policy and the arbitration clause contained in it. It is not a case where mere allegation of fraud is leaned upon to avoid the arbitration. It is not a situation where a stand is taken that certain claims pertain to excepted matters and are, hence, not arbitrable. The language used in the second part is absolutely categorical and unequivocal inasmuch as it stipulates that it is clearly agreed and understood that no difference or disputes shall be referable to arbitration if the company has disputed or not accepted the liability. The High Court has fallen into grave error by expressing the opinion that there is incongruity between Part II and Part III. The said analysis runs counter to the principles laid down in the three-Judge Bench decision in The Vulcan Insurance Co. Ltd (supra). Therefore, the only remedy which the respondent can take recourse to is to institute a civil suit for mitigation of the grievances. If a civil suit is filed within two months hence, the benefit of Section 14 of the Limitation Act, 1963 will enure to its benefit. | 1 | 5,017 | 1,273 | ### 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:
be referred to arbitration since the plea advanced by the owner could be decided by the arbitrator. We do not intend to dwell upon the correctness of the said decision as the issue involved in the present case is quite different.22. In A. Ayyasamy (supra), a two-Judge Bench was concerned with the issue as to whether the plea of fraud can be adequately taken care of by the arbitrator. Sikri. J., analyzing the facts, opined:- ?28. We, therefore, are of the opinion that the allegations of purported fraud were not so serious which cannot be taken care of by the arbitrator. The courts below, therefore, fell in error in rejecting the application of the appellant under Section 8 of the Act. Reversing these judgments, we allow these appeals and as a consequence, application filed by the appellant under Section 8 in the suit is allowed thereby relegating the parties to the arbitration.? Chandrachud J., in his concurring opinion, after referring to many an authority and literature in the field of arbitration, came to hold:- ?53. The Arbitration and Conciliation Act, 1996, should in my view be interpreted so as to bring in line the principles underlying its interpretation in a manner that is consistent with prevailing approaches in the common law world. Jurisprudence in India must evolve towards strengthening the institutional efficacy of arbitration. Deference to a forum chosen by parties as a complete remedy for resolving all their claims is but part of that evolution. Minimising the intervention of courts is again a recognition of the same principle.? He has further held that the mere allegation of fraud in the factual scenario was not sufficient to detract the parties from the obligation to submit their disputes to arbitration keeping in view the letter and spirit of the 1996 Act. The decision, in our considered view, is not applicable to the case at hand.23. Though the learned counsel for the respondent has referred to the case of Chloro Controls India Private Limited (supra), yet the same need not be analyzed as it is not an authority remotely relevant for deciding the lis in the present case.24. It does not need special emphasis that an arbitration clause is required to be strictly construed. Any expression in the clause must unequivocally express the intent of arbitration. It can also lay the postulate in which situations the arbitration clause cannot be given effect to. If a clause stipulates that under certain circumstances there can be no arbitration, and they are demonstrably clear then the controversy pertaining to the appointment of arbitrator has to be put to rest.25. In the instant case, Clause 13 categorically lays the postulate that if the insurer has disputed or not accepted the liability, no difference or dispute shall be referred to arbitration. The thrust of the matter is whether the insurer has disputed or not accepted the liability under or in respect of the policy. The rejection of the claim of the respondent made vide letter dated 26.12.2014 ascribes the following reasons:- ?1. Alleged loss of imported coal is clearly an inventory shortage. 2. There was no actual loss of stock in process. 3. The damage to the sponge iron is due to inherent vice. 4. The loss towards building/sheds etc. are exaggerated to cover insured maintenance. 5. As there is no material damage thus business interruption loss does not triggered.? 26. The aforesaid communication, submits the learned senior counsel for the respondent, does not amount to denial of liability under or in respect of the policy. On a reading of the communication, we think, the disputation squarely comes within Part II of Clause 13. The said Part of the Clause clearly spells out that the parties have agreed and understood that no differences and disputes shall be referable to arbitration if the company has disputed or not accepted the liability. The communication ascribes reasons for not accepting the claim at all. It is nothing else but denial of liability by the insurer in toto. It is not a disputation pertaining to quantum. In the present case, we are not concerned with regard to whether the policy was void or not as the same was not raised by the insurer. The insurance-company has, on facts, repudiated the claim by denying to accept the liability on the basis of the aforesaid reasons. No inference can be drawn that there is some kind of dispute with regard to quantification. It is a denial to indemnify the loss as claimed by the respondent. Such a situation, according to us, falls on all fours within the concept of denial of disputes and non-acceptance of liability. It is not one of the arbitration clauses which can be interpreted in a way that denial of a claim would itself amount to dispute and, therefore, it has to be referred to arbitration. The parties are bound by the terms and conditions agreed under the policy and the arbitration clause contained in it. It is not a case where mere allegation of fraud is leaned upon to avoid the arbitration. It is not a situation where a stand is taken that certain claims pertain to excepted matters and are, hence, not arbitrable. The language used in the second part is absolutely categorical and unequivocal inasmuch as it stipulates that it is clearly agreed and understood that no difference or disputes shall be referable to arbitration if the company has disputed or not accepted the liability. The High Court has fallen into grave error by expressing the opinion that there is incongruity between Part II and Part III. The said analysis runs counter to the principles laid down in the three-Judge Bench decision in The Vulcan Insurance Co. Ltd (supra). Therefore, the only remedy which the respondent can take recourse to is to institute a civil suit for mitigation of the grievances. If a civil suit is filed within two months hence, the benefit of Section 14 of the Limitation Act, 1963 will enure to its benefit.
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suit.?And again :-?I am of the view that the remedy of arbitration is not available to the petitioner herein in view of the arbitration clause specifically excluding the mode of adjudication of disputes by arbitration, where a claim is repudiated in toto. The remedy would thus only be of a civil suit in accordance with law.?We concur with the said view.21. In Essar Steel India Limited (supra), the learned Single Judge of the Bombay High Court was dealing with a situation where the insurer had taken the stand that the policy was void ab initio. Repelling the said stand, the learned Single Judge held that the disputes could be referred to arbitration since the plea advanced by the owner could be decided by the arbitrator. We do not intend to dwell upon the correctness of the said decision as the issue involved in the present case is quite different.22. In A. Ayyasamy (supra), a two-Judge Bench was concerned with the issue as to whether the plea of fraud can be adequately taken care of by the arbitrator. Sikri. J., analyzing the facts, opined:-?28. We, therefore, are of the opinion that the allegations of purported fraud were not so serious which cannot be taken care of by the arbitrator. The courts below, therefore, fell in error in rejecting the application of the appellant under Section 8 of the Act. Reversing these judgments, we allow these appeals and as a consequence, application filed by the appellant under Section 8 in the suit is allowed thereby relegating the parties to the arbitration.?Chandrachud J., in his concurring opinion, after referring to many an authority and literature in the field of arbitration, came toThe Arbitration and Conciliation Act, 1996, should in my view be interpreted so as to bring in line the principles underlying its interpretation in a manner that is consistent with prevailing approaches in the common law world. Jurisprudence in India must evolve towards strengthening the institutional efficacy of arbitration. Deference to a forum chosen by parties as a complete remedy for resolving all their claims is but part of that evolution. Minimising the intervention of courts is again a recognition of the same principle.?He has further held that the mere allegation of fraud in the factual scenario was not sufficient to detract the parties from the obligation to submit their disputes to arbitration keeping in view the letter and spirit of the 1996 Act. The decision, in our considered view, is not applicable to the case at hand.23. Though the learned counsel for the respondent has referred to the case of Chloro Controls India Private Limited (supra), yet the same need not be analyzed as it is not an authority remotely relevant for deciding the lis in the present case.24. It does not need special emphasis that an arbitration clause is required to be strictly construed. Any expression in the clause must unequivocally express the intent of arbitration. It can also lay the postulate in which situations the arbitration clause cannot be given effect to. If a clause stipulates that under certain circumstances there can be no arbitration, and they are demonstrably clear then the controversy pertaining to the appointment of arbitrator has to be put to rest.25. In the instant case, Clause 13 categorically lays the postulate that if the insurer has disputed or not accepted the liability, no difference or dispute shall be referred to arbitration.The aforesaid communication, submits the learned senior counsel for the respondent, does not amount to denial of liability under or in respect of the policy.On a reading of the communication, we think, the disputation squarely comes within Part II of Clause 13. The said Part of the Clause clearly spells out that the parties have agreed and understood that no differences and disputes shall be referable to arbitration if the company has disputed or not accepted the liability. The communication ascribes reasons for not accepting the claim at all. It is nothing else but denial of liability by the insurer in toto. It is not a disputation pertaining to quantum. In the present case, we are not concerned with regard to whether the policy was void or not as the same was not raised by the insurer. The insurance-company has, on facts, repudiated the claim by denying to accept the liability on the basis of the aforesaid reasons. No inference can be drawn that there is some kind of dispute with regard to quantification. It is a denial to indemnify the loss as claimed by the respondent. Such a situation, according to us, falls on all fours within the concept of denial of disputes and non-acceptance of liability. It is not one of the arbitration clauses which can be interpreted in a way that denial of a claim would itself amount to dispute and, therefore, it has to be referred to arbitration. The parties are bound by the terms and conditions agreed under the policy and the arbitration clause contained in it. It is not a case where mere allegation of fraud is leaned upon to avoid the arbitration. It is not a situation where a stand is taken that certain claims pertain to excepted matters and are, hence, not arbitrable. The language used in the second part is absolutely categorical and unequivocal inasmuch as it stipulates that it is clearly agreed and understood that no difference or disputes shall be referable to arbitration if the company has disputed or not accepted the liability. The High Court has fallen into grave error by expressing the opinion that there is incongruity between Part II and Part III. The said analysis runs counter to the principles laid down in the three-Judge Bench decision in The Vulcan Insurance Co. Ltd (supra). Therefore, the only remedy which the respondent can take recourse to is to institute a civil suit for mitigation of the grievances. If a civil suit is filed within two months hence, the benefit of Section 14 of the Limitation Act, 1963 will enure to its benefit.
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M/S.Naturalle Health Products (P)Ltd Vs. Collector Of Central Excise, Hyderabad | case of appellant in Civil Appeal No. 2072/1996, the products satisfy the definition in Section 2(h) of Drugs & Cosmetics Act as patent or proprietary Ayurvedic medicines also. Further, the manufacture of this medicament is being done under the Ayurvedic drug licence issued by competent authority. 39. The Vice-President and one of the Members of the Tribunal observed that the products in question are mentioned in Martindales "The Extra Pharmacopoeia" published in U.K. and it is also a patented medicine in USA and and marked there as Allopathic medicine. These facts were not alleged in the show-cause notice. In the absence of any material on record as to how the products are treated and understood in U.K. U.S.A., etc. the observations of the learned Members of the Tribunal are not warranted. Even if it is a patented medicine in U.S.A. it does not cease to be an exclusively Ayurvedic medicine if it has the characteristics of such medicine. It is also relevant to note that after remand by the Tribunal in Richardson Hindustan case (which was confirmed by this Court), we are told that Vicks Vaporub and inhaler have been held to be Ayurvedic medicines coming under classification No. 3003.30. If those two products having the same brand name Vicks are treated as Ayurvedic medicines failing under classification No. 3003.30 after applying the tests laid down by the Tribunal there is no reason why the same classification should not apply to the products in the present case. As submitted by the appellant, the ingredients used in these products have sources as natural herbs and extracts taken from such herbs and have been purified to the pharmaceutical grade before using the same. We would also like to point out that the comment of one of the learned Members that admittedly, the assessee is not using genuine and pure Ayurvedic ingredients is wholly incorrect. There is no such admission anywhere. The assessee has been throughout contending that the ingredients used are mentioned in authoritative Ayurvedic text books and they are natural products from herbs and plants which were only refined. 40. In terms of the order passed by the CEGAT in the case of Richardson Hindustan Ltd. vs. Collector of Central Excise (1988 (35) 424 (Tribunal) which has been affirmed by this Court and similar view taken in other cases referred to supra, the following clear propositions and findings emerges: "(a) That the word Ayurvedic Medicine not having been defined in the Central Excise and Salt Act, 1944 or the Central Excise Tariff Act, 1985, the common parlance test would have to be resorted to find out whether a medicine is treated as an Ayurvedic medicine by the public;(b) That it is necessary that the ingredients of Ayurvedic Medicine should be mentioned in authoritative books on Ayurvedic Medicines." 41. We are also of the opinion that when there is no definition of any kind in the relevant taxing statute, the articles enumerated in the tariff schedules must be construed as far as possible in their ordinary or popular sense, that is, how the common man and persons dealing with it understand it. If the customers and the practitioners in Ayurvedic medicine, the dealers and the licensing officials treat the products in question as Ayurvedic medicines and not as Allopathic medicines, that fact gives an indication that they are exclusively ayurvedic medicines or that they are used in Ayurvedic system of medicine, though it is a patented medicine. This is especially so when all the ingredients used as mentioned in the authoritative books on Ayurveda. As rightly contended by the counsel for the appellants, the essential character of the medicine and the primary function of the medicine is derived from the active ingredients contained therein and it has certainly a bearing on the determination of classification under the Central Excise Act. As held in Amruthanjan case, the mere fact that the ingredients are purified or added with some preservatives does not really alter their character. 42. In C.A. No. 2072 of 1996, the affidavits of Ayurvedic practitioners were filed before the adjudicating authority to establish that these products are recognised and being used in Ayurvedic system of medicine. The Assistant Collector ignored them with a cryptic observation that they are self-serving. No other authorities including the Tribunal have considered such material. No evidence to the contra has been relied upon by the Department. When we come to the appeal of Akin Laboratories Pvt. Ltd., the assessee filed affidavits from doctors, users and stockists and also furnished clinical trial report from Government Ayurvedic Hospital, Hyderabad. The label of the product showing it as Ayurvedic medicine was also relied on. The Collector (Appeals) gave a finding that both the tests i.e. common parlance and ingredient tests are satisfied. The affidavit evidence was not rebutted by the Department by producing any contra evidence. As against the clear finding of the appellate Collector, the Tribunal merely commented that a few certificates given by a doctor or owner of a medical shop does not advance the case of the assessee. The Tribunal allowed the Revenuess appeal following the decision in Naturalle Health Products Pvt. Ltd. (Appellant in C.A. No. 2072 of 1996). 43. In our view, the Tribunal has completely misdirected itself in law and on facts by being influenced by the unimportant factors like the mention of similar names of goods in Martindale and patent of the same in USA and failed to take into account the relevant factors like the issue of licence to manufacture Ayurvedic drug under the Drugs Act, the popular understanding of the products, the law laid down by this Court in the cases referred to above and the circular issued by the Government of India in the light of Richardson Hindustan case. The Tribunal placed undue reliance on the definition of Ayurvedic medicament in Section 2(a) of the Drugs Act. In our opinion, all the products ought to be classified as Ayurvedic medicaments under sub-heading 3003.30 of the Central Excise Tariff. 44. | 1[ds]30. It isseen from the above circular that the Government have accepted two tests for determining the classification of the products claimed to be the Ayurvedic medicines and the statutory authorities were directed to keep this in view while deciding similar pending assessments of the type indicated in the circular and be finalised on the above basis. It is also seen from the circular that the aforesaid two tests have been upheld by this Court in the case of C.A.No. 2127 of 1998 - C.C.E. Hyderabad, vs. M/s. Richardson Ltd. Order dated 10.1.1999.Thus, it is seen that the CEGATs decision and the circular of the Board does not lay down any tests regarding the formulae of manufacture as per authoritative Ayurvedic textalready noticed, the Government have issued a circular on the basis of the representations received from the manufacturers of Ayurvedic preparations and the doubts in regard to the question whether the products claimed to be Ayurvedic medicines, are, in fact, so and whether they would merit classification under sub-heading 3003.30 of the Schedule to the Central Excise Tariff Act, 1985. The Government of India after examining the matter in the light of the parameters prescribed by the Tribunal in their Order passed in M/s. Richardson Hindustan Ltd. vs. C.C.E., Hyderabad which has been upheld by this Court in C.A.No. 2127 of 1998 have issued the circular clarifying the correct position in regard to the classification and reiterating the said two test. The argument of Mr. Raju Ramachandran, therefore, has no force and is liable to be rejected.From the above, it is clear that a patent Ayuvedic medicament could be one where all the ingredients find mention in the authoritative text books on Ayurveda, though the formula for preparation of the medicament is not in accordance with the formula given in those text books. It is not in dispute that all the ingredients are mentioned in the authoritative text books on Ayurveda. In fact, in the case of appellant in Civil Appeal No. 2072/1996, the products satisfy the definition in Section 2(h) of Drugs & Cosmetics Act as patent or proprietary Ayurvedic medicines also. Further, the manufacture of this medicament is being done under the Ayurvedic drug licence issued by competent authority.We are also of the opinion that when there is no definition of any kind in the relevant taxing statute, the articles enumerated in the tariff schedules must be construed as far as possible in their ordinary or popular sense, that is, how the common man and persons dealing with it understand it. If the customers and the practitioners in Ayurvedic medicine, the dealers and the licensing officials treat the products in question as Ayurvedic medicines and not as Allopathic medicines, that fact gives an indication that they are exclusively ayurvedic medicines or that they are used in Ayurvedic system of medicine, though it is a patented medicine. This is especially so when all the ingredients used as mentioned in the authoritative books on Ayurveda. As rightly contended by the counsel for the appellants, the essential character of the medicine and the primary function of the medicine is derived from the active ingredients contained therein and it has certainly a bearing on the determination of classification under the Central Excise Act. As held in Amruthanjan case, the mere fact that the ingredients are purified or added with some preservatives does not really alter their character.In our view, the Tribunal has completely misdirected itself in law and on facts by being influenced by the unimportant factors like the mention of similar names of goods in Martindale and patent of the same in USA and failed to take into account the relevant factors like the issue of licence to manufacture Ayurvedic drug under the Drugs Act, the popular understanding of the products, the law laid down by this Court in the cases referred to above and the circular issued by the Government of India in the light of Richardson Hindustan case. The Tribunal placed undue reliance on the definition of Ayurvedic medicament in Section 2(a) of the Drugs Act. In our opinion, all the products ought to be classified as Ayurvedic medicaments under sub-heading 3003.30 of the Central Excise Tariff. | 1 | 8,164 | 757 | ### Instruction:
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case of appellant in Civil Appeal No. 2072/1996, the products satisfy the definition in Section 2(h) of Drugs & Cosmetics Act as patent or proprietary Ayurvedic medicines also. Further, the manufacture of this medicament is being done under the Ayurvedic drug licence issued by competent authority. 39. The Vice-President and one of the Members of the Tribunal observed that the products in question are mentioned in Martindales "The Extra Pharmacopoeia" published in U.K. and it is also a patented medicine in USA and and marked there as Allopathic medicine. These facts were not alleged in the show-cause notice. In the absence of any material on record as to how the products are treated and understood in U.K. U.S.A., etc. the observations of the learned Members of the Tribunal are not warranted. Even if it is a patented medicine in U.S.A. it does not cease to be an exclusively Ayurvedic medicine if it has the characteristics of such medicine. It is also relevant to note that after remand by the Tribunal in Richardson Hindustan case (which was confirmed by this Court), we are told that Vicks Vaporub and inhaler have been held to be Ayurvedic medicines coming under classification No. 3003.30. If those two products having the same brand name Vicks are treated as Ayurvedic medicines failing under classification No. 3003.30 after applying the tests laid down by the Tribunal there is no reason why the same classification should not apply to the products in the present case. As submitted by the appellant, the ingredients used in these products have sources as natural herbs and extracts taken from such herbs and have been purified to the pharmaceutical grade before using the same. We would also like to point out that the comment of one of the learned Members that admittedly, the assessee is not using genuine and pure Ayurvedic ingredients is wholly incorrect. There is no such admission anywhere. The assessee has been throughout contending that the ingredients used are mentioned in authoritative Ayurvedic text books and they are natural products from herbs and plants which were only refined. 40. In terms of the order passed by the CEGAT in the case of Richardson Hindustan Ltd. vs. Collector of Central Excise (1988 (35) 424 (Tribunal) which has been affirmed by this Court and similar view taken in other cases referred to supra, the following clear propositions and findings emerges: "(a) That the word Ayurvedic Medicine not having been defined in the Central Excise and Salt Act, 1944 or the Central Excise Tariff Act, 1985, the common parlance test would have to be resorted to find out whether a medicine is treated as an Ayurvedic medicine by the public;(b) That it is necessary that the ingredients of Ayurvedic Medicine should be mentioned in authoritative books on Ayurvedic Medicines." 41. We are also of the opinion that when there is no definition of any kind in the relevant taxing statute, the articles enumerated in the tariff schedules must be construed as far as possible in their ordinary or popular sense, that is, how the common man and persons dealing with it understand it. If the customers and the practitioners in Ayurvedic medicine, the dealers and the licensing officials treat the products in question as Ayurvedic medicines and not as Allopathic medicines, that fact gives an indication that they are exclusively ayurvedic medicines or that they are used in Ayurvedic system of medicine, though it is a patented medicine. This is especially so when all the ingredients used as mentioned in the authoritative books on Ayurveda. As rightly contended by the counsel for the appellants, the essential character of the medicine and the primary function of the medicine is derived from the active ingredients contained therein and it has certainly a bearing on the determination of classification under the Central Excise Act. As held in Amruthanjan case, the mere fact that the ingredients are purified or added with some preservatives does not really alter their character. 42. In C.A. No. 2072 of 1996, the affidavits of Ayurvedic practitioners were filed before the adjudicating authority to establish that these products are recognised and being used in Ayurvedic system of medicine. The Assistant Collector ignored them with a cryptic observation that they are self-serving. No other authorities including the Tribunal have considered such material. No evidence to the contra has been relied upon by the Department. When we come to the appeal of Akin Laboratories Pvt. Ltd., the assessee filed affidavits from doctors, users and stockists and also furnished clinical trial report from Government Ayurvedic Hospital, Hyderabad. The label of the product showing it as Ayurvedic medicine was also relied on. The Collector (Appeals) gave a finding that both the tests i.e. common parlance and ingredient tests are satisfied. The affidavit evidence was not rebutted by the Department by producing any contra evidence. As against the clear finding of the appellate Collector, the Tribunal merely commented that a few certificates given by a doctor or owner of a medical shop does not advance the case of the assessee. The Tribunal allowed the Revenuess appeal following the decision in Naturalle Health Products Pvt. Ltd. (Appellant in C.A. No. 2072 of 1996). 43. In our view, the Tribunal has completely misdirected itself in law and on facts by being influenced by the unimportant factors like the mention of similar names of goods in Martindale and patent of the same in USA and failed to take into account the relevant factors like the issue of licence to manufacture Ayurvedic drug under the Drugs Act, the popular understanding of the products, the law laid down by this Court in the cases referred to above and the circular issued by the Government of India in the light of Richardson Hindustan case. The Tribunal placed undue reliance on the definition of Ayurvedic medicament in Section 2(a) of the Drugs Act. In our opinion, all the products ought to be classified as Ayurvedic medicaments under sub-heading 3003.30 of the Central Excise Tariff. 44.
### Response:
1
### Explanation:
30. It isseen from the above circular that the Government have accepted two tests for determining the classification of the products claimed to be the Ayurvedic medicines and the statutory authorities were directed to keep this in view while deciding similar pending assessments of the type indicated in the circular and be finalised on the above basis. It is also seen from the circular that the aforesaid two tests have been upheld by this Court in the case of C.A.No. 2127 of 1998 - C.C.E. Hyderabad, vs. M/s. Richardson Ltd. Order dated 10.1.1999.Thus, it is seen that the CEGATs decision and the circular of the Board does not lay down any tests regarding the formulae of manufacture as per authoritative Ayurvedic textalready noticed, the Government have issued a circular on the basis of the representations received from the manufacturers of Ayurvedic preparations and the doubts in regard to the question whether the products claimed to be Ayurvedic medicines, are, in fact, so and whether they would merit classification under sub-heading 3003.30 of the Schedule to the Central Excise Tariff Act, 1985. The Government of India after examining the matter in the light of the parameters prescribed by the Tribunal in their Order passed in M/s. Richardson Hindustan Ltd. vs. C.C.E., Hyderabad which has been upheld by this Court in C.A.No. 2127 of 1998 have issued the circular clarifying the correct position in regard to the classification and reiterating the said two test. The argument of Mr. Raju Ramachandran, therefore, has no force and is liable to be rejected.From the above, it is clear that a patent Ayuvedic medicament could be one where all the ingredients find mention in the authoritative text books on Ayurveda, though the formula for preparation of the medicament is not in accordance with the formula given in those text books. It is not in dispute that all the ingredients are mentioned in the authoritative text books on Ayurveda. In fact, in the case of appellant in Civil Appeal No. 2072/1996, the products satisfy the definition in Section 2(h) of Drugs & Cosmetics Act as patent or proprietary Ayurvedic medicines also. Further, the manufacture of this medicament is being done under the Ayurvedic drug licence issued by competent authority.We are also of the opinion that when there is no definition of any kind in the relevant taxing statute, the articles enumerated in the tariff schedules must be construed as far as possible in their ordinary or popular sense, that is, how the common man and persons dealing with it understand it. If the customers and the practitioners in Ayurvedic medicine, the dealers and the licensing officials treat the products in question as Ayurvedic medicines and not as Allopathic medicines, that fact gives an indication that they are exclusively ayurvedic medicines or that they are used in Ayurvedic system of medicine, though it is a patented medicine. This is especially so when all the ingredients used as mentioned in the authoritative books on Ayurveda. As rightly contended by the counsel for the appellants, the essential character of the medicine and the primary function of the medicine is derived from the active ingredients contained therein and it has certainly a bearing on the determination of classification under the Central Excise Act. As held in Amruthanjan case, the mere fact that the ingredients are purified or added with some preservatives does not really alter their character.In our view, the Tribunal has completely misdirected itself in law and on facts by being influenced by the unimportant factors like the mention of similar names of goods in Martindale and patent of the same in USA and failed to take into account the relevant factors like the issue of licence to manufacture Ayurvedic drug under the Drugs Act, the popular understanding of the products, the law laid down by this Court in the cases referred to above and the circular issued by the Government of India in the light of Richardson Hindustan case. The Tribunal placed undue reliance on the definition of Ayurvedic medicament in Section 2(a) of the Drugs Act. In our opinion, all the products ought to be classified as Ayurvedic medicaments under sub-heading 3003.30 of the Central Excise Tariff.
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Reliance Petroleum Vs. Zaverchand Popatlal Sumaria | and 4 of the Land Acquisition (Companies) Rules as well as personal hearing under section 5A are mandatory and non-compliance of the same as factually found by the High Court cannot be cured and therefore, the High Court was justified in entertaining the case under Article 226 and quashing the proceedings. He also cited number of authorities in support of his submission. 10. We have carefully gone through the relevant records and considered the submissions both oral and written and we are of the view that on the facts which cannot be disputed, the High Court ought not have exercised its discretionary jurisdiction and quashed the notification, declaration and award under the Land Acquisition Act. 11. The facts which cannot be disputed are the following. The notification under section 4 dated 15.2.1993, which is the first step to initiate proceedings under the Land Acquisition Act, was issued on 11.3.1993. After the inquiry under section SA, (we proceed on the assumption that there was no strict compliance of the requirements) declaration under section 6 was published on 18.5.1994. Thereafter individual notices under section 9 were issued on 12.8.1994. In response to notices under section 9 claims were filed by the land owners including respondents Nos. 1 to 3 on 5.9.1994. Apart from that on 7.9.1994 a letter was addressed to the Land Acquisition Officer on behalf of the 89 individuals which included respondents 1 to 3 informing that the claims were filed on behalf of the 89. When the matter was pending before the Land Acquisition Officer and before an award was passed respondents Nos. 1 to 3 for themselves and on behalf of 89 persons addressed a letter on 25.10.1994 stating that they have no objection to the acquisition of land but they wanted only compensation as demanded therein. In fact they have given figures which ranged between 37500/- to 87000- per acre. However, the appellant company did not take advantage of that offer by responding to the same. Subsequently, on 12.12.1994 the Land Acquisition officer has passed the award and on the same date notices under section 12(2) were also issued to the individuals. It is claimed major portion of the land was taken possession of on 19.12.1994. It is, therefore, only on 20.12.1994 Special Civil Application No. 13525/94 was filed by respondents Nos. 1 to 3 on behalf of 89 persons challenging the Land Acquisition proceedings. 12. From the above facts which cannot be disputed as they were taken from records, it would be clear that respondents Nos. 1 to 3 (writ petitioners before the High Court) took their chance in the Award Proceedings and finding that the compensation as claimed by them was not given have moved the High Court. If really their intention was to challenge the acquisition as such they could have done immediately at least after the publication of declaration under section 6 or immediately after they received notices under section 9 of the Land Acquisition Act. This shows that the only object of the writ petitioners was to get the maximum price for the land acquired. No doubt they are entitled to the compensation as provided under the Land Acquisition Act. For that there is a separate procedure under the Act itself. As a matter of fact out of 19 individuals who are before us, represented by respondents Nos. 1 to 3, it is common ground 17 have already sought reference under section 18 of the Act claiming more compensation. Further, it is stated in the written submission filed on behalf of respondents Nos. 1 to 3 as under : "It may be pointed out that some of the land owners, as was stated by the counsel for the company, have entered into settlement with the company and have accepted the compensation. Evidently they will not be entitled to the benefit of the High Court judgment. However, it has been stated in a note given to the Court by the company that 19 persons owning 241.34 acres of the land sought to be acquired have not entered into any settlement with the company. The result would be that the Government would have no authority to take possession of these lands without fresh acquisition proceedings. It was stated on behalf of these respondents that the present market value of the land was about 7 lakhs per acre and therefore, the compensation for the said 241.34 acres would come to about Rs.17 crores. It was further stated on behalf of the respondents that if the company is willing to agree that these persons would be entitled to receive compensation according to the market value prevalent on the date of Supreme Courts judgment in this SLP, the respondents would be willing to accept the same." 13. Taking note of all these facts we have come to the conclusion that the High Court was not justified in entertaining the writ petition and also in exercising the discretionary jurisdiction to quash the 4(1) notifications section 6 declaration and award made under the Land Acquisition Act.14. In the view we take on the facts of the case, we do not think it necessary to discuss the question of law and to quote the cases cited by counsel on both sides.15. Notwithstanding the above, we feel that ends of justice would be met if we direct the appellant company to pay the enhanced compensation at the rate/rates paid to others who have accepted the same and withdrew from prosecuting the case in this Court, with interest @ 12% from 25.10.1994. If an affidavit is filed on behalf of the 19 persons accepting the above compensation in full quit within 8 weeks from this date, the same should be paid by the Company within 4 weeks from the date of filing of such affidavit. If the affidavit accepting the above compensation is not filed as above, then it will be taken that the 19 individuals are not accepting the compensation suggested, but desire to agitate the same in accordance with law. | 1[ds]13. Taking note of all these facts we have come to the conclusion that the High Court was not justified in entertaining the writ petition and also in exercising the discretionary jurisdiction to quash the 4(1) notifications section 6 declaration and award made under the Land Acquisition Act.14. In the view we take on the facts of the case, we do not think it necessary to discuss the question of law and to quote the cases cited by counsel on both sides.15. Notwithstanding the above, we feel that ends of justice would be met if we direct the appellant company to pay the enhanced compensation at the rate/rates paid to others who have accepted the same and withdrew from prosecuting the case in this Court, with interest @ 12% from 25.10.1994. If an affidavit is filed on behalf of the 19 persons accepting the above compensation in full quit within 8 weeks from this date, the same should be paid by the Company within 4 weeks from the date of filing of such affidavit. If the affidavit accepting the above compensation is not filed as above, then it will be taken that the 19 individuals are not accepting the compensation suggested, but desire to agitate the same in accordance with law. | 1 | 2,147 | 231 | ### 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:
and 4 of the Land Acquisition (Companies) Rules as well as personal hearing under section 5A are mandatory and non-compliance of the same as factually found by the High Court cannot be cured and therefore, the High Court was justified in entertaining the case under Article 226 and quashing the proceedings. He also cited number of authorities in support of his submission. 10. We have carefully gone through the relevant records and considered the submissions both oral and written and we are of the view that on the facts which cannot be disputed, the High Court ought not have exercised its discretionary jurisdiction and quashed the notification, declaration and award under the Land Acquisition Act. 11. The facts which cannot be disputed are the following. The notification under section 4 dated 15.2.1993, which is the first step to initiate proceedings under the Land Acquisition Act, was issued on 11.3.1993. After the inquiry under section SA, (we proceed on the assumption that there was no strict compliance of the requirements) declaration under section 6 was published on 18.5.1994. Thereafter individual notices under section 9 were issued on 12.8.1994. In response to notices under section 9 claims were filed by the land owners including respondents Nos. 1 to 3 on 5.9.1994. Apart from that on 7.9.1994 a letter was addressed to the Land Acquisition Officer on behalf of the 89 individuals which included respondents 1 to 3 informing that the claims were filed on behalf of the 89. When the matter was pending before the Land Acquisition Officer and before an award was passed respondents Nos. 1 to 3 for themselves and on behalf of 89 persons addressed a letter on 25.10.1994 stating that they have no objection to the acquisition of land but they wanted only compensation as demanded therein. In fact they have given figures which ranged between 37500/- to 87000- per acre. However, the appellant company did not take advantage of that offer by responding to the same. Subsequently, on 12.12.1994 the Land Acquisition officer has passed the award and on the same date notices under section 12(2) were also issued to the individuals. It is claimed major portion of the land was taken possession of on 19.12.1994. It is, therefore, only on 20.12.1994 Special Civil Application No. 13525/94 was filed by respondents Nos. 1 to 3 on behalf of 89 persons challenging the Land Acquisition proceedings. 12. From the above facts which cannot be disputed as they were taken from records, it would be clear that respondents Nos. 1 to 3 (writ petitioners before the High Court) took their chance in the Award Proceedings and finding that the compensation as claimed by them was not given have moved the High Court. If really their intention was to challenge the acquisition as such they could have done immediately at least after the publication of declaration under section 6 or immediately after they received notices under section 9 of the Land Acquisition Act. This shows that the only object of the writ petitioners was to get the maximum price for the land acquired. No doubt they are entitled to the compensation as provided under the Land Acquisition Act. For that there is a separate procedure under the Act itself. As a matter of fact out of 19 individuals who are before us, represented by respondents Nos. 1 to 3, it is common ground 17 have already sought reference under section 18 of the Act claiming more compensation. Further, it is stated in the written submission filed on behalf of respondents Nos. 1 to 3 as under : "It may be pointed out that some of the land owners, as was stated by the counsel for the company, have entered into settlement with the company and have accepted the compensation. Evidently they will not be entitled to the benefit of the High Court judgment. However, it has been stated in a note given to the Court by the company that 19 persons owning 241.34 acres of the land sought to be acquired have not entered into any settlement with the company. The result would be that the Government would have no authority to take possession of these lands without fresh acquisition proceedings. It was stated on behalf of these respondents that the present market value of the land was about 7 lakhs per acre and therefore, the compensation for the said 241.34 acres would come to about Rs.17 crores. It was further stated on behalf of the respondents that if the company is willing to agree that these persons would be entitled to receive compensation according to the market value prevalent on the date of Supreme Courts judgment in this SLP, the respondents would be willing to accept the same." 13. Taking note of all these facts we have come to the conclusion that the High Court was not justified in entertaining the writ petition and also in exercising the discretionary jurisdiction to quash the 4(1) notifications section 6 declaration and award made under the Land Acquisition Act.14. In the view we take on the facts of the case, we do not think it necessary to discuss the question of law and to quote the cases cited by counsel on both sides.15. Notwithstanding the above, we feel that ends of justice would be met if we direct the appellant company to pay the enhanced compensation at the rate/rates paid to others who have accepted the same and withdrew from prosecuting the case in this Court, with interest @ 12% from 25.10.1994. If an affidavit is filed on behalf of the 19 persons accepting the above compensation in full quit within 8 weeks from this date, the same should be paid by the Company within 4 weeks from the date of filing of such affidavit. If the affidavit accepting the above compensation is not filed as above, then it will be taken that the 19 individuals are not accepting the compensation suggested, but desire to agitate the same in accordance with law.
### Response:
1
### Explanation:
13. Taking note of all these facts we have come to the conclusion that the High Court was not justified in entertaining the writ petition and also in exercising the discretionary jurisdiction to quash the 4(1) notifications section 6 declaration and award made under the Land Acquisition Act.14. In the view we take on the facts of the case, we do not think it necessary to discuss the question of law and to quote the cases cited by counsel on both sides.15. Notwithstanding the above, we feel that ends of justice would be met if we direct the appellant company to pay the enhanced compensation at the rate/rates paid to others who have accepted the same and withdrew from prosecuting the case in this Court, with interest @ 12% from 25.10.1994. If an affidavit is filed on behalf of the 19 persons accepting the above compensation in full quit within 8 weeks from this date, the same should be paid by the Company within 4 weeks from the date of filing of such affidavit. If the affidavit accepting the above compensation is not filed as above, then it will be taken that the 19 individuals are not accepting the compensation suggested, but desire to agitate the same in accordance with law.
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M/s. Davecos Garments Factory & Another Vs. State of Rajasthan | Grover, J.1. This is an appeal from a judgment of the Rajasthan High Court in which the sole question for determination is whether the agreements which were executed between the appellant and the respondent fulfil the requirements of Article 299 of the Constitution.2. In a suit filed by the respondent against the appellant for recovery of Rs. 86,000 as damages for breach of contract on the basis of agreements which were executed by the Inspector-General of Police Rajasthan a preliminary issue was framed to the following effect:"Whether the agreements are not in accordance with Art. 299 of the Constitution of India and hence the suit is not maintainable?"The trial court held that the agreements complied with the provisions of the aforesaid Article. Its decision was upheld by the High Court where the matter was taken on the revisional side.3. Para 1 of the main agreement which was executed on March 22, 1960 was as follows:"An agreement made on 22nd day of March, 1960 between Messrs. Davecos Garments, Jaipur (hereinafter called the approved Contractor which expression shall, where the context so admits, be deemed to include his heirs, successors, executors and administrators) of the one part and the Governor of the State of Rajasthan (hereinafter called the Government which expression shall, where the context so admits be deemed to include his successors in office and assigns) of the other part." In Clause 4 (1) it was clearly provided that the payment was to be made by the Government through the Inspector-General of Police, Rajasthan, at the rate set forth in the schedule. In clause 3 (a) the Government agreed that if the contractor duly fabricated the contracted articles and complied with the terms and conditions of the contract the Government, through the Inspector General of Police, would pay to the contractor the amount payable for each and every consignment.The concluding portion of the agreement was as follows:"In witness whereof the parties hereto have set their hand on 22nd day of March, 1960.Signature of the approved contractor.AcceptedWitness: 1Witness: 2Sd.I. G. of Police,Rajasthan, Jaipur."4. Article 299 (1) of the Constitution provides that all contracts made in the exercise of the executive power of the Union or of a State shall be expressed to be made by the President or by the Governor of the State, as the case may be, and all such contracts and all assurances of property made in the exercise of that power shall be executed on behalf of the President or the Governor by such person and in such manner as he may direct or authorise. It is common ground that the agreement Annexure B was expressed to be made by the Governor of the State of Rajasthan who was to be called the "Government" in its other clauses and that the Inspector General of Police had been duly authorised to execute the same on his behalf. The sole objection taken was to the form of execution inasmuch as it was not stated in so many words that the Inspector General of Police had signed the agreement on behalf of the Governor. This gave rise to the contention which was pressed in the courts below and before us that all the requirements of Art. 299 of the Constitution were not satisfied.5. The present appeal stands conduced by the judgment of this court in Union of India v. A L. Rallia Ram, (1964) 3 SCR 164 = (AIR 1963 SC 1685 ), in which it was held that the letter of acceptance of the tender signed by the Chief Director of Purchases fulfilled all the requirements of Section 175 (3) of the Government of India Act, 1935. That section employed the same language as is to be found in Art 299 (1) of the Constitution. The Chief Director of Purchases had subscribed his signature in his official designation and had not stated in the description that the contract was executed on behalf of the Governor-General but the court found that on a fair reading of the contents of the letter in the light of the obligations undertaken thereunder it would be reasonable to hold that the contract was executed on behalf of the Governor-General. It was added that no rule made by the Governor-General had been placed before the court showing that in executing a contract for the sale of "war disposal goods" the officer authorised in that behalf must describe himself as signing on behalf of the Governor-General of India. There can be no manner of doubt that in the present case on a reading of Annexure B and in particular clauses 1 and 4, the agreement was expressed to be made by the Governor and was also executed on his behalf.6. The learned Additional District Judge and the High Court referred to Rule 255 of the General Finance and Account Rules which deal with the purchase of stores for use in the public service but it was rightly held that they did not govern the execution of contracts for the fabrication of garments. In the absence of any properly framed rule requiring the specific mention of the words "on behalf of the Governor" at the place where the authority authorised by the Governor to enter into the contract has to append his signature it is not possible to hold that the agreements in the present case did not fully comply with the requirement of Art 299 (i of the Constitution | 0[ds]5. The present appeal stands conduced by the judgment of this court in Union of India v. A L. Rallia Ram, (1964) 3 SCR 164 = (AIR 1963 SC 1685 ), in which it was held that the letter of acceptance of the tender signed by the Chief Director of Purchases fulfilled all the requirements of Section 175 (3) of the Government of India Act, 1935. That section employed the same language as is to be found in Art 299 (1) of the Constitution. The Chief Director of Purchases had subscribed his signature in his official designation and had not stated in the description that the contract was executed on behalf of thebut the court found that on a fair reading of the contents of the letter in the light of the obligations undertaken thereunder it would be reasonable to hold that the contract was executed on behalf of theIt was added that no rule made by thehad been placed before the court showing that in executing a contract for the sale of "war disposal goods" the officer authorised in that behalf must describe himself as signing on behalf of theof India. There can be no manner of doubt that in the present case on a reading of Annexure B and in particular clauses 1 and 4, the agreement was expressed to be made by the Governor and was also executed on his behalf.6. The learned Additional District Judge and the High Court referred to Rule 255 of the General Finance and Account Rules which deal with the purchase of stores for use in the public service but it was rightly held that they did not govern the execution of contracts for the fabrication of garments. In the absence of any properly framed rule requiring the specific mention of the words "on behalf of the Governor" at the place where the authority authorised by the Governor to enter into the contract has to append his signature it is not possible to hold that the agreements in the present case did not fully comply with the requirement of Art 299 (i of the Constitution | 0 | 987 | 379 | ### 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:
Grover, J.1. This is an appeal from a judgment of the Rajasthan High Court in which the sole question for determination is whether the agreements which were executed between the appellant and the respondent fulfil the requirements of Article 299 of the Constitution.2. In a suit filed by the respondent against the appellant for recovery of Rs. 86,000 as damages for breach of contract on the basis of agreements which were executed by the Inspector-General of Police Rajasthan a preliminary issue was framed to the following effect:"Whether the agreements are not in accordance with Art. 299 of the Constitution of India and hence the suit is not maintainable?"The trial court held that the agreements complied with the provisions of the aforesaid Article. Its decision was upheld by the High Court where the matter was taken on the revisional side.3. Para 1 of the main agreement which was executed on March 22, 1960 was as follows:"An agreement made on 22nd day of March, 1960 between Messrs. Davecos Garments, Jaipur (hereinafter called the approved Contractor which expression shall, where the context so admits, be deemed to include his heirs, successors, executors and administrators) of the one part and the Governor of the State of Rajasthan (hereinafter called the Government which expression shall, where the context so admits be deemed to include his successors in office and assigns) of the other part." In Clause 4 (1) it was clearly provided that the payment was to be made by the Government through the Inspector-General of Police, Rajasthan, at the rate set forth in the schedule. In clause 3 (a) the Government agreed that if the contractor duly fabricated the contracted articles and complied with the terms and conditions of the contract the Government, through the Inspector General of Police, would pay to the contractor the amount payable for each and every consignment.The concluding portion of the agreement was as follows:"In witness whereof the parties hereto have set their hand on 22nd day of March, 1960.Signature of the approved contractor.AcceptedWitness: 1Witness: 2Sd.I. G. of Police,Rajasthan, Jaipur."4. Article 299 (1) of the Constitution provides that all contracts made in the exercise of the executive power of the Union or of a State shall be expressed to be made by the President or by the Governor of the State, as the case may be, and all such contracts and all assurances of property made in the exercise of that power shall be executed on behalf of the President or the Governor by such person and in such manner as he may direct or authorise. It is common ground that the agreement Annexure B was expressed to be made by the Governor of the State of Rajasthan who was to be called the "Government" in its other clauses and that the Inspector General of Police had been duly authorised to execute the same on his behalf. The sole objection taken was to the form of execution inasmuch as it was not stated in so many words that the Inspector General of Police had signed the agreement on behalf of the Governor. This gave rise to the contention which was pressed in the courts below and before us that all the requirements of Art. 299 of the Constitution were not satisfied.5. The present appeal stands conduced by the judgment of this court in Union of India v. A L. Rallia Ram, (1964) 3 SCR 164 = (AIR 1963 SC 1685 ), in which it was held that the letter of acceptance of the tender signed by the Chief Director of Purchases fulfilled all the requirements of Section 175 (3) of the Government of India Act, 1935. That section employed the same language as is to be found in Art 299 (1) of the Constitution. The Chief Director of Purchases had subscribed his signature in his official designation and had not stated in the description that the contract was executed on behalf of the Governor-General but the court found that on a fair reading of the contents of the letter in the light of the obligations undertaken thereunder it would be reasonable to hold that the contract was executed on behalf of the Governor-General. It was added that no rule made by the Governor-General had been placed before the court showing that in executing a contract for the sale of "war disposal goods" the officer authorised in that behalf must describe himself as signing on behalf of the Governor-General of India. There can be no manner of doubt that in the present case on a reading of Annexure B and in particular clauses 1 and 4, the agreement was expressed to be made by the Governor and was also executed on his behalf.6. The learned Additional District Judge and the High Court referred to Rule 255 of the General Finance and Account Rules which deal with the purchase of stores for use in the public service but it was rightly held that they did not govern the execution of contracts for the fabrication of garments. In the absence of any properly framed rule requiring the specific mention of the words "on behalf of the Governor" at the place where the authority authorised by the Governor to enter into the contract has to append his signature it is not possible to hold that the agreements in the present case did not fully comply with the requirement of Art 299 (i of the Constitution
### Response:
0
### Explanation:
5. The present appeal stands conduced by the judgment of this court in Union of India v. A L. Rallia Ram, (1964) 3 SCR 164 = (AIR 1963 SC 1685 ), in which it was held that the letter of acceptance of the tender signed by the Chief Director of Purchases fulfilled all the requirements of Section 175 (3) of the Government of India Act, 1935. That section employed the same language as is to be found in Art 299 (1) of the Constitution. The Chief Director of Purchases had subscribed his signature in his official designation and had not stated in the description that the contract was executed on behalf of thebut the court found that on a fair reading of the contents of the letter in the light of the obligations undertaken thereunder it would be reasonable to hold that the contract was executed on behalf of theIt was added that no rule made by thehad been placed before the court showing that in executing a contract for the sale of "war disposal goods" the officer authorised in that behalf must describe himself as signing on behalf of theof India. There can be no manner of doubt that in the present case on a reading of Annexure B and in particular clauses 1 and 4, the agreement was expressed to be made by the Governor and was also executed on his behalf.6. The learned Additional District Judge and the High Court referred to Rule 255 of the General Finance and Account Rules which deal with the purchase of stores for use in the public service but it was rightly held that they did not govern the execution of contracts for the fabrication of garments. In the absence of any properly framed rule requiring the specific mention of the words "on behalf of the Governor" at the place where the authority authorised by the Governor to enter into the contract has to append his signature it is not possible to hold that the agreements in the present case did not fully comply with the requirement of Art 299 (i of the Constitution
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Sk. Amir Vs. The State Of Maharashtra | set aside in appeal by the High Court of Bombay (Nagpur Bench) which held that the prosecution had proved conclusively that the accused had stocked the drug for sale. The High Court sentenced the appellant to the minimum sentence of one years imprisonment, prescribed by the Act. This appeal by special leave is directed against the judgment of the High Court.5. Under Section 3 (b) (i) of the Drugs and Cosmetics Act 1940, drug includes "all medicines for internal or external use of human beings or animals and all substances intended to be used for or in the diagnosis, treatment, mitigation or prevention of disease in human beings or animals Section 17 by its seven clauses defines misbranded drugs and cl. (e) thereof which is here relevant says that a drug shall be deemed to be misbranded if it is not labelled in the prescribed manner. Section 18(a)(ii) provides that "no person shall himself or by any other person on his behalf manufacturer for sale, or sell or stock or exhibit for sale or distribute any misbranded drug" - Section 18 (c) provides that no person shall "manufacture for sale, or sell, or stock or exhibit for sale or distribute any drug or cosmetic except under and in accordance with the conditions of, a licence issued for such purpose" - Section 27 (a) provides that whoever himself or by any other person on his behalf manufactures for sale, sells, stocks or exhibits for sale or distributes any drug (i) deemed to be misbranded under clauses (a), (b), (c), (d), (f) or (g) of Section 17, or (ii) without a valid licence as required under Section 18 (c) shall be punishable with imprisonment, for a term which shall not be less than one year but which may extend to ten years and shall also be liable to fine. Provided that the Court may for any special reasons to be recorded in writing impose a sentence of imprisonment of less than one year.6. It is common ground that the substance which the appellant was found carrying in a drug and a misbranded drug and that he had no valid licence to stock it for sale. Before the High Court and the lower Courts it was also common ground that the appellant had stocked the drug. The controversy was limited to the question whether the appellant had stocked the drug for sale. The trial Court and the High Court relied upon various circumstances particularly the circumstance that the appellant was found in possession of as many as 95,000 capsules in support of their conclusion that the appellant had stocked the drug for sale. The Sessions Court on the other hand, thought that there was no reliable evidence to show that the appellant had stocked the drug for sale.7. Before us the argument has taken a different shape. It is urged that at the highest, the drug was found on the person of the appellant, which is not enough to establish that the appellant had stocked the drug.8. We see no substance in this argument. Section 18 (a) of the Act which lays down an injunction that no person shall stock for sale a drug of certain description, Section 18 (c) which says that no person shall stock for sale a drug except in accordance with the conditions of a licence issued for such purposes and Section 27(a) which prescribes a penalty for a person who stocks for sale a misbranded drug or a drug in respect of which no valid licence is held, do not use the word stock in any technical sense. The plain meaning of the word stock in these provisions of the Act is to keep and the injunction of the law means no more than this that no person shall keep for sale a misbranded drug or a drug in respect of which a valid licence is not held. It is not necessary that the drug should be stored in a place in order that it can be said to have been stocked for sale. If anyone keeps or carries a drug on his person in contravention of the terms of the Act and it is proved that the drug is kept or carried for sale the act must fall within the mischief of the law under consideration. In busy commercial cities, the streets are crowde with mobile hawkers who display their wares on their person. It is neither sound commonsense nor sound law to say that such wares are not stocked for sale. What is intended for sale can as such be stocked on ones person as in a shop or in a godown. Keeping for sale is of the essence of the matter not the mode and the manner of keeping. To keep for sale is to stock for sale. The Shorter Oxford English Dictionary (Third Edition p. 2025) gives the meaning of the word stock as "To lay up in store : to form a stock or supply of (a commodity)...To keep (goods) in stocks for sale".9. The judgment of the Allahabad High Court in Dharma Deo Gupta v. State. AIR 1958 All 865 = (1958 Cri L. L. 1453) on which the appellant relies deals with a different point and lays down that mere stocking of goods, unless it is for the purpose of sale, does not amount to an offence within the meaning of Section 18 of the Drugs and Cosmetics Act. It was found in that case that the accused had to stock certain ampules of injection under the terms of a contract between him and the Government of India.10. The large quantity of 95,000 capsules found in the possession of the appellant leves no doubt that he had stocked or kept the drug for sale. It could not have been meant for his personal use and his defence that he had received the parcel on behalf of another person, not knowing what it contained, was rightly rejected by all the three courts. | 0[ds]8. We see no substance in this argument. Section 18 (a) of the Act which lays down an injunction that no person shall stock for sale a drug of certain description, Section 18 (c) which says that no person shall stock for sale a drug except in accordance with the conditions of a licence issued for such purposes and Section 27(a) which prescribes a penalty for a person who stocks for sale a misbranded drug or a drug in respect of which no valid licence is held, do not use the word stock in any technical sense. The plain meaning of the word stock in these provisions of the Act is to keep and the injunction of the law means no more than this that no person shall keep for sale a misbranded drug or a drug in respect of which a valid licence is not held. It is not necessary that the drug should be stored in a place in order that it can be said to have been stocked for sale. If anyone keeps or carries a drug on his person in contravention of the terms of the Act and it is proved that the drug is kept or carried for sale the act must fall within the mischief of the law under consideration. In busy commercial cities, the streets are crowde with mobile hawkers who display their wares on their person. It is neither sound commonsense nor sound law to say that such wares are not stocked for sale. What is intended for sale can as such be stocked on ones person as in a shop or in a godown. Keeping for sale is of the essence of the matter not the mode and the manner of keeping. To keep for sale is to stock for sale. The Shorter Oxford English Dictionary (Third Edition p. 2025) gives the meaning of the word stock as "To lay up in store : to form a stock or supply of (a commodity)...To keep (goods) in stocks for sale".The large quantity of 95,000 capsules found in the possession of the appellant leves no doubt that he had stocked or kept the drug for sale. It could not have been meant for his personal use and his defence that he had received the parcel on behalf of another person, not knowing what it contained, was rightly rejected by all the three courts. | 0 | 1,415 | 440 | ### 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:
set aside in appeal by the High Court of Bombay (Nagpur Bench) which held that the prosecution had proved conclusively that the accused had stocked the drug for sale. The High Court sentenced the appellant to the minimum sentence of one years imprisonment, prescribed by the Act. This appeal by special leave is directed against the judgment of the High Court.5. Under Section 3 (b) (i) of the Drugs and Cosmetics Act 1940, drug includes "all medicines for internal or external use of human beings or animals and all substances intended to be used for or in the diagnosis, treatment, mitigation or prevention of disease in human beings or animals Section 17 by its seven clauses defines misbranded drugs and cl. (e) thereof which is here relevant says that a drug shall be deemed to be misbranded if it is not labelled in the prescribed manner. Section 18(a)(ii) provides that "no person shall himself or by any other person on his behalf manufacturer for sale, or sell or stock or exhibit for sale or distribute any misbranded drug" - Section 18 (c) provides that no person shall "manufacture for sale, or sell, or stock or exhibit for sale or distribute any drug or cosmetic except under and in accordance with the conditions of, a licence issued for such purpose" - Section 27 (a) provides that whoever himself or by any other person on his behalf manufactures for sale, sells, stocks or exhibits for sale or distributes any drug (i) deemed to be misbranded under clauses (a), (b), (c), (d), (f) or (g) of Section 17, or (ii) without a valid licence as required under Section 18 (c) shall be punishable with imprisonment, for a term which shall not be less than one year but which may extend to ten years and shall also be liable to fine. Provided that the Court may for any special reasons to be recorded in writing impose a sentence of imprisonment of less than one year.6. It is common ground that the substance which the appellant was found carrying in a drug and a misbranded drug and that he had no valid licence to stock it for sale. Before the High Court and the lower Courts it was also common ground that the appellant had stocked the drug. The controversy was limited to the question whether the appellant had stocked the drug for sale. The trial Court and the High Court relied upon various circumstances particularly the circumstance that the appellant was found in possession of as many as 95,000 capsules in support of their conclusion that the appellant had stocked the drug for sale. The Sessions Court on the other hand, thought that there was no reliable evidence to show that the appellant had stocked the drug for sale.7. Before us the argument has taken a different shape. It is urged that at the highest, the drug was found on the person of the appellant, which is not enough to establish that the appellant had stocked the drug.8. We see no substance in this argument. Section 18 (a) of the Act which lays down an injunction that no person shall stock for sale a drug of certain description, Section 18 (c) which says that no person shall stock for sale a drug except in accordance with the conditions of a licence issued for such purposes and Section 27(a) which prescribes a penalty for a person who stocks for sale a misbranded drug or a drug in respect of which no valid licence is held, do not use the word stock in any technical sense. The plain meaning of the word stock in these provisions of the Act is to keep and the injunction of the law means no more than this that no person shall keep for sale a misbranded drug or a drug in respect of which a valid licence is not held. It is not necessary that the drug should be stored in a place in order that it can be said to have been stocked for sale. If anyone keeps or carries a drug on his person in contravention of the terms of the Act and it is proved that the drug is kept or carried for sale the act must fall within the mischief of the law under consideration. In busy commercial cities, the streets are crowde with mobile hawkers who display their wares on their person. It is neither sound commonsense nor sound law to say that such wares are not stocked for sale. What is intended for sale can as such be stocked on ones person as in a shop or in a godown. Keeping for sale is of the essence of the matter not the mode and the manner of keeping. To keep for sale is to stock for sale. The Shorter Oxford English Dictionary (Third Edition p. 2025) gives the meaning of the word stock as "To lay up in store : to form a stock or supply of (a commodity)...To keep (goods) in stocks for sale".9. The judgment of the Allahabad High Court in Dharma Deo Gupta v. State. AIR 1958 All 865 = (1958 Cri L. L. 1453) on which the appellant relies deals with a different point and lays down that mere stocking of goods, unless it is for the purpose of sale, does not amount to an offence within the meaning of Section 18 of the Drugs and Cosmetics Act. It was found in that case that the accused had to stock certain ampules of injection under the terms of a contract between him and the Government of India.10. The large quantity of 95,000 capsules found in the possession of the appellant leves no doubt that he had stocked or kept the drug for sale. It could not have been meant for his personal use and his defence that he had received the parcel on behalf of another person, not knowing what it contained, was rightly rejected by all the three courts.
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0
### Explanation:
8. We see no substance in this argument. Section 18 (a) of the Act which lays down an injunction that no person shall stock for sale a drug of certain description, Section 18 (c) which says that no person shall stock for sale a drug except in accordance with the conditions of a licence issued for such purposes and Section 27(a) which prescribes a penalty for a person who stocks for sale a misbranded drug or a drug in respect of which no valid licence is held, do not use the word stock in any technical sense. The plain meaning of the word stock in these provisions of the Act is to keep and the injunction of the law means no more than this that no person shall keep for sale a misbranded drug or a drug in respect of which a valid licence is not held. It is not necessary that the drug should be stored in a place in order that it can be said to have been stocked for sale. If anyone keeps or carries a drug on his person in contravention of the terms of the Act and it is proved that the drug is kept or carried for sale the act must fall within the mischief of the law under consideration. In busy commercial cities, the streets are crowde with mobile hawkers who display their wares on their person. It is neither sound commonsense nor sound law to say that such wares are not stocked for sale. What is intended for sale can as such be stocked on ones person as in a shop or in a godown. Keeping for sale is of the essence of the matter not the mode and the manner of keeping. To keep for sale is to stock for sale. The Shorter Oxford English Dictionary (Third Edition p. 2025) gives the meaning of the word stock as "To lay up in store : to form a stock or supply of (a commodity)...To keep (goods) in stocks for sale".The large quantity of 95,000 capsules found in the possession of the appellant leves no doubt that he had stocked or kept the drug for sale. It could not have been meant for his personal use and his defence that he had received the parcel on behalf of another person, not knowing what it contained, was rightly rejected by all the three courts.
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Bandaru Ramesh Vs. State of Andhra Pradesh | 380 and 411 IPC, and on hearing on sentence, sentenced him to imprisonment for life and directed to pay fine of Rs. 200/- in default one months simple imprisonment (under Section 302 IPC), rigorous imprisonment for a period of five years and to pay a fine of Rs. 200/- in default one months simple imprisonment (under Section 380 IPC), and fine of Rs. 100/- in default fifteen days simple imprisonment (under Section 411 IPC).7. Aggrieved by the judgment and order dated 19.04.2005, passed by the First Additional Metropolitan Sessions Judge, Hyderabad, in Sessions Case No. 104 of 2004 against the convict as above, he preferred appeal before the High Court, which was dismissed by the impugned order by said Court. Hence this appeal through special leave. 8. As is evident from the above facts, it is a case based on circumstantial evidence. There is no eye witness of commission of murder. Before further discussion, we think it relevant to mention here the ante mortem injuries found on the dead body of the deceased recorded by PW-7 Dr. P. Vidya Sagar at the time of autopsy. The same are being reproduced below: - "(1) A horizontally placed ante mortem ligature mark of 32 cms length and 2 to ½ cm variable width present all around the lower part of the neck below the thyroid cartilage.(2) The mark is 6 cm below the right mastoid 8 cm below the right ear, 8 cm below the right angle of the jaw. 8 cm below the chin on extension of the neck, 9 cm above the supra sterna notch. 6 cm below the left angle of the jaw. 6 cm below the left ear and 7 cm below the left nastero.(3) multiple abrasions of 0.25 x 0.25 cm present 2 cm below the ligature mark on the front side.(4) A ligature mark of 7 cm length and 2 cm width extending from the midline of front of the neck and 1 cm below the above ligature mark.(5) The ligature mark is reddish brown and parchmentised.(6) Both the borders of the mark abraded.(7) The underlying subcutaneous tissues contused.(8) The inner side of both the lips contused." 9. In the opinion of the Medical Officer (PW-7), the deceased died due to asphyxia secondary to ligature strangulation. From the above medical evidence on record it is established that the deceased died homicidal death. 10. Now, we have to examine whether the prosecution has successfully proved the charge as held by the courts below that the appellant committed murder of the deceased and also committed theft of cash and jewellery, and also as to whether the same were retained and recovered from him. Following are the seven circumstances against the appellant which are found proved from the evidence on record: - (i) The appellant came to the house of the deceased on 01.09.2001 and stayed there in the intervening night of 01.09.2001 and 02.09.2001.(ii) The deceased was last seen in the house in the company of the appellant in the fateful night.(iii) On the next morning, when PW-1 B. Laxmi Bai enquired about the deceased, the appellant misled her by telling that he had gone to Paan shop.(iv) In the afternoon keys of the house were left with the appellant, by B. Laxmi Bai (PW-1).(v) When PW-1 returned at 6.30 p.m., she found that the appellant had left the house with keys.(vi) After the matter was reported to police, at 7.30 p.m. police came and broke open the door of the house and the dead body of Rajnikanth (deceased) was found under the cot covered with a blanket, and cash and ornaments were also missing from the house.(vii) After the appellant was arrested, recovery of major part of cash and ornaments was made at his instance. 11. Taking the above established circumstances together, we agree with the courts below that the chain of circumstances as against the appellant, is complete to prove the charge of offences punishable under Sections 302, 380 and 411 IPC. 12. Shri S.N. Bhat, learned counsel for the appellant, argued that had the appellant committed the murder or theft he would have run away from the house, but he remained in the house till 10.00 a.m. when PW-1 B. Laxmi Bai came back after purchasing the vegetables, and made search with her till noon. It is further argued that it has come on the record as stated by PW-1 B. Laxmi Bai that the deceased did not enjoy cordial relations with his real brother who used to live separately, as such, commission of murder by a third person cannot be ruled out. We have considered the contentions of learned counsel for the appellant. In our opinion, had the appellant not misled PW-1 B. Laxmi Bai that Rajnikanth (deceased) had gone to Paan shop, the arguments advanced on behalf of the appellant could have been accepted to create a reasonable doubt in the prosecution story. But misleading PW-1 and pretending to search the deceased with her, thereafter in the afternoon leaving the house with the keys, and recoveries made at his instance, makes easier for us to read the circumstances enumerated above against the appellant. As such, we do not find any break in chain of circumstances and there is no reason to disagree with the view taken by the courts below. 13. Shri Bhat also drew our attention to the case of Hanumant Govind Nargundkar and another v. State of Madhya Pradesh, AIR 1952 SC 343 , and it is submitted that in the case of circumstantial evidence, the circumstances from which conclusion of guilt is drawn should not only be established but should be consistent only with the hypothesis of guilt of the accused. We have carefully gone through the evidence on record, and we have no hesitation in holding that all the circumstances are consistently pointing out at the appellant, and none else, as such, the case of Hanumant Govind (supra) is of little help to the appellant in the present case. | 0[ds]8. As is evident from the above facts, it is a case based on circumstantial evidence. There is no eye witness of commission of murder. Before further discussion, we think it relevant to mention here the ante mortem injuries found on the dead body of the deceased recorded byDr. P. Vidya Sagar at the time of autopsy.In the opinion of the Medical Officerthe deceased died due to asphyxia secondary to ligature strangulation. From the above medical evidence on record it is established that the deceased died homicidal death.Taking the above established circumstances together, we agree with the courts below that the chain of circumstances as against the appellant, is complete to prove the charge of offences punishable under Sections 302, 380 and 411our opinion, had the appellant not misledB. Laxmi Bai that Rajnikanth (deceased) had gone to Paan shop, the arguments advanced on behalf of the appellant could have been accepted to create a reasonable doubt in the prosecution story. But misleadingand pretending to search the deceased with her, thereafter in the afternoon leaving the house with the keys, and recoveries made at his instance, makes easier for us to read the circumstances enumerated above against the appellant. As such, we do not find any break in chain of circumstances and there is no reason to disagree with the view taken by the courtshave carefully gone through the evidence on record, and we have no hesitation in holding that all the circumstances are consistently pointing out at the appellant, and none else, as such, the case of Hanumant Govind (supra) is of little help to the appellant in the present case. | 0 | 1,935 | 303 | ### Instruction:
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380 and 411 IPC, and on hearing on sentence, sentenced him to imprisonment for life and directed to pay fine of Rs. 200/- in default one months simple imprisonment (under Section 302 IPC), rigorous imprisonment for a period of five years and to pay a fine of Rs. 200/- in default one months simple imprisonment (under Section 380 IPC), and fine of Rs. 100/- in default fifteen days simple imprisonment (under Section 411 IPC).7. Aggrieved by the judgment and order dated 19.04.2005, passed by the First Additional Metropolitan Sessions Judge, Hyderabad, in Sessions Case No. 104 of 2004 against the convict as above, he preferred appeal before the High Court, which was dismissed by the impugned order by said Court. Hence this appeal through special leave. 8. As is evident from the above facts, it is a case based on circumstantial evidence. There is no eye witness of commission of murder. Before further discussion, we think it relevant to mention here the ante mortem injuries found on the dead body of the deceased recorded by PW-7 Dr. P. Vidya Sagar at the time of autopsy. The same are being reproduced below: - "(1) A horizontally placed ante mortem ligature mark of 32 cms length and 2 to ½ cm variable width present all around the lower part of the neck below the thyroid cartilage.(2) The mark is 6 cm below the right mastoid 8 cm below the right ear, 8 cm below the right angle of the jaw. 8 cm below the chin on extension of the neck, 9 cm above the supra sterna notch. 6 cm below the left angle of the jaw. 6 cm below the left ear and 7 cm below the left nastero.(3) multiple abrasions of 0.25 x 0.25 cm present 2 cm below the ligature mark on the front side.(4) A ligature mark of 7 cm length and 2 cm width extending from the midline of front of the neck and 1 cm below the above ligature mark.(5) The ligature mark is reddish brown and parchmentised.(6) Both the borders of the mark abraded.(7) The underlying subcutaneous tissues contused.(8) The inner side of both the lips contused." 9. In the opinion of the Medical Officer (PW-7), the deceased died due to asphyxia secondary to ligature strangulation. From the above medical evidence on record it is established that the deceased died homicidal death. 10. Now, we have to examine whether the prosecution has successfully proved the charge as held by the courts below that the appellant committed murder of the deceased and also committed theft of cash and jewellery, and also as to whether the same were retained and recovered from him. Following are the seven circumstances against the appellant which are found proved from the evidence on record: - (i) The appellant came to the house of the deceased on 01.09.2001 and stayed there in the intervening night of 01.09.2001 and 02.09.2001.(ii) The deceased was last seen in the house in the company of the appellant in the fateful night.(iii) On the next morning, when PW-1 B. Laxmi Bai enquired about the deceased, the appellant misled her by telling that he had gone to Paan shop.(iv) In the afternoon keys of the house were left with the appellant, by B. Laxmi Bai (PW-1).(v) When PW-1 returned at 6.30 p.m., she found that the appellant had left the house with keys.(vi) After the matter was reported to police, at 7.30 p.m. police came and broke open the door of the house and the dead body of Rajnikanth (deceased) was found under the cot covered with a blanket, and cash and ornaments were also missing from the house.(vii) After the appellant was arrested, recovery of major part of cash and ornaments was made at his instance. 11. Taking the above established circumstances together, we agree with the courts below that the chain of circumstances as against the appellant, is complete to prove the charge of offences punishable under Sections 302, 380 and 411 IPC. 12. Shri S.N. Bhat, learned counsel for the appellant, argued that had the appellant committed the murder or theft he would have run away from the house, but he remained in the house till 10.00 a.m. when PW-1 B. Laxmi Bai came back after purchasing the vegetables, and made search with her till noon. It is further argued that it has come on the record as stated by PW-1 B. Laxmi Bai that the deceased did not enjoy cordial relations with his real brother who used to live separately, as such, commission of murder by a third person cannot be ruled out. We have considered the contentions of learned counsel for the appellant. In our opinion, had the appellant not misled PW-1 B. Laxmi Bai that Rajnikanth (deceased) had gone to Paan shop, the arguments advanced on behalf of the appellant could have been accepted to create a reasonable doubt in the prosecution story. But misleading PW-1 and pretending to search the deceased with her, thereafter in the afternoon leaving the house with the keys, and recoveries made at his instance, makes easier for us to read the circumstances enumerated above against the appellant. As such, we do not find any break in chain of circumstances and there is no reason to disagree with the view taken by the courts below. 13. Shri Bhat also drew our attention to the case of Hanumant Govind Nargundkar and another v. State of Madhya Pradesh, AIR 1952 SC 343 , and it is submitted that in the case of circumstantial evidence, the circumstances from which conclusion of guilt is drawn should not only be established but should be consistent only with the hypothesis of guilt of the accused. We have carefully gone through the evidence on record, and we have no hesitation in holding that all the circumstances are consistently pointing out at the appellant, and none else, as such, the case of Hanumant Govind (supra) is of little help to the appellant in the present case.
### Response:
0
### Explanation:
8. As is evident from the above facts, it is a case based on circumstantial evidence. There is no eye witness of commission of murder. Before further discussion, we think it relevant to mention here the ante mortem injuries found on the dead body of the deceased recorded byDr. P. Vidya Sagar at the time of autopsy.In the opinion of the Medical Officerthe deceased died due to asphyxia secondary to ligature strangulation. From the above medical evidence on record it is established that the deceased died homicidal death.Taking the above established circumstances together, we agree with the courts below that the chain of circumstances as against the appellant, is complete to prove the charge of offences punishable under Sections 302, 380 and 411our opinion, had the appellant not misledB. Laxmi Bai that Rajnikanth (deceased) had gone to Paan shop, the arguments advanced on behalf of the appellant could have been accepted to create a reasonable doubt in the prosecution story. But misleadingand pretending to search the deceased with her, thereafter in the afternoon leaving the house with the keys, and recoveries made at his instance, makes easier for us to read the circumstances enumerated above against the appellant. As such, we do not find any break in chain of circumstances and there is no reason to disagree with the view taken by the courtshave carefully gone through the evidence on record, and we have no hesitation in holding that all the circumstances are consistently pointing out at the appellant, and none else, as such, the case of Hanumant Govind (supra) is of little help to the appellant in the present case.
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Srinivasavardacharur And Ors Vs. Gopala Menon And Ors | per cent compound interest calculated with quarterly rests was certainly excessive. Taking note of several decisions of the Madras High Court to which we shall presently refer, the learned fudges thought that the rate of interest to be allowed was 10 per cent compound interest with yearly rests.8. It is difficult to predicate of any rate of interest as being excessive divorced from the circumstances of the case unless the rate fixed is so high us to he suggestive of an unfair transaction on the face of things. It is not for us to speculate as to why the Legislature of the State of Madras proceeded in such a round about way in making amendments to the Usurious Loans Act of 1918 for the purpose of giving relief to borrowers when it is well known that at or about the time of the Madras amendment the Legislatures of other States in India had fixed certain rates as being the maximum beyond which the Courts of law were not competent to go. So far as we are aware difference was made in the treatment of unsecured loans and secured loans and even in the case of the former the rate allowed was not to exceed 12 per cent simple in most of the States. With regard to the rate of interest allowed by the Madras High Court after 1937 we find that in Venkatarao v. Venkataratnam, AIR 1952 Mad 872 , a bench consisting of Govinda Menon and Ramaswami, JJ. observed,"that anything above 12 per cent per annum simple interest is excessive, considering the nature of transaction in this State."There the suit was on a mortgage which provided for payment of interest of 121/2 per cent per mensem with annual rests. In Sri Balasaraswathi Ltd., Tirunelveli v. Paramaswara Aiyar, AIR 1957 Mad 122 , a Division Bench consisting of Rajamannar, C. J. and Panchapakesa Ayyar, J. observed (p. 129)"in normal cases where the security is ample to cover the loan and there is no danger at all to the principal and interest the Court will hold more than 12 per cent simple interest to be excessive, as held in AIR Madras and by us in A. S. 348 and 361 of 1948".According to the learned Judges"Where the security is not sound 10 per cent compound interest can be allowed as in A.l.R. 1954 Madras 764".In the result the learned Judges only allowed simple interest at 12 per cent per annum. In the instant cases the learned Judges in appeal also referred to a judgment of Subba Rao, J. (as he then was) in C.S. 163 of 1949 as containing an observation that the dictum in AIR 1952 Mad 872, that "anything above 12 per cent simple interest was excessive would not be taken as a principle of law applicable to all cases irrespective of the circumstances obtaining at the time of the transaction". That transaction also related to Dhanakoti Ammal-the original debtor in this case and Subba Rao, J. (as he then was) reduced the rate of interest from 15 per cent compound interest to 12 per cent per annum simple. We have not had the benefit of reading the judgment of his Lordship, but we take it that the result of it is as indicated in the judgment in appeal before us.9. It appears to us, therefore, that in the opinion of a member of Judges of the Madras High Court who were cognizant of the state of affairs prevailing in the State interest beyond the rate of 12 per cent per annum simple would be considered excessive by Courts of law where the security was not inadequate and the risk run by the creditor was not abnormal. There can be no dispute that interest payable at the rate of 10 per cent compoundable annually over a number of years would be more in the interest of the creditor than 12 per cent per annum simple for the same period. In our opinion the learned Judges of the Division Bench of the Madras High Court were right in holding that 10 per cent compound interest with yearly rests would meet the justice of the case. The security was not inadequate and the threat of suit by Alavandar in view of the fact that his earlier suit which had been taken. in appeal to the Madras High Court and subsequently lost, was never regarded seriously. This is corroborated by the fact that even after the institution of that suit in 1937 the appellant before us advanced further sums of money to Dhanakoti Ammal at the same rate of interest as before. If he had thought that his security was put in jeopardy by the institution of the suit he would have been careful not to advance any further amounts and would in any case have insisted on the rate of interest being higher than that provided for in the earlier mortgages.10. In our opinion the division bench of the Madras High Court made a correct assessment of the situation and their pronouncement with regard to the rate of interest prior to the date of the suit ought not to be disturbed.11. We also find no reason to interfere with the scaling down of the rate of interest to 6 per cent from the date of the filing of the suit. Although the reasons are not indicated, it seems fairly plain that their Lordships were using their discretion as regards interest pendente lite. We cannot overlook the fact that the mortgages were executed as far back as 1936 and 1938 that the creditor who had waited till 1950 for the institution of the suit would, in any event, get interest substantially exceeding the principal amount of the loans. In this view of things we are not prepared to interfere with the exercise of the discretion exercised by the learned Judges of the Madras High Court even though they have given no reasons sons for the reduction of rate of interest pendente life. | 0[ds]5. The net result of the above seems to be that the Court must go back to the date of the original transaction and form an opinion as to the rate of interest which would be reasonable afterthe value of the security offered;(b) the financial condition of the debtor including the result of any prior transaction(c) the known or probable risks in getting repayment;(d) whether compound interest was provided for and if so the frequency of the period of calculation of interest for being added to the principal amount of the loan.It is difficult to predicate of any rate of interest as being excessive divorced from the circumstances of the case unless the rate fixed is so high us to he suggestive of an unfair transaction on the face offar as we are aware difference was made in the treatment of unsecured loans and secured loans and even in the case of the former the rate allowed was not to exceed 12 per cent simple in most of the States. With regard to the rate of interest allowed by the Madras High Court after 1937 we find that in Venkatarao v. Venkataratnam, AIR 1952 Mad 872 , a bench consisting of Govinda Menon and Ramaswami, JJ.anything above 12 per cent per annum simple interest is excessive, considering the nature of transaction in thisthe suit was on a mortgage which provided for payment of interest of 121/2 per cent per mensem with annual rests. In Sri Balasaraswathi Ltd., Tirunelveli v. Paramaswara Aiyar, AIR 1957 Mad 122 , a Division Bench consisting of Rajamannar, C. J. and Panchapakesa Ayyar, J. observed (p.normal cases where the security is ample to cover the loan and there is no danger at all to the principal and interest the Court will hold more than 12 per cent simple interest to be excessive, as held in AIR Madras and by us in A. S. 348 and 361 ofto the learnedthe security is not sound 10 per cent compound interest can be allowed as in A.l.R. 1954 Madrasthe result the learned Judges only allowed simple interest at 12 per cent per annum. In the instant cases the learned Judges in appeal also referred to a judgment of Subba Rao, J. (as he then was) in C.S. 163 of 1949 as containing an observation that the dictum in AIR 1952 Mad 872, that "anything above 12 per cent simple interest was excessive would not be taken as a principle of law applicable to all cases irrespective of the circumstances obtaining at the time of the transaction". That transaction also related to Dhanakotioriginal debtor in this case and Subba Rao, J. (as he then was) reduced the rate of interest from 15 per cent compound interest to 12 per cent per annum simple. We have not had the benefit of reading the judgment of his Lordship, but we take it that the result of it is as indicated in the judgment in appeal before us.9. It appears to us, therefore, that in the opinion of a member of Judges of the Madras High Court who were cognizant of the state of affairs prevailing in the State interest beyond the rate of 12 per cent per annum simple would be considered excessive by Courts of law where the security was not inadequate and the risk run by the creditor was not abnormal. There can be no dispute that interest payable at the rate of 10 per cent compoundable annually over a number of years would be more in the interest of the creditor than 12 per cent per annum simple for the same period. In our opinion the learned Judges of the Division Bench of the Madras High Court were right in holding that 10 per cent compound interest with yearly rests would meet the justice of the case. The security was not inadequate and the threat of suit by Alavandar in view of the fact that his earlier suit which had been taken. in appeal to the Madras High Court and subsequently lost, was never regarded seriously. This is corroborated by the fact that even after the institution of that suit in 1937 the appellant before us advanced further sums of money to Dhanakoti Ammal at the same rate of interest as before. If he had thought that his security was put in jeopardy by the institution of the suit he would have been careful not to advance any further amounts and would in any case have insisted on the rate of interest being higher than that provided for in the earlier mortgages.10. In our opinion the division bench of the Madras High Court made a correct assessment of the situation and their pronouncement with regard to the rate of interest prior to the date of the suit ought not to be disturbed.11. We also find no reason to interfere with the scaling down of the rate of interest to 6 per cent from the date of the filing of the suit. Although the reasons are not indicated, it seems fairly plain that their Lordships were using their discretion as regards interest pendente lite. We cannot overlook the fact that the mortgages were executed as far back as 1936 and 1938 that the creditor who had waited till 1950 for the institution of the suit would, in any event, get interest substantially exceeding the principal amount of the loans. In this view of things we are not prepared to interfere with the exercise of the discretion exercised by the learned Judges of the Madras High Court even though they have given no reasons sons for the reduction of rate of interest pendente life. | 0 | 2,517 | 1,007 | ### 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:
per cent compound interest calculated with quarterly rests was certainly excessive. Taking note of several decisions of the Madras High Court to which we shall presently refer, the learned fudges thought that the rate of interest to be allowed was 10 per cent compound interest with yearly rests.8. It is difficult to predicate of any rate of interest as being excessive divorced from the circumstances of the case unless the rate fixed is so high us to he suggestive of an unfair transaction on the face of things. It is not for us to speculate as to why the Legislature of the State of Madras proceeded in such a round about way in making amendments to the Usurious Loans Act of 1918 for the purpose of giving relief to borrowers when it is well known that at or about the time of the Madras amendment the Legislatures of other States in India had fixed certain rates as being the maximum beyond which the Courts of law were not competent to go. So far as we are aware difference was made in the treatment of unsecured loans and secured loans and even in the case of the former the rate allowed was not to exceed 12 per cent simple in most of the States. With regard to the rate of interest allowed by the Madras High Court after 1937 we find that in Venkatarao v. Venkataratnam, AIR 1952 Mad 872 , a bench consisting of Govinda Menon and Ramaswami, JJ. observed,"that anything above 12 per cent per annum simple interest is excessive, considering the nature of transaction in this State."There the suit was on a mortgage which provided for payment of interest of 121/2 per cent per mensem with annual rests. In Sri Balasaraswathi Ltd., Tirunelveli v. Paramaswara Aiyar, AIR 1957 Mad 122 , a Division Bench consisting of Rajamannar, C. J. and Panchapakesa Ayyar, J. observed (p. 129)"in normal cases where the security is ample to cover the loan and there is no danger at all to the principal and interest the Court will hold more than 12 per cent simple interest to be excessive, as held in AIR Madras and by us in A. S. 348 and 361 of 1948".According to the learned Judges"Where the security is not sound 10 per cent compound interest can be allowed as in A.l.R. 1954 Madras 764".In the result the learned Judges only allowed simple interest at 12 per cent per annum. In the instant cases the learned Judges in appeal also referred to a judgment of Subba Rao, J. (as he then was) in C.S. 163 of 1949 as containing an observation that the dictum in AIR 1952 Mad 872, that "anything above 12 per cent simple interest was excessive would not be taken as a principle of law applicable to all cases irrespective of the circumstances obtaining at the time of the transaction". That transaction also related to Dhanakoti Ammal-the original debtor in this case and Subba Rao, J. (as he then was) reduced the rate of interest from 15 per cent compound interest to 12 per cent per annum simple. We have not had the benefit of reading the judgment of his Lordship, but we take it that the result of it is as indicated in the judgment in appeal before us.9. It appears to us, therefore, that in the opinion of a member of Judges of the Madras High Court who were cognizant of the state of affairs prevailing in the State interest beyond the rate of 12 per cent per annum simple would be considered excessive by Courts of law where the security was not inadequate and the risk run by the creditor was not abnormal. There can be no dispute that interest payable at the rate of 10 per cent compoundable annually over a number of years would be more in the interest of the creditor than 12 per cent per annum simple for the same period. In our opinion the learned Judges of the Division Bench of the Madras High Court were right in holding that 10 per cent compound interest with yearly rests would meet the justice of the case. The security was not inadequate and the threat of suit by Alavandar in view of the fact that his earlier suit which had been taken. in appeal to the Madras High Court and subsequently lost, was never regarded seriously. This is corroborated by the fact that even after the institution of that suit in 1937 the appellant before us advanced further sums of money to Dhanakoti Ammal at the same rate of interest as before. If he had thought that his security was put in jeopardy by the institution of the suit he would have been careful not to advance any further amounts and would in any case have insisted on the rate of interest being higher than that provided for in the earlier mortgages.10. In our opinion the division bench of the Madras High Court made a correct assessment of the situation and their pronouncement with regard to the rate of interest prior to the date of the suit ought not to be disturbed.11. We also find no reason to interfere with the scaling down of the rate of interest to 6 per cent from the date of the filing of the suit. Although the reasons are not indicated, it seems fairly plain that their Lordships were using their discretion as regards interest pendente lite. We cannot overlook the fact that the mortgages were executed as far back as 1936 and 1938 that the creditor who had waited till 1950 for the institution of the suit would, in any event, get interest substantially exceeding the principal amount of the loans. In this view of things we are not prepared to interfere with the exercise of the discretion exercised by the learned Judges of the Madras High Court even though they have given no reasons sons for the reduction of rate of interest pendente life.
### Response:
0
### Explanation:
5. The net result of the above seems to be that the Court must go back to the date of the original transaction and form an opinion as to the rate of interest which would be reasonable afterthe value of the security offered;(b) the financial condition of the debtor including the result of any prior transaction(c) the known or probable risks in getting repayment;(d) whether compound interest was provided for and if so the frequency of the period of calculation of interest for being added to the principal amount of the loan.It is difficult to predicate of any rate of interest as being excessive divorced from the circumstances of the case unless the rate fixed is so high us to he suggestive of an unfair transaction on the face offar as we are aware difference was made in the treatment of unsecured loans and secured loans and even in the case of the former the rate allowed was not to exceed 12 per cent simple in most of the States. With regard to the rate of interest allowed by the Madras High Court after 1937 we find that in Venkatarao v. Venkataratnam, AIR 1952 Mad 872 , a bench consisting of Govinda Menon and Ramaswami, JJ.anything above 12 per cent per annum simple interest is excessive, considering the nature of transaction in thisthe suit was on a mortgage which provided for payment of interest of 121/2 per cent per mensem with annual rests. In Sri Balasaraswathi Ltd., Tirunelveli v. Paramaswara Aiyar, AIR 1957 Mad 122 , a Division Bench consisting of Rajamannar, C. J. and Panchapakesa Ayyar, J. observed (p.normal cases where the security is ample to cover the loan and there is no danger at all to the principal and interest the Court will hold more than 12 per cent simple interest to be excessive, as held in AIR Madras and by us in A. S. 348 and 361 ofto the learnedthe security is not sound 10 per cent compound interest can be allowed as in A.l.R. 1954 Madrasthe result the learned Judges only allowed simple interest at 12 per cent per annum. In the instant cases the learned Judges in appeal also referred to a judgment of Subba Rao, J. (as he then was) in C.S. 163 of 1949 as containing an observation that the dictum in AIR 1952 Mad 872, that "anything above 12 per cent simple interest was excessive would not be taken as a principle of law applicable to all cases irrespective of the circumstances obtaining at the time of the transaction". That transaction also related to Dhanakotioriginal debtor in this case and Subba Rao, J. (as he then was) reduced the rate of interest from 15 per cent compound interest to 12 per cent per annum simple. We have not had the benefit of reading the judgment of his Lordship, but we take it that the result of it is as indicated in the judgment in appeal before us.9. It appears to us, therefore, that in the opinion of a member of Judges of the Madras High Court who were cognizant of the state of affairs prevailing in the State interest beyond the rate of 12 per cent per annum simple would be considered excessive by Courts of law where the security was not inadequate and the risk run by the creditor was not abnormal. There can be no dispute that interest payable at the rate of 10 per cent compoundable annually over a number of years would be more in the interest of the creditor than 12 per cent per annum simple for the same period. In our opinion the learned Judges of the Division Bench of the Madras High Court were right in holding that 10 per cent compound interest with yearly rests would meet the justice of the case. The security was not inadequate and the threat of suit by Alavandar in view of the fact that his earlier suit which had been taken. in appeal to the Madras High Court and subsequently lost, was never regarded seriously. This is corroborated by the fact that even after the institution of that suit in 1937 the appellant before us advanced further sums of money to Dhanakoti Ammal at the same rate of interest as before. If he had thought that his security was put in jeopardy by the institution of the suit he would have been careful not to advance any further amounts and would in any case have insisted on the rate of interest being higher than that provided for in the earlier mortgages.10. In our opinion the division bench of the Madras High Court made a correct assessment of the situation and their pronouncement with regard to the rate of interest prior to the date of the suit ought not to be disturbed.11. We also find no reason to interfere with the scaling down of the rate of interest to 6 per cent from the date of the filing of the suit. Although the reasons are not indicated, it seems fairly plain that their Lordships were using their discretion as regards interest pendente lite. We cannot overlook the fact that the mortgages were executed as far back as 1936 and 1938 that the creditor who had waited till 1950 for the institution of the suit would, in any event, get interest substantially exceeding the principal amount of the loans. In this view of things we are not prepared to interfere with the exercise of the discretion exercised by the learned Judges of the Madras High Court even though they have given no reasons sons for the reduction of rate of interest pendente life.
|
Wasting House Saxby Farmer Vs. Workmen | annual replacement costs of additions from 1922 to 1959. Regarding the deduction of reserves, the management filed a calculation, Ext. G-2. Evidence on these Exhibits was also given by DW 1, who was further cross-examined on behalf of the workmen. The workmen do not appear to have adduced any further evidence after remand.8. The Tribunal, by its award dated February 13, 1967, under attack, has, as mentioned earlier, directed the appellant to pay bonus at the rate of four months wages. The main criticism levelled against the award on behalf of the appellant by its learned counsel, Mr. Malhotra, is that the Tribunal has not complied with the directions given by this Court in its order of remand dated April 12, 1965 and that the award is contrary to the materials on record. The union representing the workmen, though served, has not appeared before us.9. We have gone through the award of the Tribunal and we are satisfied that the criticism levelled by the appellant is fully justified. A major part of the award is taken up by reference to the proceedings that took place at the time when the original award was passed on July 20, 1962. The two directions given by this Court are no doubt quoted in extenso, but unfortunately full effect has not been given to those directions by the Tribunal. The evidence of DW 1 as well as the materials contained in Exhibits G and G-1 have not been at all properly considered by the Tribunal. The specific direction by this Court was that the Tribunal should make calculations on the basis that upto l954 the life of the machinery has to be taken as thirty years and thereafter at twenty years and on this basis the residuary life should be properly calculated. As this has been omitted to be done by the Tribunal in its award dated July 20, l962, the Tribunal was directed to calculate the residuary life as indicated by this Court. The Tribunal has only chosen to criticise the evidence of DW 1 and the charts, Exhibits G and G-1. Even here it has to be stated that the Tribunal has totally misunderstood the nature of the evidence given by this witness. At the earlier stage of the proceedings, a calculation Memo, Ext. E-1, had been filed. Witness, DW1, after remand deposed that most of the figures and particulars have been taken from Ext. E-1 and a recalculation has been made in Exts. G and G-1in accordance with the directions of this Court in Civil Appeal No. 152 of 1964. The Tribunal instead of attempting to find out as to how far the calculations made in Exts. G and G-1 conformed to the directions of this Court and, if not, to make itself a recalculation in accordance with the order in Civil Appeal No. 152 of 1964, has merely criticised the evidence of DW 1 on the ground that the previous calculation, Ext. E-1, has not been accepted by the Tribunal in its previous award dated July 20, 1962. In our opinion, the criticism of this witness is totally unjustified. Therefore, it is clear that the Tribunal has made no attempt to recalculate the rehabilitation amount regarding the remaining life of the machinery, which was direction No. 1 of this Court.10. Then coming to the question of deduction of reserves, the Tribunal has held that the evidence of DW 1, who is the solitary witness for the management and Ext. G-2, the fresh calculation memo filed, cannot be accepted. In this connection it refers to the various aspects, which have to be taken into account, when deciding the question of reserves used as working capital. Most of the discussion on this aspect, in our opinion, was unnecessary in view of the clear directions given by this Court in its order of remand. In the said order, it was specifically directed that the Tribunal should properly scrutinise the various charts and balance sheets filed by the management and ascertain how much of the reserves amounting to rupees sixty lakhs were actually available on June 30, 1959 for purposes of rehabilitation and were not locked up either as working capital consisting of raw materials, etc. or earmarked for specific purposes, like payment of debentures". The Tribunal, unfortunately, has not complied with this direction. Ext. G-2 and the evidence of DW 1 have been rejected merely because the witness has made some contradictory statements regarding the rehabilitation calculation in Ext. E-1. The point that has been missed by the Tribunal is that Ext. E-1 was previous to the original award dated July 20, l962. According to the appellant full particulars, details and figures were already in Ext. E-l and they have been suitably modified according to the directions of this Court. A wholesale rejection of the evidence of DW1 and Ext. G-2 in the manner done by the Tribunal is totally unjustified. The Tribunal had made no attempt to scrutinise the various charts and the balance sheets filed by the appellant and come to any conclusion of its own.11.We have pointed out that the Tribunal has committed a very serious error in not complying with the directions of this Court. The calculation of the remaining life of the machinery and the deduction of reserves for purposes of rehabilitation will involve a close scrutiny of the various charts, balance sheets and statements filed by the parties. That work has to be and should be legitimately done in the first instance only by the Tribunal concerned. The Tribunal was specifically directed to investigate on the lines indicated in the remand order but it has omitted to do so. Under those circumstances there is no other alternative but to send back the proceedings to the Tribunal. Whether the claim for bonus is allowed or negatived or even granted to a limited extent, the Tribunal will have to prepare a chart giving all the necessary particulars and figures to indicate how it has arrived at such a finding. | 1[ds]9. We have gone through the award of the Tribunal and we are satisfied that the criticism levelled by the appellant is fully justified. A major part of the award is taken up by reference to the proceedings that took place at the time when the original award was passed on July 20, 1962. The two directions given by this Court are no doubt quoted in extenso, but unfortunately full effect has not been given to those directions by the Tribunal. The evidence of DW 1 as well as the materials contained in Exhibits G andhave not been at all properly considered by the Tribunal. The specific direction by this Court was that the Tribunal should make calculations on the basis that upto l954 the life of the machinery has to be taken as thirty years and thereafter at twenty years and on this basis the residuary life should be properly calculated. As this has been omitted to be done by the Tribunal in its award dated July 20, l962, the Tribunal was directed to calculate the residuary life as indicated by this Court. The Tribunal has only chosen to criticise the evidence of DW 1 and the charts, Exhibits G andEven here it has to be stated that the Tribunal has totally misunderstood the nature of the evidence given by this witness. At the earlier stage of the proceedings, a calculation Memo, Ext.had been filed. Witness, DW1, after remand deposed that most of the figures and particulars have been taken from Ext.and a recalculation has been made in Exts. G andaccordance with the directions of this Court in Civil Appeal No. 152 of 1964. The Tribunal instead of attempting to find out as to how far the calculations made in Exts. G andconformed to the directions of this Court and, if not, to make itself a recalculation in accordance with the order in Civil Appeal No. 152 of 1964, has merely criticised the evidence of DW 1 on the ground that the previous calculation, Ext.has not been accepted by the Tribunal in its previous award dated July 20, 1962. In our opinion, the criticism of this witness is totally unjustified. Therefore, it is clear that the Tribunal has made no attempt to recalculate the rehabilitation amount regarding the remaining life of the machinery, which was direction No. 1 of this Court.10. Then coming to the question of deduction of reserves, the Tribunal has held that the evidence of DW 1, who is the solitary witness for the management and Ext.the fresh calculation memo filed, cannot be accepted. In this connection it refers to the various aspects, which have to be taken into account, when deciding the question of reserves used as working capital. Most of the discussion on this aspect, in our opinion, was unnecessary in view of the clear directions given by this Court in its order of remand. In the said order, it was specifically directed that the Tribunal should properly scrutinise the various charts and balance sheets filed by the management and ascertain how much of the reserves amounting to rupees sixty lakhs were actually available on June 30, 1959 for purposes of rehabilitation and were not locked up either as working capital consisting of raw materials, etc. or earmarked for specific purposes, like payment of debentures". The Tribunal, unfortunately, has not complied with this direction. Ext.and the evidence of DW 1 have been rejected merely because the witness has made some contradictory statements regarding the rehabilitation calculation in Ext.The point that has been missed by the Tribunal is that Ext.was previous to the original award dated July 20, l962. According to the appellant full particulars, details and figures were already in Ext.and they have been suitably modified according to the directions of this Court. A wholesale rejection of the evidence of DW1 and Ext.in the manner done by the Tribunal is totally unjustified. The Tribunal had made no attempt to scrutinise the various charts and the balance sheets filed by the appellant and come to any conclusion of its own.11.We have pointed out that the Tribunal has committed a very serious error in not complying with the directions of this Court. The calculation of the remaining life of the machinery and the deduction of reserves for purposes of rehabilitation will involve a close scrutiny of the various charts, balance sheets and statements filed by the parties. That work has to be and should be legitimately done in the first instance only by the Tribunal concerned. The Tribunal was specifically directed to investigate on the lines indicated in the remand order but it has omitted to do so. Under those circumstances there is no other alternative but to send back the proceedings to the Tribunal. Whether the claim for bonus is allowed or negatived or even granted to a limited extent, the Tribunal will have to prepare a chart giving all the necessary particulars and figures to indicate how it has arrived at such a finding. | 1 | 2,235 | 903 | ### 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:
annual replacement costs of additions from 1922 to 1959. Regarding the deduction of reserves, the management filed a calculation, Ext. G-2. Evidence on these Exhibits was also given by DW 1, who was further cross-examined on behalf of the workmen. The workmen do not appear to have adduced any further evidence after remand.8. The Tribunal, by its award dated February 13, 1967, under attack, has, as mentioned earlier, directed the appellant to pay bonus at the rate of four months wages. The main criticism levelled against the award on behalf of the appellant by its learned counsel, Mr. Malhotra, is that the Tribunal has not complied with the directions given by this Court in its order of remand dated April 12, 1965 and that the award is contrary to the materials on record. The union representing the workmen, though served, has not appeared before us.9. We have gone through the award of the Tribunal and we are satisfied that the criticism levelled by the appellant is fully justified. A major part of the award is taken up by reference to the proceedings that took place at the time when the original award was passed on July 20, 1962. The two directions given by this Court are no doubt quoted in extenso, but unfortunately full effect has not been given to those directions by the Tribunal. The evidence of DW 1 as well as the materials contained in Exhibits G and G-1 have not been at all properly considered by the Tribunal. The specific direction by this Court was that the Tribunal should make calculations on the basis that upto l954 the life of the machinery has to be taken as thirty years and thereafter at twenty years and on this basis the residuary life should be properly calculated. As this has been omitted to be done by the Tribunal in its award dated July 20, l962, the Tribunal was directed to calculate the residuary life as indicated by this Court. The Tribunal has only chosen to criticise the evidence of DW 1 and the charts, Exhibits G and G-1. Even here it has to be stated that the Tribunal has totally misunderstood the nature of the evidence given by this witness. At the earlier stage of the proceedings, a calculation Memo, Ext. E-1, had been filed. Witness, DW1, after remand deposed that most of the figures and particulars have been taken from Ext. E-1 and a recalculation has been made in Exts. G and G-1in accordance with the directions of this Court in Civil Appeal No. 152 of 1964. The Tribunal instead of attempting to find out as to how far the calculations made in Exts. G and G-1 conformed to the directions of this Court and, if not, to make itself a recalculation in accordance with the order in Civil Appeal No. 152 of 1964, has merely criticised the evidence of DW 1 on the ground that the previous calculation, Ext. E-1, has not been accepted by the Tribunal in its previous award dated July 20, 1962. In our opinion, the criticism of this witness is totally unjustified. Therefore, it is clear that the Tribunal has made no attempt to recalculate the rehabilitation amount regarding the remaining life of the machinery, which was direction No. 1 of this Court.10. Then coming to the question of deduction of reserves, the Tribunal has held that the evidence of DW 1, who is the solitary witness for the management and Ext. G-2, the fresh calculation memo filed, cannot be accepted. In this connection it refers to the various aspects, which have to be taken into account, when deciding the question of reserves used as working capital. Most of the discussion on this aspect, in our opinion, was unnecessary in view of the clear directions given by this Court in its order of remand. In the said order, it was specifically directed that the Tribunal should properly scrutinise the various charts and balance sheets filed by the management and ascertain how much of the reserves amounting to rupees sixty lakhs were actually available on June 30, 1959 for purposes of rehabilitation and were not locked up either as working capital consisting of raw materials, etc. or earmarked for specific purposes, like payment of debentures". The Tribunal, unfortunately, has not complied with this direction. Ext. G-2 and the evidence of DW 1 have been rejected merely because the witness has made some contradictory statements regarding the rehabilitation calculation in Ext. E-1. The point that has been missed by the Tribunal is that Ext. E-1 was previous to the original award dated July 20, l962. According to the appellant full particulars, details and figures were already in Ext. E-l and they have been suitably modified according to the directions of this Court. A wholesale rejection of the evidence of DW1 and Ext. G-2 in the manner done by the Tribunal is totally unjustified. The Tribunal had made no attempt to scrutinise the various charts and the balance sheets filed by the appellant and come to any conclusion of its own.11.We have pointed out that the Tribunal has committed a very serious error in not complying with the directions of this Court. The calculation of the remaining life of the machinery and the deduction of reserves for purposes of rehabilitation will involve a close scrutiny of the various charts, balance sheets and statements filed by the parties. That work has to be and should be legitimately done in the first instance only by the Tribunal concerned. The Tribunal was specifically directed to investigate on the lines indicated in the remand order but it has omitted to do so. Under those circumstances there is no other alternative but to send back the proceedings to the Tribunal. Whether the claim for bonus is allowed or negatived or even granted to a limited extent, the Tribunal will have to prepare a chart giving all the necessary particulars and figures to indicate how it has arrived at such a finding.
### Response:
1
### Explanation:
9. We have gone through the award of the Tribunal and we are satisfied that the criticism levelled by the appellant is fully justified. A major part of the award is taken up by reference to the proceedings that took place at the time when the original award was passed on July 20, 1962. The two directions given by this Court are no doubt quoted in extenso, but unfortunately full effect has not been given to those directions by the Tribunal. The evidence of DW 1 as well as the materials contained in Exhibits G andhave not been at all properly considered by the Tribunal. The specific direction by this Court was that the Tribunal should make calculations on the basis that upto l954 the life of the machinery has to be taken as thirty years and thereafter at twenty years and on this basis the residuary life should be properly calculated. As this has been omitted to be done by the Tribunal in its award dated July 20, l962, the Tribunal was directed to calculate the residuary life as indicated by this Court. The Tribunal has only chosen to criticise the evidence of DW 1 and the charts, Exhibits G andEven here it has to be stated that the Tribunal has totally misunderstood the nature of the evidence given by this witness. At the earlier stage of the proceedings, a calculation Memo, Ext.had been filed. Witness, DW1, after remand deposed that most of the figures and particulars have been taken from Ext.and a recalculation has been made in Exts. G andaccordance with the directions of this Court in Civil Appeal No. 152 of 1964. The Tribunal instead of attempting to find out as to how far the calculations made in Exts. G andconformed to the directions of this Court and, if not, to make itself a recalculation in accordance with the order in Civil Appeal No. 152 of 1964, has merely criticised the evidence of DW 1 on the ground that the previous calculation, Ext.has not been accepted by the Tribunal in its previous award dated July 20, 1962. In our opinion, the criticism of this witness is totally unjustified. Therefore, it is clear that the Tribunal has made no attempt to recalculate the rehabilitation amount regarding the remaining life of the machinery, which was direction No. 1 of this Court.10. Then coming to the question of deduction of reserves, the Tribunal has held that the evidence of DW 1, who is the solitary witness for the management and Ext.the fresh calculation memo filed, cannot be accepted. In this connection it refers to the various aspects, which have to be taken into account, when deciding the question of reserves used as working capital. Most of the discussion on this aspect, in our opinion, was unnecessary in view of the clear directions given by this Court in its order of remand. In the said order, it was specifically directed that the Tribunal should properly scrutinise the various charts and balance sheets filed by the management and ascertain how much of the reserves amounting to rupees sixty lakhs were actually available on June 30, 1959 for purposes of rehabilitation and were not locked up either as working capital consisting of raw materials, etc. or earmarked for specific purposes, like payment of debentures". The Tribunal, unfortunately, has not complied with this direction. Ext.and the evidence of DW 1 have been rejected merely because the witness has made some contradictory statements regarding the rehabilitation calculation in Ext.The point that has been missed by the Tribunal is that Ext.was previous to the original award dated July 20, l962. According to the appellant full particulars, details and figures were already in Ext.and they have been suitably modified according to the directions of this Court. A wholesale rejection of the evidence of DW1 and Ext.in the manner done by the Tribunal is totally unjustified. The Tribunal had made no attempt to scrutinise the various charts and the balance sheets filed by the appellant and come to any conclusion of its own.11.We have pointed out that the Tribunal has committed a very serious error in not complying with the directions of this Court. The calculation of the remaining life of the machinery and the deduction of reserves for purposes of rehabilitation will involve a close scrutiny of the various charts, balance sheets and statements filed by the parties. That work has to be and should be legitimately done in the first instance only by the Tribunal concerned. The Tribunal was specifically directed to investigate on the lines indicated in the remand order but it has omitted to do so. Under those circumstances there is no other alternative but to send back the proceedings to the Tribunal. Whether the claim for bonus is allowed or negatived or even granted to a limited extent, the Tribunal will have to prepare a chart giving all the necessary particulars and figures to indicate how it has arrived at such a finding.
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State Of Orissa Vs. M/S Tata Sponge Iron Ltd | of the view that for the incentive under paragraph 7.5 read with entry No.44 as notified in S.R.O No. 1019 of 1992, exemption of tax did not provide any period of limitation. Neither the IPR, 1992 nor the Finance Department Notification in SRO No.1019 of 1992 provided any stipulation as to how long the exemption from sales tax would remain in force and therefore, the position that emerges therefrom, is that, such exemption granted under the Notification was to remain operative till the industry utilizes / exhausts the incentive granted to it. The petitioner is entitled to such benefit till such time such exemption is allowed to remain in force without being withdrawn by the subsequent notification. It is important to point out here that no such notification withdrawing such exemption has been brought to our notice in course of hearing. 9. Indisputably, pursuant to or in furtherance of the aforementioned IPR, 1992, the State Government amended the provisions of the Orissa Sales Tax Act. Section 6 of the said Act reads as under: 6. Tax Free Goods The State Government may, by notification, subject to such conditions and exceptions, if any, exempt from tax the sale or purchase of any goods, or class of goods and likewise withdraw any such exemption. 10. Indisputably, again pursuant to or in furtherance of the aforementioned provision, the Finance Department of the State of Orissa had issued notification bearing SRO No. 1091 of 1992 dated 23.09.1992 and inserted Entry 44 in terms whereof the respondent became entitled to exemption. Entry 44 of the said notification reads as under: 44. Sale of finished products of an existing industrial unit, located in Orissa i.e. an industrial unit which has gone into production before 1st August, 1992, and which has undertaken expansion / modernization / diversification of the said unit after the 1st day of August, 1992 on the basis of separate project report duly appraised by the financial institution, and a certificate to this effect that is, regarding expansion / modernization / diversification of the unit is produced from the concerned General Manager, Project Manager, District Industries; Centre in case of Small Scale Units and a certificate in Form E (92) is produced from the Director of Industries, Orissa in case of Medium, Large and pioneer Units. The exemption of sales tax shall be limited to 60 per cent of the additional capital investment, in plant and machinery only in Zone-C, 75 per cent of the additional capital investment in plant and machinery only in Zone-B and 100 per cent of additional capital investment in plant and machinery only in Zone-A. Explanation I:- Additional capital investment in plant and machinery means additional investment of 50 per cent of more of the undepreciated book value of fixed capital investment of an existing unit in acquisition of plant and machinery for expanding / modernization / diversifying the production of the said unit. Provided that the benefit of exemption is admissible only on the incremental sales arising out of such expansion / modernization and diversification. Provided further that no exemption as indicated above shall be allowed to the following categories of industries, namely: 1. Rice Hullers and Rice Mills. 2. Flour Mills including manufacture of Besan, Pulse Mill and chuda mills. 3-47 .................................................................. 5. Further, the eligibility certificate granted for sales tax concession on sale of finished products categorically states that exemption may be available as per Finance Department Notification No. SRO 1091 of 1992 as amended from time to time up to a ceiling amount of: 1. 100% of the additional capital investment in plant and machineries being located in ......Zone-A 2. 75% -do- .......Zone-B 3. 60% -do- ........Zone-C 11. It is not in dispute that in the said entry, during which the same would remain operative, no period far less the period of five or seven years had been mentioned. The only limitation prescribed thereby was that only 75% of the additional capital investment in Zone B would be allowed where the unit of the respondent is situate. 12. In terms of Clause 5 of IPR, 1992, the respondent became entitled to exemption from payment of sales tax on finished products for an amount of Rs. 49.45 crores being 75% of Rs. 63.95 crores invested in plant and machinery. 13. We may notice that the Finance Department of the State of Orissa passed a consequential order in IPR, 1992 bearing SRO No. 1091 of 1992 dated 23.09.1992 which was given effect from 1.08.1992. A bare perusal of the said notification would clearly show that whenever the period upto which the exemption, could be obtained was required to be stated had specifically been done therein, as for example Sl.Nos. 30A, 41, 42A and 43A etc. We may, furthermore, notice that against the Entry 44, however, what is mentioned is the extent to which such exemption would be granted. No period during which such exemption is to be obtained was stated. In other words, no period of limitation was fixed thereby. 14. In view of the clear legal provision as also the aforementioned notification dated 23.09.1992, there cannot be any doubt whatsoever that the exemption in respect of deferment of sales tax having been provided for under the Orissa Sales Tax Act as also the notification issued thereunder, the High Court, in our opinion, is correct in taking its view. 15. It is furthermore a well settled principle of law that an exemption notification must be liberally construed. [See Commissioner of Customs (Imports), Mumbai v. Tullow India Operations Ltd., (2005) 13 SCC 789, Tata Iron & Steel Co. Ltd. v. State of Jharkhand and Others, (2005) 4 SCC 272, Government of India and Ors. v. Indian Tobacco Association, (2005) 7 SCC 396, Commnr. Of Central Excise, Raipur v. Hira Cement, JT 2006 (2) SC 369 . and P.R. Prabhakar v. Commnr. of Income Tax, Coimbatore, 2006 (7) SCALE 191 ]. The said principle, therefore, applies in all fours in the present case. 16. For the reasons aforementioned, there | 0[ds]9. Indisputably, pursuant to or in furtherance of the aforementioned IPR, 1992, the State Government amended the provisions of the Orissa Sales Tax Act. Section 6 of the said Act reads as under:6. Tax Free Goods The State Government may, by notification, subject to such conditions and exceptions, if any, exempt from tax the sale or purchase of any goods, or class of goods and likewise withdraw any such exemption10. Indisputably, again pursuant to or in furtherance of the aforementioned provision, the Finance Department of the State of Orissa had issued notification bearing SRO No. 1091 of 1992 dated 23.09.1992 and inserted Entry 44 in terms whereof the respondent became entitled to exemption. Entry 44 of the said notification reads as under:44. Sale of finished products of an existing industrial unit, located in Orissa i.e. an industrial unit which has gone into production before 1st August, 1992, and which has undertaken expansion / modernization / diversification of the said unit after the 1st day of August, 1992 on the basis of separate project report duly appraised by the financial institution, and a certificate to this effect that is, regarding expansion / modernization / diversification of the unit is produced from the concerned General Manager, Project Manager, District Industries; Centre in case of Small Scale Units and a certificate in Form E (92) is produced from the Director of Industries, Orissa in case of Medium, Large and pioneer UnitsThe exemption of sales tax shall be limited to 60 per cent of the additional capital investment, in plant and machinery only in Zone-C, 75 per cent of the additional capital investment in plant and machinery only in Zone-B and 100 per cent of additional capital investment in plant and machinery only in Zone-AExplanation I:- Additional capital investment in plant and machinery means additional investment of 50 per cent of more of the undepreciated book value of fixed capital investment of an existing unit in acquisition of plant and machinery for expanding / modernization / diversifying the production of the said unitProvided that the benefit of exemption is admissible only on the incremental sales arising out of such expansion / modernization and diversificationProvided further that no exemption as indicated above shall be allowed to the following categories of industries, namely:1. Rice Hullers and Rice Mills2. Flour Mills including manufacture of Besan, Pulse Mill and chuda mills5. Further, the eligibility certificate granted for sales tax concession on sale of finished products categorically states that exemption may be available as per Finance Department Notification No. SRO 1091 of 1992 as amended from time to time up to a ceiling amount of:1. 100% of the additional capital investment in plant and machineries being located in ......Zone-A11. It is not in dispute that in the said entry, during which the same would remain operative, no period far less the period of five or seven years had been mentioned. The only limitation prescribed thereby was that only 75% of the additional capital investment in Zone B would be allowed where the unit of the respondent is situate12. In terms of Clause 5 of IPR, 1992, the respondent became entitled to exemption from payment of sales tax on finished products for an amount of Rs. 49.45 crores being 75% of Rs. 63.95 crores invested in plant and machinery13. We may notice that the Finance Department of the State of Orissa passed a consequential order in IPR, 1992 bearing SRO No. 1091 of 1992 dated 23.09.1992 which was given effect from 1.08.1992. A bare perusal of the said notification would clearly show that whenever the period upto which the exemption, could be obtained was required to be stated had specifically been done therein, as for example Sl.Nos. 30A, 41, 42A and 43A etc. We may, furthermore, notice that against the Entry 44, however, what is mentioned is the extent to which such exemption would be granted. No period during which such exemption is to be obtained was stated. In other words, no period of limitation was fixed thereby14. In view of the clear legal provision as also the aforementioned notification dated 23.09.1992, there cannot be any doubt whatsoever that the exemption in respect of deferment of sales tax having been provided for under the Orissa Sales Tax Act as also the notification issued thereunder, the High Court, in our opinion, is correct in taking its view15. It is furthermore a well settled principle of law that an exemption notification must be liberally construed. [See Commissioner of Customs (Imports), Mumbai v. Tullow India Operations Ltd., (2005) 13 SCC 789, Tata Iron & Steel Co. Ltd. v. State of Jharkhand and Others, (2005) 4 SCC 272, Government of India and Ors. v. Indian Tobacco Association, (2005) 7 SCC 396, Commnr. Of Central Excise, Raipur v. Hira Cement, JT 2006 (2) SC 369 . and P.R. Prabhakar v. Commnr. of Income Tax, Coimbatore, 2006 (7) SCALE 191 ]. The said principle, therefore, applies in all fours in the present case16. For the reasons aforementioned, there is no merit in this appeal which is dismissed accordingly with costs. Counsels fee assessed at Rs. 25,000/-. | 0 | 3,330 | 971 | ### 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 the view that for the incentive under paragraph 7.5 read with entry No.44 as notified in S.R.O No. 1019 of 1992, exemption of tax did not provide any period of limitation. Neither the IPR, 1992 nor the Finance Department Notification in SRO No.1019 of 1992 provided any stipulation as to how long the exemption from sales tax would remain in force and therefore, the position that emerges therefrom, is that, such exemption granted under the Notification was to remain operative till the industry utilizes / exhausts the incentive granted to it. The petitioner is entitled to such benefit till such time such exemption is allowed to remain in force without being withdrawn by the subsequent notification. It is important to point out here that no such notification withdrawing such exemption has been brought to our notice in course of hearing. 9. Indisputably, pursuant to or in furtherance of the aforementioned IPR, 1992, the State Government amended the provisions of the Orissa Sales Tax Act. Section 6 of the said Act reads as under: 6. Tax Free Goods The State Government may, by notification, subject to such conditions and exceptions, if any, exempt from tax the sale or purchase of any goods, or class of goods and likewise withdraw any such exemption. 10. Indisputably, again pursuant to or in furtherance of the aforementioned provision, the Finance Department of the State of Orissa had issued notification bearing SRO No. 1091 of 1992 dated 23.09.1992 and inserted Entry 44 in terms whereof the respondent became entitled to exemption. Entry 44 of the said notification reads as under: 44. Sale of finished products of an existing industrial unit, located in Orissa i.e. an industrial unit which has gone into production before 1st August, 1992, and which has undertaken expansion / modernization / diversification of the said unit after the 1st day of August, 1992 on the basis of separate project report duly appraised by the financial institution, and a certificate to this effect that is, regarding expansion / modernization / diversification of the unit is produced from the concerned General Manager, Project Manager, District Industries; Centre in case of Small Scale Units and a certificate in Form E (92) is produced from the Director of Industries, Orissa in case of Medium, Large and pioneer Units. The exemption of sales tax shall be limited to 60 per cent of the additional capital investment, in plant and machinery only in Zone-C, 75 per cent of the additional capital investment in plant and machinery only in Zone-B and 100 per cent of additional capital investment in plant and machinery only in Zone-A. Explanation I:- Additional capital investment in plant and machinery means additional investment of 50 per cent of more of the undepreciated book value of fixed capital investment of an existing unit in acquisition of plant and machinery for expanding / modernization / diversifying the production of the said unit. Provided that the benefit of exemption is admissible only on the incremental sales arising out of such expansion / modernization and diversification. Provided further that no exemption as indicated above shall be allowed to the following categories of industries, namely: 1. Rice Hullers and Rice Mills. 2. Flour Mills including manufacture of Besan, Pulse Mill and chuda mills. 3-47 .................................................................. 5. Further, the eligibility certificate granted for sales tax concession on sale of finished products categorically states that exemption may be available as per Finance Department Notification No. SRO 1091 of 1992 as amended from time to time up to a ceiling amount of: 1. 100% of the additional capital investment in plant and machineries being located in ......Zone-A 2. 75% -do- .......Zone-B 3. 60% -do- ........Zone-C 11. It is not in dispute that in the said entry, during which the same would remain operative, no period far less the period of five or seven years had been mentioned. The only limitation prescribed thereby was that only 75% of the additional capital investment in Zone B would be allowed where the unit of the respondent is situate. 12. In terms of Clause 5 of IPR, 1992, the respondent became entitled to exemption from payment of sales tax on finished products for an amount of Rs. 49.45 crores being 75% of Rs. 63.95 crores invested in plant and machinery. 13. We may notice that the Finance Department of the State of Orissa passed a consequential order in IPR, 1992 bearing SRO No. 1091 of 1992 dated 23.09.1992 which was given effect from 1.08.1992. A bare perusal of the said notification would clearly show that whenever the period upto which the exemption, could be obtained was required to be stated had specifically been done therein, as for example Sl.Nos. 30A, 41, 42A and 43A etc. We may, furthermore, notice that against the Entry 44, however, what is mentioned is the extent to which such exemption would be granted. No period during which such exemption is to be obtained was stated. In other words, no period of limitation was fixed thereby. 14. In view of the clear legal provision as also the aforementioned notification dated 23.09.1992, there cannot be any doubt whatsoever that the exemption in respect of deferment of sales tax having been provided for under the Orissa Sales Tax Act as also the notification issued thereunder, the High Court, in our opinion, is correct in taking its view. 15. It is furthermore a well settled principle of law that an exemption notification must be liberally construed. [See Commissioner of Customs (Imports), Mumbai v. Tullow India Operations Ltd., (2005) 13 SCC 789, Tata Iron & Steel Co. Ltd. v. State of Jharkhand and Others, (2005) 4 SCC 272, Government of India and Ors. v. Indian Tobacco Association, (2005) 7 SCC 396, Commnr. Of Central Excise, Raipur v. Hira Cement, JT 2006 (2) SC 369 . and P.R. Prabhakar v. Commnr. of Income Tax, Coimbatore, 2006 (7) SCALE 191 ]. The said principle, therefore, applies in all fours in the present case. 16. For the reasons aforementioned, there
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9. Indisputably, pursuant to or in furtherance of the aforementioned IPR, 1992, the State Government amended the provisions of the Orissa Sales Tax Act. Section 6 of the said Act reads as under:6. Tax Free Goods The State Government may, by notification, subject to such conditions and exceptions, if any, exempt from tax the sale or purchase of any goods, or class of goods and likewise withdraw any such exemption10. Indisputably, again pursuant to or in furtherance of the aforementioned provision, the Finance Department of the State of Orissa had issued notification bearing SRO No. 1091 of 1992 dated 23.09.1992 and inserted Entry 44 in terms whereof the respondent became entitled to exemption. Entry 44 of the said notification reads as under:44. Sale of finished products of an existing industrial unit, located in Orissa i.e. an industrial unit which has gone into production before 1st August, 1992, and which has undertaken expansion / modernization / diversification of the said unit after the 1st day of August, 1992 on the basis of separate project report duly appraised by the financial institution, and a certificate to this effect that is, regarding expansion / modernization / diversification of the unit is produced from the concerned General Manager, Project Manager, District Industries; Centre in case of Small Scale Units and a certificate in Form E (92) is produced from the Director of Industries, Orissa in case of Medium, Large and pioneer UnitsThe exemption of sales tax shall be limited to 60 per cent of the additional capital investment, in plant and machinery only in Zone-C, 75 per cent of the additional capital investment in plant and machinery only in Zone-B and 100 per cent of additional capital investment in plant and machinery only in Zone-AExplanation I:- Additional capital investment in plant and machinery means additional investment of 50 per cent of more of the undepreciated book value of fixed capital investment of an existing unit in acquisition of plant and machinery for expanding / modernization / diversifying the production of the said unitProvided that the benefit of exemption is admissible only on the incremental sales arising out of such expansion / modernization and diversificationProvided further that no exemption as indicated above shall be allowed to the following categories of industries, namely:1. Rice Hullers and Rice Mills2. Flour Mills including manufacture of Besan, Pulse Mill and chuda mills5. Further, the eligibility certificate granted for sales tax concession on sale of finished products categorically states that exemption may be available as per Finance Department Notification No. SRO 1091 of 1992 as amended from time to time up to a ceiling amount of:1. 100% of the additional capital investment in plant and machineries being located in ......Zone-A11. It is not in dispute that in the said entry, during which the same would remain operative, no period far less the period of five or seven years had been mentioned. The only limitation prescribed thereby was that only 75% of the additional capital investment in Zone B would be allowed where the unit of the respondent is situate12. In terms of Clause 5 of IPR, 1992, the respondent became entitled to exemption from payment of sales tax on finished products for an amount of Rs. 49.45 crores being 75% of Rs. 63.95 crores invested in plant and machinery13. We may notice that the Finance Department of the State of Orissa passed a consequential order in IPR, 1992 bearing SRO No. 1091 of 1992 dated 23.09.1992 which was given effect from 1.08.1992. A bare perusal of the said notification would clearly show that whenever the period upto which the exemption, could be obtained was required to be stated had specifically been done therein, as for example Sl.Nos. 30A, 41, 42A and 43A etc. We may, furthermore, notice that against the Entry 44, however, what is mentioned is the extent to which such exemption would be granted. No period during which such exemption is to be obtained was stated. In other words, no period of limitation was fixed thereby14. In view of the clear legal provision as also the aforementioned notification dated 23.09.1992, there cannot be any doubt whatsoever that the exemption in respect of deferment of sales tax having been provided for under the Orissa Sales Tax Act as also the notification issued thereunder, the High Court, in our opinion, is correct in taking its view15. It is furthermore a well settled principle of law that an exemption notification must be liberally construed. [See Commissioner of Customs (Imports), Mumbai v. Tullow India Operations Ltd., (2005) 13 SCC 789, Tata Iron & Steel Co. Ltd. v. State of Jharkhand and Others, (2005) 4 SCC 272, Government of India and Ors. v. Indian Tobacco Association, (2005) 7 SCC 396, Commnr. Of Central Excise, Raipur v. Hira Cement, JT 2006 (2) SC 369 . and P.R. Prabhakar v. Commnr. of Income Tax, Coimbatore, 2006 (7) SCALE 191 ]. The said principle, therefore, applies in all fours in the present case16. For the reasons aforementioned, there is no merit in this appeal which is dismissed accordingly with costs. Counsels fee assessed at Rs. 25,000/-.
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Messrs British Machinery Supplies Company Vs. Union of India and Others | it releases items at prices other than fixed by the Pricing Committee, it would be committing a breach of the Government Policy. Hence at the time of the release of an item the SAIL has to release it at the price fixed by the Pricing Committee. It is not disputed that the appellant was bound by the Import Policy. In fact, the application made by the appellant for registering itself for the imported G.P. sheets/coils makes it clear that the appellant is bound by the said Policy, Hence, the appellant cannot make any grievance that they had to pay the price of the material as was prevalent at the time of the release of the material. Admittedly, the release of the material in favour of the appellant is after February 8, 198113. As regard the contention that the appellant was not supplied 62 metric tonnes of G.P. sheets, as has been explained in the counter-affidavit filed on behalf of the SAIL, the foreign suppliers of the said material could not supply the same since there was a fire and the supplier had invoked the force majeure clause of the contract. It is in these circumstances that no supply of the material could be made to the appellant. Hence the appellant cannot make a grievance in the behalf. The contention that during the period from April 1981 to November 1981, other were supplied whereas the appellant was ignored the same is untenable. As has been pointed out on behalf of the SAIL in its counter-affidavit, all the said suppliers had registered their demands prior to February 8, 1982. They have also given the dates on which the said concerns had registered their demands which bear out the truth of their statement made in the counter-affidavit 14. The contention that three enterprises, viz., M/s Irshad Enterprises Best Trunk House and Steel House were supplied the material at non-enhanced price, the respondent-SAIL in its counter-affidavit has pointed out that in respect of M/s Irshad Enterprises, a sum of Rs. 20, 000 had not been charged through inadvertent mistake in calculation. It had no relevance whatsoever to the increased price of Rs. 800 per metric ton. As soon as the said mistake was discovered, a debit note was raised against the said party to recover the amount. It has also been pointed out that the increased price of Rs. 800 per metric ton had been charged from all the said three parties and the allegation in that behalf is baseless and incorrect. As regards the contention that the appellant had registered its demands prior to February 8, 1982, as has been stated above, the Pricing Committee met on December 8, 1981 for the first time to consider the increase in the price wherein a tentative decision to increase the price of Rs. 800 per metric ton was taken. It again met on December 16, 1981 to finally approve the said decision and it was resolved formally that the price would be increased by Rs. 800 per metric ton. The minutes of the meeting were circulated by the Ministry of Steel and Mines on January 2, 1982 and formal order were issued in that behalf by the Chief Controller of Imports and Exports on January 30, 1982. The said orders were received by the SAIL on February 2, 1982 by its head office in New Delhi, and on February 8, 1982 by its office at Calcutta and were implemented on the same day. The SAIL could not increased the price unless formal written orders of the Government were received by it which it did on February 8, 198215. As regards the contention that between December 16, 1981 and February 8, 1982, certain parties were supplied the material at the old rate, it is pointed out on behalf of the respondent that till February 8, 1982 they could not charge the price at the enhanced rate. However, even in respect of the said parties, supplementary invoices were raised in order to release and recover the enhanced price of Rs. 800 per metric ton for the supplies made to them during that period. In fact, as against the amount of Rs. 2, 36, 895 (approx.) being the total value at the rate of Rs. 800 per metric ton, an amount of Rs. 80, 868 has already been recovered from the said five parties to clear 101.085 metric tonnes of G.P. sheets/coils sold during the said period. From the remaining 8 parties, an amount of Rs. 1, 56, 027 is due on account of the said increase, the quantity involved being 195.034 metric tonnes. One of the reasons why the said amount has yet to be recovered is that the concerned eight parties are not regular customers of the SAIL and have not come forward for further imports through it. However, the counter-affidavit states that the SAIL is taking all necessary steps available to it in law to realise the aforesaid amount from the said eight parties as well16. Coming to the last contention, viz., that there is no justification for increase in the price, suffice it to say that it is not for the Court to decide whether the prices of particular items should be increased or lowered or fixed at particular rates. The Government of India and its Pricing Committees appointed to determine the prices for the commodities, have to take several factors into consideration including the indigenous market conditions of the material concerned and the effect of the prices on the production, availability and prices of the goods which are produced with the help of such imported material, and the price of the very same material or substituted material or its substitutes in the indigenous as well as international markets. Pricing is a part of the package of the import and export policy. It does appear, as has been stated in the counter-affidavit filed on behalf of the respondent-SAIL that at the relevant time there was a need to increase the price of G.P. sheets/coils | 0[ds]In the first instance, as paragraph 65 of the Import Policy for the yearshows, in the case of the items listed in Appendix 8 of the Handbook of81 (which include the present material), the eligible actual user had to register their 12 months requirement with the canalised agencywhich is the SAIL in the present casetogether with earnest money calculated at 2 per cent of the sale value of the quantity registered or Rs. 50, 000 whichever is less. Paragraph 66 states that the canalising agency would take financial cover as it considered necessary before arranging the imports. Paragraph 72 states that there would be a Pricing Committee under the chairmanship of the Chief Controller of Imports and Exports for determining/prescribing the selling price of canalised items from time to time. Paragraph 73 states that imports distribution and pricing of the items would be governed by the concerned policy of the Government. It may be added here that on the Pricing Committee, representative of the SAIL was only an invitee member11. Paragraph 151 of the Handbook on Import Policystates that under the Import Policya canalising agency is expected to take into account the availability of indigenously produced material before imports are arranged. It further states that no person registering his requirements with the canalising agency will have the right to ask for a particular brand or make. Paragraph 152 then states as follows"152. An Actual User, while registering his requirements for allotment of a canalised item, should indicate to the canalising agency the phased programme of delivery on a quarterly basisor monthly if so laid down by the canalising agency. The canalising agency will scrutinise such registration and indicate within a period of 90 days, the arrangements it would be able to make for effecting supplies. In case, the canalising agency does not (a) give any such indication for a period of delivery at least three months ahead from the date of registration or (b) effect deliveries as registered with it and for which it has or could have taken financial cover as laid in the Import Policy,the Actual User may approach the(Monitoring Committee), New Delhi, for appropriate relief by way of direct imports."12. It is clear from paragraph 72 of the Import Policy that Government of India had constituted a Pricing Committee for determining/prescribing the selling price of the canalised items from time to time. There are various considerations which go into revising the price of the canalised items, from time to time. The Pricing Committee is independent of the SAIL where representative is only an invitee member to the Committees meetings, and the SAIL being only a canalising agency has to abide by the decisions on pricing taken from time to time by the Pricing Committee. The SAIL has no authority to fix the price. In fact, if it releases items at prices other than fixed by the Pricing Committee, it would be committing a breach of the Government Policy. Hence at the time of the release of an item the SAIL has to release it at the price fixed by the Pricing Committee. It is not disputed that the appellant was bound by the Import Policy. In fact, the application made by the appellant for registering itself for the imported G.P. sheets/coils makes it clear that the appellant is bound by the said Policy, Hence, the appellant cannot make any grievance that they had to pay the price of the material as was prevalent at the time of the release of the material. Admittedly, the release of the material in favour of the appellant is after February 8, 198113. As regard the contention that the appellant was not supplied 62 metric tonnes of G.P. sheets, as has been explained in thefiled on behalf of the SAIL, the foreign suppliers of the said material could not supply the same since there was a fire and the supplier had invoked the force majeure clause of the contract. It is in these circumstances that no supply of the material could be made to the appellant. Hence the appellant cannot make a grievance in the behalf. The contention that during the period from April 1981 to November 1981, other were supplied whereas the appellant was ignored the same is untenable. As has been pointed out on behalf of the SAIL in itsall the said suppliers had registered their demands prior to February 8, 1982. They have also given the dates on which the said concerns had registered their demands which bear out the truth of their statement made in theThe contention that three enterprises, viz., M/s Irshad Enterprises Best Trunk House and Steel House were supplied the material atAIL in itshas pointed out that in respect of M/s Irshad Enterprises, a sum of Rs. 20, 000 had not been charged through inadvertent mistake in calculation. It had no relevance whatsoever to the increased price of Rs. 800 per metric ton. As soon as the said mistake was discovered, a debit note was raised against the said party to recover the amount. It has also been pointed out that the increased price of Rs. 800 per metric ton had been charged from all the said three parties and the allegation in that behalf is baseless and incorrect. As regards the contention that the appellant had registered its demands prior to February 8, 1982, as has been stated above, the Pricing Committee met on December 8, 1981 for the first time to consider the increase in the price wherein a tentative decision to increase the price of Rs. 800 per metric ton was taken. It again met on December 16, 1981 to finally approve the said decision and it was resolved formally that the price would be increased by Rs. 800 per metric ton. The minutes of the meeting were circulated by the Ministry of Steel and Mines on January 2, 1982 and formal order were issued in that behalf by the Chief Controller of Imports and Exports on January 30, 1982. The said orders were received by the SAIL on February 2, 1982 by its head office in New Delhi, and on February 8, 1982 by its office at Calcutta and were implemented on the same day. The SAIL could not increased the price unless formal written orders of the Government were received by it which it did on February 8, 198215. As regards the contention that between December 16, 1981 and February 8, 1982, certain parties were supplied the material at the old rate, it is pointed out on behalf of the respondent that till February 8, 1982 they could not charge the price at the enhanced rate. However, even in respect of the said parties, supplementary invoices were raised in order to release and recover the enhanced price of Rs. 800 per metric ton for the supplies made to them during that period. In fact, as against the amount of Rs. 2, 36, 895 (approx.) being the total value at the rate of Rs. 800 per metric ton, an amount of Rs. 80, 868 has already been recovered from the said five parties to clear 101.085 metric tonnes of G.P. sheets/coils sold during the said period. From the remaining 8 parties, an amount of Rs. 1, 56, 027 is due on account of the said increase, the quantity involved being 195.034 metric tonnes. One of the reasons why the said amount has yet to be recovered is that the concerned eight parties are not regular customers of the SAIL and have not come forward for further imports through it. However, thestates that the SAIL is taking all necessary steps available to it in law to realise the aforesaid amount from the said eight parties as well16. Coming to the last contention, viz., that there is no justification for increase in the price, suffice it to say that it is not for the Court to decide whether the prices of particular items should be increased or lowered or fixed at particular rates. The Government of India and its Pricing Committees appointed to determine the prices for the commodities, have to take several factors into consideration including the indigenous market conditions of the material concerned and the effect of the prices on the production, availability and prices of the goods which are produced with the help of such imported material, and the price of the very same material or substituted material or its substitutes in the indigenous as well as international markets. Pricing is a part of the package of the import and export policy. It does appear, as has been stated in thefiled on behalf of thethat at the relevant time there was a need to increase the price of G.P. sheets/coils | 0 | 2,687 | 1,596 | ### 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:
it releases items at prices other than fixed by the Pricing Committee, it would be committing a breach of the Government Policy. Hence at the time of the release of an item the SAIL has to release it at the price fixed by the Pricing Committee. It is not disputed that the appellant was bound by the Import Policy. In fact, the application made by the appellant for registering itself for the imported G.P. sheets/coils makes it clear that the appellant is bound by the said Policy, Hence, the appellant cannot make any grievance that they had to pay the price of the material as was prevalent at the time of the release of the material. Admittedly, the release of the material in favour of the appellant is after February 8, 198113. As regard the contention that the appellant was not supplied 62 metric tonnes of G.P. sheets, as has been explained in the counter-affidavit filed on behalf of the SAIL, the foreign suppliers of the said material could not supply the same since there was a fire and the supplier had invoked the force majeure clause of the contract. It is in these circumstances that no supply of the material could be made to the appellant. Hence the appellant cannot make a grievance in the behalf. The contention that during the period from April 1981 to November 1981, other were supplied whereas the appellant was ignored the same is untenable. As has been pointed out on behalf of the SAIL in its counter-affidavit, all the said suppliers had registered their demands prior to February 8, 1982. They have also given the dates on which the said concerns had registered their demands which bear out the truth of their statement made in the counter-affidavit 14. The contention that three enterprises, viz., M/s Irshad Enterprises Best Trunk House and Steel House were supplied the material at non-enhanced price, the respondent-SAIL in its counter-affidavit has pointed out that in respect of M/s Irshad Enterprises, a sum of Rs. 20, 000 had not been charged through inadvertent mistake in calculation. It had no relevance whatsoever to the increased price of Rs. 800 per metric ton. As soon as the said mistake was discovered, a debit note was raised against the said party to recover the amount. It has also been pointed out that the increased price of Rs. 800 per metric ton had been charged from all the said three parties and the allegation in that behalf is baseless and incorrect. As regards the contention that the appellant had registered its demands prior to February 8, 1982, as has been stated above, the Pricing Committee met on December 8, 1981 for the first time to consider the increase in the price wherein a tentative decision to increase the price of Rs. 800 per metric ton was taken. It again met on December 16, 1981 to finally approve the said decision and it was resolved formally that the price would be increased by Rs. 800 per metric ton. The minutes of the meeting were circulated by the Ministry of Steel and Mines on January 2, 1982 and formal order were issued in that behalf by the Chief Controller of Imports and Exports on January 30, 1982. The said orders were received by the SAIL on February 2, 1982 by its head office in New Delhi, and on February 8, 1982 by its office at Calcutta and were implemented on the same day. The SAIL could not increased the price unless formal written orders of the Government were received by it which it did on February 8, 198215. As regards the contention that between December 16, 1981 and February 8, 1982, certain parties were supplied the material at the old rate, it is pointed out on behalf of the respondent that till February 8, 1982 they could not charge the price at the enhanced rate. However, even in respect of the said parties, supplementary invoices were raised in order to release and recover the enhanced price of Rs. 800 per metric ton for the supplies made to them during that period. In fact, as against the amount of Rs. 2, 36, 895 (approx.) being the total value at the rate of Rs. 800 per metric ton, an amount of Rs. 80, 868 has already been recovered from the said five parties to clear 101.085 metric tonnes of G.P. sheets/coils sold during the said period. From the remaining 8 parties, an amount of Rs. 1, 56, 027 is due on account of the said increase, the quantity involved being 195.034 metric tonnes. One of the reasons why the said amount has yet to be recovered is that the concerned eight parties are not regular customers of the SAIL and have not come forward for further imports through it. However, the counter-affidavit states that the SAIL is taking all necessary steps available to it in law to realise the aforesaid amount from the said eight parties as well16. Coming to the last contention, viz., that there is no justification for increase in the price, suffice it to say that it is not for the Court to decide whether the prices of particular items should be increased or lowered or fixed at particular rates. The Government of India and its Pricing Committees appointed to determine the prices for the commodities, have to take several factors into consideration including the indigenous market conditions of the material concerned and the effect of the prices on the production, availability and prices of the goods which are produced with the help of such imported material, and the price of the very same material or substituted material or its substitutes in the indigenous as well as international markets. Pricing is a part of the package of the import and export policy. It does appear, as has been stated in the counter-affidavit filed on behalf of the respondent-SAIL that at the relevant time there was a need to increase the price of G.P. sheets/coils
### Response:
0
### Explanation:
time to time by the Pricing Committee. The SAIL has no authority to fix the price. In fact, if it releases items at prices other than fixed by the Pricing Committee, it would be committing a breach of the Government Policy. Hence at the time of the release of an item the SAIL has to release it at the price fixed by the Pricing Committee. It is not disputed that the appellant was bound by the Import Policy. In fact, the application made by the appellant for registering itself for the imported G.P. sheets/coils makes it clear that the appellant is bound by the said Policy, Hence, the appellant cannot make any grievance that they had to pay the price of the material as was prevalent at the time of the release of the material. Admittedly, the release of the material in favour of the appellant is after February 8, 198113. As regard the contention that the appellant was not supplied 62 metric tonnes of G.P. sheets, as has been explained in thefiled on behalf of the SAIL, the foreign suppliers of the said material could not supply the same since there was a fire and the supplier had invoked the force majeure clause of the contract. It is in these circumstances that no supply of the material could be made to the appellant. Hence the appellant cannot make a grievance in the behalf. The contention that during the period from April 1981 to November 1981, other were supplied whereas the appellant was ignored the same is untenable. As has been pointed out on behalf of the SAIL in itsall the said suppliers had registered their demands prior to February 8, 1982. They have also given the dates on which the said concerns had registered their demands which bear out the truth of their statement made in theThe contention that three enterprises, viz., M/s Irshad Enterprises Best Trunk House and Steel House were supplied the material atAIL in itshas pointed out that in respect of M/s Irshad Enterprises, a sum of Rs. 20, 000 had not been charged through inadvertent mistake in calculation. It had no relevance whatsoever to the increased price of Rs. 800 per metric ton. As soon as the said mistake was discovered, a debit note was raised against the said party to recover the amount. It has also been pointed out that the increased price of Rs. 800 per metric ton had been charged from all the said three parties and the allegation in that behalf is baseless and incorrect. As regards the contention that the appellant had registered its demands prior to February 8, 1982, as has been stated above, the Pricing Committee met on December 8, 1981 for the first time to consider the increase in the price wherein a tentative decision to increase the price of Rs. 800 per metric ton was taken. It again met on December 16, 1981 to finally approve the said decision and it was resolved formally that the price would be increased by Rs. 800 per metric ton. The minutes of the meeting were circulated by the Ministry of Steel and Mines on January 2, 1982 and formal order were issued in that behalf by the Chief Controller of Imports and Exports on January 30, 1982. The said orders were received by the SAIL on February 2, 1982 by its head office in New Delhi, and on February 8, 1982 by its office at Calcutta and were implemented on the same day. The SAIL could not increased the price unless formal written orders of the Government were received by it which it did on February 8, 198215. As regards the contention that between December 16, 1981 and February 8, 1982, certain parties were supplied the material at the old rate, it is pointed out on behalf of the respondent that till February 8, 1982 they could not charge the price at the enhanced rate. However, even in respect of the said parties, supplementary invoices were raised in order to release and recover the enhanced price of Rs. 800 per metric ton for the supplies made to them during that period. In fact, as against the amount of Rs. 2, 36, 895 (approx.) being the total value at the rate of Rs. 800 per metric ton, an amount of Rs. 80, 868 has already been recovered from the said five parties to clear 101.085 metric tonnes of G.P. sheets/coils sold during the said period. From the remaining 8 parties, an amount of Rs. 1, 56, 027 is due on account of the said increase, the quantity involved being 195.034 metric tonnes. One of the reasons why the said amount has yet to be recovered is that the concerned eight parties are not regular customers of the SAIL and have not come forward for further imports through it. However, thestates that the SAIL is taking all necessary steps available to it in law to realise the aforesaid amount from the said eight parties as well16. Coming to the last contention, viz., that there is no justification for increase in the price, suffice it to say that it is not for the Court to decide whether the prices of particular items should be increased or lowered or fixed at particular rates. The Government of India and its Pricing Committees appointed to determine the prices for the commodities, have to take several factors into consideration including the indigenous market conditions of the material concerned and the effect of the prices on the production, availability and prices of the goods which are produced with the help of such imported material, and the price of the very same material or substituted material or its substitutes in the indigenous as well as international markets. Pricing is a part of the package of the import and export policy. It does appear, as has been stated in thefiled on behalf of thethat at the relevant time there was a need to increase the price of G.P. sheets/coils
|
SYEDA NAZIRA KHATOON (D) BY LR Vs. SYED ZAHIRUDDIN AHMED BAGHDADI AND OTHERS | another person, he cannot undertake such a transfer, unless such a power is expressly given to him by the wakif in the wakf deed. The following excerpt from Mulla?s Principles of Mohammedan Law, Mulla?s Principles of Mohammedan Law (21 st edn., 2017) at page 298. is relevant in this context:?S214: Office of mutawalli not transferable – A mutawalli has no power to transfer the office to another, unless such a power is expressly conferred upon him by the founder…?This view is also echoed by other scholars including Asaf A.A. Fyzee. Asaf A.A. Fyzee, Outlines of Muhammadan Law (5 th edn., Tahir Mahmood) at page 249. We may also fruitfully refer to two decisions of the High Court of Kerala in this regard. In Badagara Jumayath Palli Dharas Committee v. Peedikayalakath Ummerkutty Haji, AIR 2002 Ker 56 the High Court had to decide the validity of a similar agreement, by which the mutawalli had transferred his office to a society. Adverting to the aforementioned excerpt from Mulla?s Principles of Mohammedan Law (supra), the Court observed that there cannot be any transfer of mutawalliship and held the agreement of transfer to be invalid.In Abdul Latheef v. K.P. Abdurahiman, (2014) 1 KLJ 329. the Kerala High Court had occasion to deal with the validity of a transfer of the mutawalli?s office to a Committee, and held the same to be invalid. The following observations from the decision are relevant:?24. The upshot of the discussions is that Muhammadan Law does not generally empower a mutawalli to transfer his right during life time. There is a clear distinction in the matter of powers between the appropriator or the waqif who himself becomes the first mutawalli and a mutawalli appointed by the waqif for administering the wakf. Although the waqif may resign his office as first mutawalli and out of his own residuary or general powers as waqif appoint his own successor, the mutawalli appointed by the waqif or any other person succeeding such a mutawalli has no such unbridled power. All the leading authorities on Muhammadan Law declare that a mutawalli cannot assign or transfer his office to anyone or appoint another during his life time, unless he is clothed with powers which are so general in nature.?10. In light of these pronouncements and authoritative texts on Mohammedan law, it is more than clear that the mutawalli does not have a general power to assign or transfer his office to another person, unless he is given such powers by the wakf deed itself. In the instant case, the wakf deed does not give the mutawalli any such power to select another person as the future mutawalli on his demise, by creating a trust deed or any other instrument to that effect. In the absence of such an authorization, the transfer of the office of mutawalli by Syed Badruddin Ahmed by way of a trust deed in favour of his wife, clearly went beyond the purview of his powers and the settled principles of Mohammedan law. The succession of the office of mutawalli should be in accordance with the intention of the wakif who created the wakf, and the same cannot be subverted through any other document contrary to the intention of the wakif. Here, given that Nazira Khatoon was the wife of the last mutawalli and not a direct descendant in the family, she would not have been entitled to the mutawalliship even if the wakf deed were to be interpreted broadly to include female descendants. Thus, the creation of the trust deed to alter the succession of the office of mutawalli in her favour, is tantamount to changing the terms of the original wakf deed. It is a subversion of the intent underlying the wakf deed and is illegal, as it goes beyond the powers vested with the mutawalli. The claim of late Nazira Khatoon to the mutawalliship of the said wakf estate is therefore unsustainable.11. The second question to be considered is whether the daughters of the last mutawalli and Nazira Khatoon, including the Appellant herein, would qualify to be the mutawalli under the express terms of the wakf deed. For this, the term ?putro poutradi korme? requires to be interpreted.12. Different translations of the wakf deed have been produced before us. While the translation adduced by the Appellant at Annexure P-1 interprets ?putro poutradi krome? to mean ?through successive generations or successors?, the translation adduced by the Respondent No.1 at Annexure R¬1 interprets it as ?sons and grandsons in succession?.We are inclined to agree with the interpretation put forth by the learned counsel for the Respondent(s). Admittedly, the official translation before this Court indicates that the term ?putro poutradi krome? means future generations or descendants. This is also supported by the dictionaries cited by the Counsel for the Appellant. However, it is to be noted that the same source also shows that the word ?putro? means son and grandson. In reading and interpreting the term ?putro poutradi krome?, the meaning of the individual words must also be considered and accounted for. A combined reading of these terms lends support to the view that ?putro poutradi krome? means son and grandson, generation after generation, and therefore does not include any female descendants.13. Following this meaning, it becomes clear that the original wakf deed did not envisage female descendants to fall within the purview of these words and hold the office of mutawalli. Thus, Nazira Khatoon or her daughters (including the Appellant herein) cannot stake any claim to the mutawalliship of the wakf estate. Instead, being the nephew of the last mutawalli, Respondent No. 1 herein is a male lineal descendant of the original mutawalli, and is therefore entitled to hold the office of mutawalli as per the wakf deed. While it is not in dispute that women can also hold the office of mutawalli under Mohammedan law, on the facts at hand, it is clear that the wakif intended to create the mutawalliship only in favour of male descendants, from generation to generation. | 0[ds]10. In light of these pronouncements and authoritative texts on Mohammedan law, it is more than clear that the mutawalli does not have a general power to assign or transfer his office to another person, unless he is given such powers by the wakf deed itself. In the instant case, the wakf deed does not give the mutawalli any such power to select another person as the future mutawalli on his demise, by creating a trust deed or any other instrument to that effect. In the absence of such an authorization, the transfer of the office of mutawalli by Syed Badruddin Ahmed by way of a trust deed in favour of his wife, clearly went beyond the purview of his powers and the settled principles of Mohammedan law. The succession of the office of mutawalli should be in accordance with the intention of the wakif who created the wakf, and the same cannot be subverted through any other document contrary to the intention of the wakif. Here, given that Nazira Khatoon was the wife of the last mutawalli and not a direct descendant in the family, she would not have been entitled to the mutawalliship even if the wakf deed were to be interpreted broadly to include female descendants. Thus, the creation of the trust deed to alter the succession of the office of mutawalli in her favour, is tantamount to changing the terms of the original wakf deed. It is a subversion of the intent underlying the wakf deed and is illegal, as it goes beyond the powers vested with the mutawalli. The claim of late Nazira Khatoon to the mutawalliship of the said wakf estate is therefore unsustainable.Different translations of the wakf deed have been produced before us. While the translation adduced by the Appellant at Annexure P-1 interprets ?putro poutradi krome? to mean ?through successive generations or successors?, the translation adduced by the Respondent No.1 at Annexure R¬1 interprets it as ?sons and grandsons in succession?.We are inclined to agree with the interpretation put forth by the learned counsel for the Respondent(s). Admittedly, the official translation before this Court indicates that the term ?putro poutradi krome? means future generations or descendants. This is also supported by the dictionaries cited by the Counsel for the Appellant. However, it is to be noted that the same source also shows that the word ?putro? means son and grandson. In reading and interpreting the term ?putro poutradi krome?, the meaning of the individual words must also be considered and accounted for. A combined reading of these terms lends support to the view that ?putro poutradi krome? means son and grandson, generation after generation, and therefore does not include any female descendants.13. Following this meaning, it becomes clear that the original wakf deed did not envisage female descendants to fall within the purview of these words and hold the office of mutawalli. Thus, Nazira Khatoon or her daughters (including the Appellant herein) cannot stake any claim to the mutawalliship of the wakf estate. Instead, being the nephew of the last mutawalli, Respondent No. 1 herein is a male lineal descendant of the original mutawalli, and is therefore entitled to hold the office of mutawalli as per the wakf deed. While it is not in dispute that women can also hold the office of mutawalli under Mohammedan law, on the facts at hand, it is clear that the wakif intended to create the mutawalliship only in favour of male descendants, from generation toMohammedan law, when a wakf is created, all rights in the property pass from the wakif or dedicator to the God. The mutawalli is only a manager of such property and does not have any rights init is well-settled that a mutawalli only acts in a managerial capacity for the wakf. As regards his power to transfer his office to another person, he cannot undertake such a transfer, unless such a power is expressly given to him by the wakif in the wakf deed. | 0 | 2,854 | 742 | ### 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:
another person, he cannot undertake such a transfer, unless such a power is expressly given to him by the wakif in the wakf deed. The following excerpt from Mulla?s Principles of Mohammedan Law, Mulla?s Principles of Mohammedan Law (21 st edn., 2017) at page 298. is relevant in this context:?S214: Office of mutawalli not transferable – A mutawalli has no power to transfer the office to another, unless such a power is expressly conferred upon him by the founder…?This view is also echoed by other scholars including Asaf A.A. Fyzee. Asaf A.A. Fyzee, Outlines of Muhammadan Law (5 th edn., Tahir Mahmood) at page 249. We may also fruitfully refer to two decisions of the High Court of Kerala in this regard. In Badagara Jumayath Palli Dharas Committee v. Peedikayalakath Ummerkutty Haji, AIR 2002 Ker 56 the High Court had to decide the validity of a similar agreement, by which the mutawalli had transferred his office to a society. Adverting to the aforementioned excerpt from Mulla?s Principles of Mohammedan Law (supra), the Court observed that there cannot be any transfer of mutawalliship and held the agreement of transfer to be invalid.In Abdul Latheef v. K.P. Abdurahiman, (2014) 1 KLJ 329. the Kerala High Court had occasion to deal with the validity of a transfer of the mutawalli?s office to a Committee, and held the same to be invalid. The following observations from the decision are relevant:?24. The upshot of the discussions is that Muhammadan Law does not generally empower a mutawalli to transfer his right during life time. There is a clear distinction in the matter of powers between the appropriator or the waqif who himself becomes the first mutawalli and a mutawalli appointed by the waqif for administering the wakf. Although the waqif may resign his office as first mutawalli and out of his own residuary or general powers as waqif appoint his own successor, the mutawalli appointed by the waqif or any other person succeeding such a mutawalli has no such unbridled power. All the leading authorities on Muhammadan Law declare that a mutawalli cannot assign or transfer his office to anyone or appoint another during his life time, unless he is clothed with powers which are so general in nature.?10. In light of these pronouncements and authoritative texts on Mohammedan law, it is more than clear that the mutawalli does not have a general power to assign or transfer his office to another person, unless he is given such powers by the wakf deed itself. In the instant case, the wakf deed does not give the mutawalli any such power to select another person as the future mutawalli on his demise, by creating a trust deed or any other instrument to that effect. In the absence of such an authorization, the transfer of the office of mutawalli by Syed Badruddin Ahmed by way of a trust deed in favour of his wife, clearly went beyond the purview of his powers and the settled principles of Mohammedan law. The succession of the office of mutawalli should be in accordance with the intention of the wakif who created the wakf, and the same cannot be subverted through any other document contrary to the intention of the wakif. Here, given that Nazira Khatoon was the wife of the last mutawalli and not a direct descendant in the family, she would not have been entitled to the mutawalliship even if the wakf deed were to be interpreted broadly to include female descendants. Thus, the creation of the trust deed to alter the succession of the office of mutawalli in her favour, is tantamount to changing the terms of the original wakf deed. It is a subversion of the intent underlying the wakf deed and is illegal, as it goes beyond the powers vested with the mutawalli. The claim of late Nazira Khatoon to the mutawalliship of the said wakf estate is therefore unsustainable.11. The second question to be considered is whether the daughters of the last mutawalli and Nazira Khatoon, including the Appellant herein, would qualify to be the mutawalli under the express terms of the wakf deed. For this, the term ?putro poutradi korme? requires to be interpreted.12. Different translations of the wakf deed have been produced before us. While the translation adduced by the Appellant at Annexure P-1 interprets ?putro poutradi krome? to mean ?through successive generations or successors?, the translation adduced by the Respondent No.1 at Annexure R¬1 interprets it as ?sons and grandsons in succession?.We are inclined to agree with the interpretation put forth by the learned counsel for the Respondent(s). Admittedly, the official translation before this Court indicates that the term ?putro poutradi krome? means future generations or descendants. This is also supported by the dictionaries cited by the Counsel for the Appellant. However, it is to be noted that the same source also shows that the word ?putro? means son and grandson. In reading and interpreting the term ?putro poutradi krome?, the meaning of the individual words must also be considered and accounted for. A combined reading of these terms lends support to the view that ?putro poutradi krome? means son and grandson, generation after generation, and therefore does not include any female descendants.13. Following this meaning, it becomes clear that the original wakf deed did not envisage female descendants to fall within the purview of these words and hold the office of mutawalli. Thus, Nazira Khatoon or her daughters (including the Appellant herein) cannot stake any claim to the mutawalliship of the wakf estate. Instead, being the nephew of the last mutawalli, Respondent No. 1 herein is a male lineal descendant of the original mutawalli, and is therefore entitled to hold the office of mutawalli as per the wakf deed. While it is not in dispute that women can also hold the office of mutawalli under Mohammedan law, on the facts at hand, it is clear that the wakif intended to create the mutawalliship only in favour of male descendants, from generation to generation.
### Response:
0
### Explanation:
10. In light of these pronouncements and authoritative texts on Mohammedan law, it is more than clear that the mutawalli does not have a general power to assign or transfer his office to another person, unless he is given such powers by the wakf deed itself. In the instant case, the wakf deed does not give the mutawalli any such power to select another person as the future mutawalli on his demise, by creating a trust deed or any other instrument to that effect. In the absence of such an authorization, the transfer of the office of mutawalli by Syed Badruddin Ahmed by way of a trust deed in favour of his wife, clearly went beyond the purview of his powers and the settled principles of Mohammedan law. The succession of the office of mutawalli should be in accordance with the intention of the wakif who created the wakf, and the same cannot be subverted through any other document contrary to the intention of the wakif. Here, given that Nazira Khatoon was the wife of the last mutawalli and not a direct descendant in the family, she would not have been entitled to the mutawalliship even if the wakf deed were to be interpreted broadly to include female descendants. Thus, the creation of the trust deed to alter the succession of the office of mutawalli in her favour, is tantamount to changing the terms of the original wakf deed. It is a subversion of the intent underlying the wakf deed and is illegal, as it goes beyond the powers vested with the mutawalli. The claim of late Nazira Khatoon to the mutawalliship of the said wakf estate is therefore unsustainable.Different translations of the wakf deed have been produced before us. While the translation adduced by the Appellant at Annexure P-1 interprets ?putro poutradi krome? to mean ?through successive generations or successors?, the translation adduced by the Respondent No.1 at Annexure R¬1 interprets it as ?sons and grandsons in succession?.We are inclined to agree with the interpretation put forth by the learned counsel for the Respondent(s). Admittedly, the official translation before this Court indicates that the term ?putro poutradi krome? means future generations or descendants. This is also supported by the dictionaries cited by the Counsel for the Appellant. However, it is to be noted that the same source also shows that the word ?putro? means son and grandson. In reading and interpreting the term ?putro poutradi krome?, the meaning of the individual words must also be considered and accounted for. A combined reading of these terms lends support to the view that ?putro poutradi krome? means son and grandson, generation after generation, and therefore does not include any female descendants.13. Following this meaning, it becomes clear that the original wakf deed did not envisage female descendants to fall within the purview of these words and hold the office of mutawalli. Thus, Nazira Khatoon or her daughters (including the Appellant herein) cannot stake any claim to the mutawalliship of the wakf estate. Instead, being the nephew of the last mutawalli, Respondent No. 1 herein is a male lineal descendant of the original mutawalli, and is therefore entitled to hold the office of mutawalli as per the wakf deed. While it is not in dispute that women can also hold the office of mutawalli under Mohammedan law, on the facts at hand, it is clear that the wakif intended to create the mutawalliship only in favour of male descendants, from generation toMohammedan law, when a wakf is created, all rights in the property pass from the wakif or dedicator to the God. The mutawalli is only a manager of such property and does not have any rights init is well-settled that a mutawalli only acts in a managerial capacity for the wakf. As regards his power to transfer his office to another person, he cannot undertake such a transfer, unless such a power is expressly given to him by the wakif in the wakf deed.
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Burn Standard Company Limited and Another Vs. Tarun Kumar Chakraborty and Others | permit the first respondent to join the service when he reported on 22-10-1984. The first respondent having found himself in an unenviable position of leaving the earlier job and joining the service in the appellant Company and being without salary filed a writ petition [CR No. 19272(W) of 1984] praying, inter alia, for a direction to the appellant to allow him to join the post of Deputy Manager, Accounts (Project) and also claiming salary with effect from 22-10-1984. On the said writ petition, on 27-12-1984, a learned Single Judge of the Calcutta High Court passed an order, which reads thus: "In the meanwhile, the respondents are directed not to fill up the vacancy for the post of Deputy Manager, Accounts (Project) until the rule is culled out." * Having failed to get any relief, the first respondent filed a second writ petition, Civil Order No. 13315(W) of 1985, praying for a direction to the appellant to pay his salary for the post of Deputy Manager, Accounts (Project) with effect from 22-10-1984. On 18-9-1985, a learned Single Judge issued the following directions: "In the meantime, the respondents are directed to pay salary to the petitioner including arrears, if any, as admissible in law. This order is passed upon consideration of the facts and the circumstances of the case upon hearing the submissions made on behalf of the parties." * The appellant carried that order in appeal before a Division Bench. The appeal was admitted and, it is stated, that the order under appeal was stayed. By order dated 11-4-1989, the writ appeal was disposed of directing the learned Single Judge to dispose of the writ petitions filed by the first respondent expeditiously. Accordingly, those writ petitions were allowed on 22-12-1995. The appellant questioned the correctness of that order in FMAT No. 371 of 1997. The Division Bench of the High Court which heard the appeal, declined to interfere with the order passed by the learned Single Judge and dismissed the appeal on 14-8-1997. It is from that order of the Division Bench that the present appeal arises. Mr. Altaf Ahmed, learned Additional Solicitor-General contended that the reason why the first respondent was not allowed to join the service was because it was advised by its counsel that in view of the orders of the learned Single Judge, the first respondent could not be permitted to join the service. To avert any complication, the appellant, it is submitted, filed an application in the writ petition filed by the Association praying to implead the first respondent and seeking permission to allow him to join the service but no order was passed by the Court on the said application though the matter was being heard from time to time. Ultimately, submits the learned Additional Solicitor-General, on a settlement being reached between the Company and the Association, the writ petition filed by the Association was withdrawn on 12-10-1988 and till then, the appellant had reasonable cause for not permitting the respondent to join service and, therefore, the Company cannot be burdened with the payment of salary for the said period. Mr. Jaideep Gupta, learned counsel appearing for the first respondent, on the other hand, took us through various orders passed by the Court in different proceedings and submitted that there was no absolute bar on the appellants to permit the first respondent to join the service and as they are at fault, therefore, they must pay salary to the first respondent for the period commencing from 12-10-1988 till 15-5-1997 when the first respondent was permitted to join the service. The question is whether the first respondent is entitled to his salary for the period from 12-10-1988 to 15-5-1997. It is no doubt true that the first respondent did not work during that period and, without anything more, he cannot claim salary for the said period on the principle "no work, no pay". But in this case, he reported to the appellants to join service on 12-10-1988 but was not allowed to do so till 15-5-1997. It is not on account of any fault of the first respondent that he was kept out of service and not permitted to work by the appellants. The appellants endeavoured to justify their action on the ground that due to pendency of case filed by the Association they believed that they could not permit him to join duty except on pain of facing contempt proceedings and that they took all possible steps to help the first respondent - first by taking legal advice and secondly by seeking permission of the Court - as such they had reasonable cause for not allowing him to join service. The said period can conveniently be divided into two spans, first commencing from 22-10-1984 to 12-10-1988 when the writ proceedings initiated by the Association terminated on being withdrawn and second from 12-10-1988 till 15-5-1997 when the first respondent was permitted to join the service. Evidently during the second period the appellant had no justification much less any impediment in law to permit the first respondent to join the service. Having regard to the circumstances indicated above, we are inclined to take the view that the appellants had reasonable ground to believe that the first respondent could not be permitted to join the service during the period first mentioned in view of the pendency of the writ petitions filed by the Association against them and in view of various interim orders passed by the courts and were supported in that view by legal advice. But for the period commencing from 12-10-1988 till 15-5-1997 there is absolutely no reason why the first respondent was not permitted to join the service. For this period, the first respondent is entitled to receive his full salary with usual allowances admissible to the post of Deputy Manager, Accounts (Project) and if the salary for the said post has been revised during that period, he will be entitled to the same and also to all consequential benefits permissible for the said period. | 1[ds]It is no doubt true that the first respondent did not work during that period and, without anything more, he cannot claim salary for the said period on the principle "no work, no pay". But in this case, he reported to the appellants to join service on 12-10-1988 but was not allowed to do so till 15-5-1997. It is not on account of any fault of the first respondent that he was kept out of service and not permitted to work by the appellants. The appellants endeavoured to justify their action on the ground that due to pendency of case filed by the Association they believed that they could not permit him to join duty except on pain of facing contempt proceedings and that they took all possible steps to help the first respondentfirst by taking legal advice and secondly by seeking permission of the Courtas such they had reasonable cause for not allowing him to join serviceThe said period can conveniently be divided into two spans, first commencing from 22-10-1984 to 12-10-1988 when the writ proceedings initiated by the Association terminated on being withdrawn and second from12-10-1988till 15-5-1997when the first respondent was permitted to join the service.Evidently during the second period the appellant had no justification much less any impediment in law to permit the first respondent to join the service. Having regard to the circumstances indicated above, we are inclined to take the view that the appellants had reasonable ground to believe that the first respondent could not be permitted to join the service during the period first mentioned in view of the pendency of the writ petitions filed by the Association against them and in view of various interim orders passed by the courts and were supported in that view by legal advice. But for the period commencing from12-10-1988till 15-5-1997there is absolutely no reason why the first respondent was not permitted to join the service. For this period, the first respondent is entitled to receive his full salary with usual allowances admissible to the post of Deputy Manager, Accounts (Project) and if the salary for the said post has been revised during that period, he will be entitled to the same and also to all consequential benefits permissible for the said period. | 1 | 1,477 | 400 | ### 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:
permit the first respondent to join the service when he reported on 22-10-1984. The first respondent having found himself in an unenviable position of leaving the earlier job and joining the service in the appellant Company and being without salary filed a writ petition [CR No. 19272(W) of 1984] praying, inter alia, for a direction to the appellant to allow him to join the post of Deputy Manager, Accounts (Project) and also claiming salary with effect from 22-10-1984. On the said writ petition, on 27-12-1984, a learned Single Judge of the Calcutta High Court passed an order, which reads thus: "In the meanwhile, the respondents are directed not to fill up the vacancy for the post of Deputy Manager, Accounts (Project) until the rule is culled out." * Having failed to get any relief, the first respondent filed a second writ petition, Civil Order No. 13315(W) of 1985, praying for a direction to the appellant to pay his salary for the post of Deputy Manager, Accounts (Project) with effect from 22-10-1984. On 18-9-1985, a learned Single Judge issued the following directions: "In the meantime, the respondents are directed to pay salary to the petitioner including arrears, if any, as admissible in law. This order is passed upon consideration of the facts and the circumstances of the case upon hearing the submissions made on behalf of the parties." * The appellant carried that order in appeal before a Division Bench. The appeal was admitted and, it is stated, that the order under appeal was stayed. By order dated 11-4-1989, the writ appeal was disposed of directing the learned Single Judge to dispose of the writ petitions filed by the first respondent expeditiously. Accordingly, those writ petitions were allowed on 22-12-1995. The appellant questioned the correctness of that order in FMAT No. 371 of 1997. The Division Bench of the High Court which heard the appeal, declined to interfere with the order passed by the learned Single Judge and dismissed the appeal on 14-8-1997. It is from that order of the Division Bench that the present appeal arises. Mr. Altaf Ahmed, learned Additional Solicitor-General contended that the reason why the first respondent was not allowed to join the service was because it was advised by its counsel that in view of the orders of the learned Single Judge, the first respondent could not be permitted to join the service. To avert any complication, the appellant, it is submitted, filed an application in the writ petition filed by the Association praying to implead the first respondent and seeking permission to allow him to join the service but no order was passed by the Court on the said application though the matter was being heard from time to time. Ultimately, submits the learned Additional Solicitor-General, on a settlement being reached between the Company and the Association, the writ petition filed by the Association was withdrawn on 12-10-1988 and till then, the appellant had reasonable cause for not permitting the respondent to join service and, therefore, the Company cannot be burdened with the payment of salary for the said period. Mr. Jaideep Gupta, learned counsel appearing for the first respondent, on the other hand, took us through various orders passed by the Court in different proceedings and submitted that there was no absolute bar on the appellants to permit the first respondent to join the service and as they are at fault, therefore, they must pay salary to the first respondent for the period commencing from 12-10-1988 till 15-5-1997 when the first respondent was permitted to join the service. The question is whether the first respondent is entitled to his salary for the period from 12-10-1988 to 15-5-1997. It is no doubt true that the first respondent did not work during that period and, without anything more, he cannot claim salary for the said period on the principle "no work, no pay". But in this case, he reported to the appellants to join service on 12-10-1988 but was not allowed to do so till 15-5-1997. It is not on account of any fault of the first respondent that he was kept out of service and not permitted to work by the appellants. The appellants endeavoured to justify their action on the ground that due to pendency of case filed by the Association they believed that they could not permit him to join duty except on pain of facing contempt proceedings and that they took all possible steps to help the first respondent - first by taking legal advice and secondly by seeking permission of the Court - as such they had reasonable cause for not allowing him to join service. The said period can conveniently be divided into two spans, first commencing from 22-10-1984 to 12-10-1988 when the writ proceedings initiated by the Association terminated on being withdrawn and second from 12-10-1988 till 15-5-1997 when the first respondent was permitted to join the service. Evidently during the second period the appellant had no justification much less any impediment in law to permit the first respondent to join the service. Having regard to the circumstances indicated above, we are inclined to take the view that the appellants had reasonable ground to believe that the first respondent could not be permitted to join the service during the period first mentioned in view of the pendency of the writ petitions filed by the Association against them and in view of various interim orders passed by the courts and were supported in that view by legal advice. But for the period commencing from 12-10-1988 till 15-5-1997 there is absolutely no reason why the first respondent was not permitted to join the service. For this period, the first respondent is entitled to receive his full salary with usual allowances admissible to the post of Deputy Manager, Accounts (Project) and if the salary for the said post has been revised during that period, he will be entitled to the same and also to all consequential benefits permissible for the said period.
### Response:
1
### Explanation:
It is no doubt true that the first respondent did not work during that period and, without anything more, he cannot claim salary for the said period on the principle "no work, no pay". But in this case, he reported to the appellants to join service on 12-10-1988 but was not allowed to do so till 15-5-1997. It is not on account of any fault of the first respondent that he was kept out of service and not permitted to work by the appellants. The appellants endeavoured to justify their action on the ground that due to pendency of case filed by the Association they believed that they could not permit him to join duty except on pain of facing contempt proceedings and that they took all possible steps to help the first respondentfirst by taking legal advice and secondly by seeking permission of the Courtas such they had reasonable cause for not allowing him to join serviceThe said period can conveniently be divided into two spans, first commencing from 22-10-1984 to 12-10-1988 when the writ proceedings initiated by the Association terminated on being withdrawn and second from12-10-1988till 15-5-1997when the first respondent was permitted to join the service.Evidently during the second period the appellant had no justification much less any impediment in law to permit the first respondent to join the service. Having regard to the circumstances indicated above, we are inclined to take the view that the appellants had reasonable ground to believe that the first respondent could not be permitted to join the service during the period first mentioned in view of the pendency of the writ petitions filed by the Association against them and in view of various interim orders passed by the courts and were supported in that view by legal advice. But for the period commencing from12-10-1988till 15-5-1997there is absolutely no reason why the first respondent was not permitted to join the service. For this period, the first respondent is entitled to receive his full salary with usual allowances admissible to the post of Deputy Manager, Accounts (Project) and if the salary for the said post has been revised during that period, he will be entitled to the same and also to all consequential benefits permissible for the said period.
|
M/S. Indian Chemical & Pharmaceutical Works Vs. State Of Andhra Pradesh & Ors | notification any substance as an intoxicating drug within the meaning of the Act provided it was an intoxicating and narcotic substance. If such a declaration is made the substance will be liable to excise duty under the amended Act and the Rules framed thereunder and will be liable to such incidental control as may be necessary for the collection of duties. Further, drugs being in the Concurrent List, the provisions of the 1953 amendment Act will also be a law under item 19 of List III and will be in addition to the Drugs Act of 1940 by virtue of S. 2 thereof. Now it appears that chloral hydrate has been notified by the Government of Andhra Pradesh as an intoxicating drug within the meaning of the amended Act. It was thereafter that the rules were framed. The Rules provide for the manufacture of chloral hydrate under a licence and for payment of duties of excise of Rs. 500/- per year on such manufacture. They also provide for possession, sale, import, export and transport. If chloral hydrate is a narcotic drug or a narcotic within the meaning of entry 51 of List II of the Seventh Schedule and is an intoxicating drug and narcotic substance within the meaning of S. 2 (1) (iv) of the amended Act, it could be notified under the amended Act and on such notification it would be liable to excise duty and to such incidental control as may be necessary for the purpose of collection of excise duty. We are in the present case mainly concerned with the grant of licence and imposition of excise duty of Rs. 500/- per annum. If chloral hydrate is an intoxicating and narcotic substance, the rules could be framed with respect to its control and the appellant could be asked to take out a licence and pay excise duty or the manufacture thereof, even though chloral hydrate may be a drug which is controlled under the Drugs Act.14. The case of the State Government in this connection is that chloral hydrate is a narcotic drug or a narcotic within the meaning of entry 51 of List II of the Seventh Schedule. Its further case is that it increases intoxication if mixed with liquor and that it is being produced in large quantities in order that it may be mixed with liquor. That is the reason why the State has framed the rules to control the production of chloral hydrate. The appellant in its writ petition admitted that chloral hydrate was used in small doses as a hypnotic and sedative. Now the dictionary meaning of the word "narcotic" is a substance which relieves pain, produces sleep, and in large doses brings on stupor, coma, and even death, as opium, hemlock, alcohol etc. Obviously, therefore, if chloral hydrate is hypnotic and sedative as admitted by the appellant, it would be a narcotic. The appellant however relies on the statement in the affidavit filed on behalf of the State to show that chloral hydrate is not a narcotic or a narcotic drug within the meaning of entry 51 of List II, for if it is not a narcotic or a narcotic drug within the meaning no duty of excise can be imposed by the State legislature thereon. The part of the affidavit on behalf of the State relied upon by the appellant was dealing with a vague allegation of the appellant that chloral hydrate was a medicinal preparation. In that connection it was submitted on behalf of the State that chloral hydrate was not a medicinal or toilet preparation coming within the definition of the Medicinal and Toiler Preparations (Excise Duties) Act, 16 of 1955 "as this substance in a finished form does not contain either alcohol opium, Indian hemp or other narcotic drug or narcotics". These last word were taken from the schedule to the Act of 1955 which mentions any medicinal preparation not containing alcohol but containing opium, Indian hemp or other narcotic drug or narcotic. In the 1955-Act narcotic drug or narcotic has been defined as meaning a substance (other than alcohol) which when swallowed or inhaled by, or injected into, a human being induces drowsiness, sleep, stupefaction or insensibility in the human being and which is a dangerous drug within the meaning of the Dangerous Drugs Act, 1930. Obviously, therefore, the words "narcotic drug" and "narcotic" used in the 1955-Act have a special meaning and this was all that was intended when in the affidavit filed by the State these words were used. But all narcotics or narcotic drugs are not covered by the Dangerous Drugs Act and there can be narcotics and narcotic drugs which are not covered by the Dangerous Drugs Act.There can be no other conclusion on the evidence in the present case that chloral hydrate is a narcotic or a narcotic drug within the meaning of entry 51 of List II of the Seventh Schedule. It also has intoxicating effect when mixed with liquor and so is an intoxicating drug within the meaning of the amended Act.15. The appellant also relies on the Medicinal and Toiler Preparations (Excise Duties) Act, No. 16 of 1955, in this Court. It is true that the appellant stated in its writ petition that it was holding a licence under the 1955-Act; but there was no clear averment in the petition that chloral hydrate was being manufactured as a medicinal preparation under the 1955-Act. The licence which has been produced shows that chloral hydrate is being manufactured under the Drugs Act and the rules framed thereunder. Further the judgment of the High Court shows that no argument was raised before it to the effect that chloral hydrate was a medicinal preparation under the 1955-Act. In the circumstances we are not prepared to allow the appellant to raise this point for the first time before us, even though there was some kind of denial on this point by the State Government in its affidavit to which we have already referred.16. | 0[ds]We are therefore of opinion that the introduction of the Dangerous Drugs Act in the Part B State of Hyderabad in 1950 did not result in complete effacement of the 1333-F Act. It remained alive even so far as opium, charas, bhang and ganja were concerned for the purpose of collection of duties of excise thereon. It also remained alive with respect to other substances which might be notified as intoxicating drugs under the 1333-F Act. If there was any such notification between 1924 and 1950 that notification would remain valid and the 1333-F Act would apply to it. If there was no such notification, the 1333-F Act would remain on the statute book as a conditional statute under which a notification in respect of any substance could be issued. The argument that the introduction of he Dangerous Drugs Act in 1950 completely repealed the 1333-F Act has no force and mustamended Act is also clearly in excise Act as well be clear from the definition of "intoxicating drugs revenue" in S. 2 (2) which means revenue from any duty, fee, tax, fine or confiscation imposed or ordered under the provisions of this Act. It was therefore open to the State Government to declare by notification any substance as an intoxicating drug within the meaning of the Act provided it was an intoxicating and narcotic substance. If such a declaration is made the substance will be liable to excise duty under the amended Act and the Rules framed thereunder and will be liable to such incidental control as may be necessary for the collection of duties. Further, drugs being in the Concurrent List, the provisions of the 1953 amendment Act will also be a law under item 19 of List III and will be in addition to the Drugs Act of 1940 by virtue of S. 2 thereof. Now it appears that chloral hydrate has been notified by the Government of Andhra Pradesh as an intoxicating drug within the meaning of the amended Act. It was thereafter that the rules were framed. The Rules provide for the manufacture of chloral hydrate under a licence and for payment of duties of excise of Rs. 500/- per year on such manufacture. They also provide for possession, sale, import, export and transport. If chloral hydrate is a narcotic drug or a narcotic within the meaning of entry 51 of List II of the Seventh Schedule and is an intoxicating drug and narcotic substance within the meaning of S. 2 (1) (iv) of the amended Act, it could be notified under the amended Act and on such notification it would be liable to excise duty and to such incidental control as may be necessary for the purpose of collection of excise duty. We are in the present case mainly concerned with the grant of licence and imposition of excise duty of Rs. 500/- per annum. If chloral hydrate is an intoxicating and narcotic substance, the rules could be framed with respect to its control and the appellant could be asked to take out a licence and pay excise duty or the manufacture thereof, even though chloral hydrate may be a drug which is controlled under the Drugs Act.The appellant also relies on the Medicinal and Toiler Preparations (Excise Duties) Act, No. 16 of 1955, in this Court. It is true that the appellant stated in its writ petition that it was holding a licence under the 1955-Act; but there was no clear averment in the petition that chloral hydrate was being manufactured as a medicinal preparation under the 1955-Act. The licence which has been produced shows that chloral hydrate is being manufactured under the Drugs Act and the rules framed thereunder. Further the judgment of the High Court shows that no argument was raised before it to the effect that chloral hydrate was a medicinal preparation under the 1955-Act. In the circumstances we are not prepared to allow the appellant to raise this point for the first time before us, even though there was some kind of denial on this point by the State Government in its affidavit to which we have already referred. | 0 | 4,444 | 745 | ### 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:
notification any substance as an intoxicating drug within the meaning of the Act provided it was an intoxicating and narcotic substance. If such a declaration is made the substance will be liable to excise duty under the amended Act and the Rules framed thereunder and will be liable to such incidental control as may be necessary for the collection of duties. Further, drugs being in the Concurrent List, the provisions of the 1953 amendment Act will also be a law under item 19 of List III and will be in addition to the Drugs Act of 1940 by virtue of S. 2 thereof. Now it appears that chloral hydrate has been notified by the Government of Andhra Pradesh as an intoxicating drug within the meaning of the amended Act. It was thereafter that the rules were framed. The Rules provide for the manufacture of chloral hydrate under a licence and for payment of duties of excise of Rs. 500/- per year on such manufacture. They also provide for possession, sale, import, export and transport. If chloral hydrate is a narcotic drug or a narcotic within the meaning of entry 51 of List II of the Seventh Schedule and is an intoxicating drug and narcotic substance within the meaning of S. 2 (1) (iv) of the amended Act, it could be notified under the amended Act and on such notification it would be liable to excise duty and to such incidental control as may be necessary for the purpose of collection of excise duty. We are in the present case mainly concerned with the grant of licence and imposition of excise duty of Rs. 500/- per annum. If chloral hydrate is an intoxicating and narcotic substance, the rules could be framed with respect to its control and the appellant could be asked to take out a licence and pay excise duty or the manufacture thereof, even though chloral hydrate may be a drug which is controlled under the Drugs Act.14. The case of the State Government in this connection is that chloral hydrate is a narcotic drug or a narcotic within the meaning of entry 51 of List II of the Seventh Schedule. Its further case is that it increases intoxication if mixed with liquor and that it is being produced in large quantities in order that it may be mixed with liquor. That is the reason why the State has framed the rules to control the production of chloral hydrate. The appellant in its writ petition admitted that chloral hydrate was used in small doses as a hypnotic and sedative. Now the dictionary meaning of the word "narcotic" is a substance which relieves pain, produces sleep, and in large doses brings on stupor, coma, and even death, as opium, hemlock, alcohol etc. Obviously, therefore, if chloral hydrate is hypnotic and sedative as admitted by the appellant, it would be a narcotic. The appellant however relies on the statement in the affidavit filed on behalf of the State to show that chloral hydrate is not a narcotic or a narcotic drug within the meaning of entry 51 of List II, for if it is not a narcotic or a narcotic drug within the meaning no duty of excise can be imposed by the State legislature thereon. The part of the affidavit on behalf of the State relied upon by the appellant was dealing with a vague allegation of the appellant that chloral hydrate was a medicinal preparation. In that connection it was submitted on behalf of the State that chloral hydrate was not a medicinal or toilet preparation coming within the definition of the Medicinal and Toiler Preparations (Excise Duties) Act, 16 of 1955 "as this substance in a finished form does not contain either alcohol opium, Indian hemp or other narcotic drug or narcotics". These last word were taken from the schedule to the Act of 1955 which mentions any medicinal preparation not containing alcohol but containing opium, Indian hemp or other narcotic drug or narcotic. In the 1955-Act narcotic drug or narcotic has been defined as meaning a substance (other than alcohol) which when swallowed or inhaled by, or injected into, a human being induces drowsiness, sleep, stupefaction or insensibility in the human being and which is a dangerous drug within the meaning of the Dangerous Drugs Act, 1930. Obviously, therefore, the words "narcotic drug" and "narcotic" used in the 1955-Act have a special meaning and this was all that was intended when in the affidavit filed by the State these words were used. But all narcotics or narcotic drugs are not covered by the Dangerous Drugs Act and there can be narcotics and narcotic drugs which are not covered by the Dangerous Drugs Act.There can be no other conclusion on the evidence in the present case that chloral hydrate is a narcotic or a narcotic drug within the meaning of entry 51 of List II of the Seventh Schedule. It also has intoxicating effect when mixed with liquor and so is an intoxicating drug within the meaning of the amended Act.15. The appellant also relies on the Medicinal and Toiler Preparations (Excise Duties) Act, No. 16 of 1955, in this Court. It is true that the appellant stated in its writ petition that it was holding a licence under the 1955-Act; but there was no clear averment in the petition that chloral hydrate was being manufactured as a medicinal preparation under the 1955-Act. The licence which has been produced shows that chloral hydrate is being manufactured under the Drugs Act and the rules framed thereunder. Further the judgment of the High Court shows that no argument was raised before it to the effect that chloral hydrate was a medicinal preparation under the 1955-Act. In the circumstances we are not prepared to allow the appellant to raise this point for the first time before us, even though there was some kind of denial on this point by the State Government in its affidavit to which we have already referred.16.
### Response:
0
### Explanation:
We are therefore of opinion that the introduction of the Dangerous Drugs Act in the Part B State of Hyderabad in 1950 did not result in complete effacement of the 1333-F Act. It remained alive even so far as opium, charas, bhang and ganja were concerned for the purpose of collection of duties of excise thereon. It also remained alive with respect to other substances which might be notified as intoxicating drugs under the 1333-F Act. If there was any such notification between 1924 and 1950 that notification would remain valid and the 1333-F Act would apply to it. If there was no such notification, the 1333-F Act would remain on the statute book as a conditional statute under which a notification in respect of any substance could be issued. The argument that the introduction of he Dangerous Drugs Act in 1950 completely repealed the 1333-F Act has no force and mustamended Act is also clearly in excise Act as well be clear from the definition of "intoxicating drugs revenue" in S. 2 (2) which means revenue from any duty, fee, tax, fine or confiscation imposed or ordered under the provisions of this Act. It was therefore open to the State Government to declare by notification any substance as an intoxicating drug within the meaning of the Act provided it was an intoxicating and narcotic substance. If such a declaration is made the substance will be liable to excise duty under the amended Act and the Rules framed thereunder and will be liable to such incidental control as may be necessary for the collection of duties. Further, drugs being in the Concurrent List, the provisions of the 1953 amendment Act will also be a law under item 19 of List III and will be in addition to the Drugs Act of 1940 by virtue of S. 2 thereof. Now it appears that chloral hydrate has been notified by the Government of Andhra Pradesh as an intoxicating drug within the meaning of the amended Act. It was thereafter that the rules were framed. The Rules provide for the manufacture of chloral hydrate under a licence and for payment of duties of excise of Rs. 500/- per year on such manufacture. They also provide for possession, sale, import, export and transport. If chloral hydrate is a narcotic drug or a narcotic within the meaning of entry 51 of List II of the Seventh Schedule and is an intoxicating drug and narcotic substance within the meaning of S. 2 (1) (iv) of the amended Act, it could be notified under the amended Act and on such notification it would be liable to excise duty and to such incidental control as may be necessary for the purpose of collection of excise duty. We are in the present case mainly concerned with the grant of licence and imposition of excise duty of Rs. 500/- per annum. If chloral hydrate is an intoxicating and narcotic substance, the rules could be framed with respect to its control and the appellant could be asked to take out a licence and pay excise duty or the manufacture thereof, even though chloral hydrate may be a drug which is controlled under the Drugs Act.The appellant also relies on the Medicinal and Toiler Preparations (Excise Duties) Act, No. 16 of 1955, in this Court. It is true that the appellant stated in its writ petition that it was holding a licence under the 1955-Act; but there was no clear averment in the petition that chloral hydrate was being manufactured as a medicinal preparation under the 1955-Act. The licence which has been produced shows that chloral hydrate is being manufactured under the Drugs Act and the rules framed thereunder. Further the judgment of the High Court shows that no argument was raised before it to the effect that chloral hydrate was a medicinal preparation under the 1955-Act. In the circumstances we are not prepared to allow the appellant to raise this point for the first time before us, even though there was some kind of denial on this point by the State Government in its affidavit to which we have already referred.
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State of Rajasthan and Others Vs. Nenu Ram | supplying and fixing wooden windows and doors together with frames and painting them when the construction of the police lines building took place at a place called Pali.2. The respondent is an approved contractor of the Public Works Department of the State. Tenders were invited by the Chief Engineer for doing the work mentioned above in April or May, 1958. The respondents tender being the lowest was accepted by the Executive Engineer by means of a letter dated July 17, 1958, wherein it was stated "the chowkhats will have to be supplied and fixed at site along with the masonry work". The amount which was payable for the entire work was Rs. 1, 81, 528. While making the assessment for the year 1959-60 the Sales Tax Officer was of the view that the total sales made by the respondent amounted to Rs. 1, 97, 212. The position taken up by the respondent was that the making of doors and windows as also the frames was a part of a single and indivisible works contract and as such no tax was payable. The Sales Tax Officer, however, did not accept this contention and held the respondent liable for payment of tax on sales of materials of the value already stated, the actual demand created being for Rs. 6, 314.07, on the above turnover. The respondent preferred an appeal to the Deputy Commissioner, Excise and Taxation, but the appeal was dismissed because the respondents prayer for permission to file it without depositing the tax was not acceded to. The respondent then filed a petition in the High Court under article 226 of the Constitution.3. In the High Court a good deal of argument proceeded on the maintainability of the writ petition. The appellant contended, inter alia, that the Rajasthan Sales Tax Act, hereinafter called the "Act", was a comprehensive and self-contained enactment which provided for a complete set of remedies for the assessee to get his grievances redressed. As the respondent had failed to avail of those remedies the High Court should not grant relief in exercise of its extraordinary writ jurisdiction. The High Court was of the opinion that the present case was one of levy and and recovery of tax which was entirely illegal and therefore the court was duty bound to give the necessary relief to the assessee even if he had not availed of the statutory remedies open to him under the Act.Before the High Court the controversy was confined to a turnover of Rs. 1, 81, 528 only. After considering the relevant documents and other evidence the High Court came to the conclusion that "the contract in question was a single and indivisible contract for the supply and fixing of wooden doors on the spot and that this contract was given and taken for an inclusive price". It was found that the goods were not sold as movables and property in them was to pass only when the wooden chowkhats and windows etc. were fixed on the site4. For the appellant urged before us that the contract was one of sale or was a combination of two distinct agreements, one for sale and purchase of movable chattels and the other for supply of services and labour to fix the movables at the site. We are unable to agree. On the documents and other relevant facts and circumstances the High Court was fully justified in coming to the conclusion at which it arrived that the contract was one and indivisible. It hardly made any difference if it was mentioned in the letter dated July 17, 1958, that the chowkhats were to be supplied and fixed at site along with the masonry work which meant that the same had to be done by the respondent. In the certificate of the Executive Engineer dated December 16, 1960, which was produced by the respondent before the Sales Tax Officer it was mentioned, inter alia, that the rate paid to the respondent as per sanctioned schedule of the rates of the department was for wood work, that is "for completed item of wood, i.e., for supplying and fixing both". It is obvious that the rates which were charged were inclusive of the price of the materials and the wages or charges for fixing the windows and doors etc. at the site. In State of Rajasthan v. Man Industrial Corporation Ltd. [Civil Appeal No. 812 of 1966; since reported at 1969 24 S.T.C. 349] decided on February 4, 1969, this court had the occasion to consider a case where a contractor carried on the business of fabricating steel doors, windows, sashes and other goods. A tender was made by him for providing and fixing windows and composite windows of certain sizes. He had also voluntarily offered to fix the windows in the building and to make no separate charge for that service. It was contended, inter alia, on behalf of the State in that case that the contract was for sale of windows and the turnover in respect of such sale was liable to tax. After a careful consideration to the relevant case law the test was laid down in these words :"The test in each case is whether the object of the party sought to be taxed is that the chattel as chattel passes to the other party and the services rendered in connection with the installation are under a separate contract or are incidental to the execution of the contract of sale."5. In that case it was held that the primary undertaking of the contractor was not merely to supply the windows but to fix the windows. If the windows were not properly fixed the contract could not be complete. The view of the High Court was accepted that it was only upon the fixing of the windows-leaves and when the window-leaves had become a part of the building construction that the property in the goods passed under the terms of the contract. A similar position obtains in the present case.6. | 0[ds]We are unable to agree. On the documents and other relevant facts and circumstances the High Court was fully justified in coming to the conclusion at which it arrived that the contract was one and indivisible. It hardly made any difference if it was mentioned in the letter dated July 17, 1958, that the chowkhats were to be supplied and fixed at site along with the masonry work which meant that the same had to be done by the respondent. In the certificate of the Executive Engineer dated December 16, 1960, which was produced by the respondent before the Sales Tax Officer it was mentioned, inter alia, that the rate paid to the respondent as per sanctioned schedule of the rates of the department was for wood work, that is "for completed item of wood, i.e., for supplying and fixing both". It is obvious that the rates which were charged were inclusive of the price of the materials and the wages or charges for fixing the windows and doors etc. at theState of Rajasthan v. Man Industrial Corporation Ltd. [Civil Appeal No. 812 of 1966; since reported at 1969 24 S.T.C. 349] decided on February 4, 1969, this court had the occasion to consider a case where a contractor carried on the business of fabricating steel doors, windows, sashes and other goods. A tender was made by him for providing and fixing windows and composite windows of certain sizes. He had also voluntarily offered to fix the windows in the building and to make no separate charge for that service. It was contended, inter alia, on behalf of the State in that case that the contract was for sale of windows and the turnover in respect of such sale was liable to tax. After a careful consideration to the relevant case law the test was laid down in these wordstest in each case is whether the object of the party sought to be taxed is that the chattel as chattel passes to the other party and the services rendered in connection with the installation are under a separate contract or are incidental to the execution of the contract ofthat case it was held that the primary undertaking of the contractor was not merely to supply the windows but to fix the windows. If the windows were not properly fixed the contract could not be complete. The view of the High Court was accepted that it was only upon the fixing of the windows-leaves and when the window-leaves had become a part of the building construction that the property in the goods passed under the terms of the contract. A similar position obtains in the present case. | 0 | 1,121 | 485 | ### 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:
supplying and fixing wooden windows and doors together with frames and painting them when the construction of the police lines building took place at a place called Pali.2. The respondent is an approved contractor of the Public Works Department of the State. Tenders were invited by the Chief Engineer for doing the work mentioned above in April or May, 1958. The respondents tender being the lowest was accepted by the Executive Engineer by means of a letter dated July 17, 1958, wherein it was stated "the chowkhats will have to be supplied and fixed at site along with the masonry work". The amount which was payable for the entire work was Rs. 1, 81, 528. While making the assessment for the year 1959-60 the Sales Tax Officer was of the view that the total sales made by the respondent amounted to Rs. 1, 97, 212. The position taken up by the respondent was that the making of doors and windows as also the frames was a part of a single and indivisible works contract and as such no tax was payable. The Sales Tax Officer, however, did not accept this contention and held the respondent liable for payment of tax on sales of materials of the value already stated, the actual demand created being for Rs. 6, 314.07, on the above turnover. The respondent preferred an appeal to the Deputy Commissioner, Excise and Taxation, but the appeal was dismissed because the respondents prayer for permission to file it without depositing the tax was not acceded to. The respondent then filed a petition in the High Court under article 226 of the Constitution.3. In the High Court a good deal of argument proceeded on the maintainability of the writ petition. The appellant contended, inter alia, that the Rajasthan Sales Tax Act, hereinafter called the "Act", was a comprehensive and self-contained enactment which provided for a complete set of remedies for the assessee to get his grievances redressed. As the respondent had failed to avail of those remedies the High Court should not grant relief in exercise of its extraordinary writ jurisdiction. The High Court was of the opinion that the present case was one of levy and and recovery of tax which was entirely illegal and therefore the court was duty bound to give the necessary relief to the assessee even if he had not availed of the statutory remedies open to him under the Act.Before the High Court the controversy was confined to a turnover of Rs. 1, 81, 528 only. After considering the relevant documents and other evidence the High Court came to the conclusion that "the contract in question was a single and indivisible contract for the supply and fixing of wooden doors on the spot and that this contract was given and taken for an inclusive price". It was found that the goods were not sold as movables and property in them was to pass only when the wooden chowkhats and windows etc. were fixed on the site4. For the appellant urged before us that the contract was one of sale or was a combination of two distinct agreements, one for sale and purchase of movable chattels and the other for supply of services and labour to fix the movables at the site. We are unable to agree. On the documents and other relevant facts and circumstances the High Court was fully justified in coming to the conclusion at which it arrived that the contract was one and indivisible. It hardly made any difference if it was mentioned in the letter dated July 17, 1958, that the chowkhats were to be supplied and fixed at site along with the masonry work which meant that the same had to be done by the respondent. In the certificate of the Executive Engineer dated December 16, 1960, which was produced by the respondent before the Sales Tax Officer it was mentioned, inter alia, that the rate paid to the respondent as per sanctioned schedule of the rates of the department was for wood work, that is "for completed item of wood, i.e., for supplying and fixing both". It is obvious that the rates which were charged were inclusive of the price of the materials and the wages or charges for fixing the windows and doors etc. at the site. In State of Rajasthan v. Man Industrial Corporation Ltd. [Civil Appeal No. 812 of 1966; since reported at 1969 24 S.T.C. 349] decided on February 4, 1969, this court had the occasion to consider a case where a contractor carried on the business of fabricating steel doors, windows, sashes and other goods. A tender was made by him for providing and fixing windows and composite windows of certain sizes. He had also voluntarily offered to fix the windows in the building and to make no separate charge for that service. It was contended, inter alia, on behalf of the State in that case that the contract was for sale of windows and the turnover in respect of such sale was liable to tax. After a careful consideration to the relevant case law the test was laid down in these words :"The test in each case is whether the object of the party sought to be taxed is that the chattel as chattel passes to the other party and the services rendered in connection with the installation are under a separate contract or are incidental to the execution of the contract of sale."5. In that case it was held that the primary undertaking of the contractor was not merely to supply the windows but to fix the windows. If the windows were not properly fixed the contract could not be complete. The view of the High Court was accepted that it was only upon the fixing of the windows-leaves and when the window-leaves had become a part of the building construction that the property in the goods passed under the terms of the contract. A similar position obtains in the present case.6.
### Response:
0
### Explanation:
We are unable to agree. On the documents and other relevant facts and circumstances the High Court was fully justified in coming to the conclusion at which it arrived that the contract was one and indivisible. It hardly made any difference if it was mentioned in the letter dated July 17, 1958, that the chowkhats were to be supplied and fixed at site along with the masonry work which meant that the same had to be done by the respondent. In the certificate of the Executive Engineer dated December 16, 1960, which was produced by the respondent before the Sales Tax Officer it was mentioned, inter alia, that the rate paid to the respondent as per sanctioned schedule of the rates of the department was for wood work, that is "for completed item of wood, i.e., for supplying and fixing both". It is obvious that the rates which were charged were inclusive of the price of the materials and the wages or charges for fixing the windows and doors etc. at theState of Rajasthan v. Man Industrial Corporation Ltd. [Civil Appeal No. 812 of 1966; since reported at 1969 24 S.T.C. 349] decided on February 4, 1969, this court had the occasion to consider a case where a contractor carried on the business of fabricating steel doors, windows, sashes and other goods. A tender was made by him for providing and fixing windows and composite windows of certain sizes. He had also voluntarily offered to fix the windows in the building and to make no separate charge for that service. It was contended, inter alia, on behalf of the State in that case that the contract was for sale of windows and the turnover in respect of such sale was liable to tax. After a careful consideration to the relevant case law the test was laid down in these wordstest in each case is whether the object of the party sought to be taxed is that the chattel as chattel passes to the other party and the services rendered in connection with the installation are under a separate contract or are incidental to the execution of the contract ofthat case it was held that the primary undertaking of the contractor was not merely to supply the windows but to fix the windows. If the windows were not properly fixed the contract could not be complete. The view of the High Court was accepted that it was only upon the fixing of the windows-leaves and when the window-leaves had become a part of the building construction that the property in the goods passed under the terms of the contract. A similar position obtains in the present case.
|
Seth R. Dalmia Vs. Commissioner of Income Tax, Delhi | 296 (All) , where it was held that any expenditure incurred for preservation or protection of a capital asset was revenue in nature. The court held that legal and travelling expenses incurred by the assessee for protecting dividend income and to ensure the prospective dividend earning capacity were clearly allowable under section 12(2) of the Act. We find ourselves in complete agreement with the view taken by the Allahabad High Court in that case. 9. In Nirmala M. Doshi v. Commissioner of Income-tax [1971] 82 ITR 648 (Bom) , the Bombay High Court held that payment of interest for earning dividend income was deductible under section 12(2) of the Act. 10. In Commissioner of Income-tax v. H. H. Maharani Vijaykuverba Saheb of Morvi [1975] 100 ITR 67 (Bom), a Division Bench of the Bombay High Court held that the deduction which is permissible under sub-section (2) of section 12 is an expenditure incurred solely for the purpose of making or earning the income which has been subjected to tax and the dominant purpose of the expenditure incurred must be to earn income. It was further held that the connection between the expenditure and the earning of income need not be direct, and even an indirect connection could prove the nexus between the expenditure incurred and the income. We fully agree with the view taken by the Bombay High Court. 11. In view of the direct decision of this court in Eastern Investments Ltds. case [1951] 20 ITR 1 (SC) , it is not necessary for us to multiply authorities. Summarising, therefore, the facts of the present case, the position which emerges is as follows:"(1) that a genuine and bona fide contract had been entered into between the assessee and the bank for transfer of large number of shares to the assessee; (2) that the assessee in pursuance of this agreement had raised a loan of Rs. 44, 14, 990 from the bank in order to acquire the shares and had paid interest of Rs. 2, 04, 744 for this purpose; and (3) as a result of the aforesaid acquisition, under clause (3) of the agreement the dividends, rights, bonuses, etc., held by the bank were held for the benefit of the assessee after they were declared. It is obvious that if the assessee would not have paid the interest on the loan raised by him he would not have been able to get the dividend income." 12. In these circumstances, therefore, there was a direct nexus between the expenditure of Rs. 2, 04, 744 incurred by the assessee as interest and the earning of the dividend income. The assessee has clearly established that the expenditure aforesaid was incurred solely and wholly for the purpose of earning the bonuses and dividend income. As the shares were not the stock-in-trade of the appellant it could not be said that the interest paid by the assessee to the bank was an expenditure of a capital nature, not was there any material to show that the expenditure incurred by the assessee amounted to his personal expenses. In these circumstances, we are satisfied that the case of the appellant in paying the interest amounting to Rs. 2, 04, 744 falls clearly within section 12(2) of the Act and the conditions of the aforesaid provision being fulfilled, the assessee was in law entitled to deduction of the amount of Rs. 2, 04, 744 under section 12(2) of the Act. We are, therefore, of the opinion that the High Court and the Tribunal were wrong in taking the view that the income-tax authorities rightly disallowed the amount of Rs. 2, 04, 744 as claimed by the assessee. We are clearly of the opinion that this amount was a permissible deduction under section 12(2) of the Act and should have been allowed by the income-tax authorities. In these circumstances, therefore, we hold on question No. (1) that both the Tribunal and the High Court should have held that the assessees claim for deduction of interest amounting to Rs. 2, 04, 744 was wrongly rejected by the income-tax authoritiesSo far as question No. (3) relating to damages of Rs. 1, 05, 000 paid to the bank by the assessee for non-delivery of the shares in concerned, we are unable to agree with counsel for the appellant that this was a deductible expenditure. We have already pointed out that the assessees main business was not dealing in shares and, therefore, the damages paid were due to his own default and would, therefore, be a capital expenditure rather than a revenue one. The High Court and the Tribunal were right in disallowing this amount. 13. As regards question No. (4) the position is somewhat obscure. While the Tribunal had deleted the amount of Rs. 95, 664 from the total income of the assessee, the High Court also agreed with the Tribunal and answered this question in the affirmative, against the revenue. Learned counsel for the revenue has, however, submitted that if we are of the opinion that the appellant should be entitled to the deduction of Rs. 2, 04, 744 under section 12(2) of the Act, then it automatically follows that he cannot claim exemption in respect of the dividend income. In our opinion the argument of Mr. V. P. Raman, learned counsel for the revenue, is well founded and must prevail. Even Mr. Bishamber Lal appearing for the assessee/appellant was fair enough to concede that if we hold that the interest of Rs. 2, 04, 744 was a permissible deduction under section 12(2) of the Act then he would not press his claim before the income-tax authorities for deletion of the dividend income of Rs. 95, 664 and he would have no objection if this court sets aside this deletion. In this view of the matter we set aside the order of the High Court as also that of the Tribunal deleting the amount of Rs. 95, 664 which will be included in the total income of the assessee. 14. | 1[ds]A perusal of the statement made in this paragraph manifestly reveals that even if the shares are not taken delivery of by the assessee, the dividends, rights, bonuses, etc., which may be declared after that date were to be held by the bank for the benefit of the purchaser. Thus, the principle which is deducible from the decision of the Privy Council in J. A. H. Chinoys case AIR 1950 PC 90 fully applies to the facts of the present caseAn analysis of this sub-section would show that in computing the income under this head the assessee is entitled to deduction in respect of the expenditure incurred solely for the purpose of earning such income, provided the expenditure is not of a capital nature and does not include any personal expenses incurred by the assesseeIn the present case also it is not disputed before us that the agreement entered into between the parties was a genuine one. In fact the Tribunal had also held that the agreement was actually acted upon. Once this was so, then the interest which the assessee paid on the loan of Rs. 44, 14, 990 which came to Rs. 2, 04, 744 was really paid for the purpose of earning income, namely, the dividends, bonuses, etc., which were held by the bank for the benefit of the assessee. The interest of Rs. 2, 04, 744 paid by the appellant could not be said to be of a capital nature, nor could it be deemed to be personal expenses incurred by the assessee. In these circumstances, therefore, the essential ingredients of section 12(2) are fully satisfied in this case and, on the authority of this court in Eastern Investments Ltd.s case [1951] 20 ITR 1 (SC) , the appellants case squarely falls within the four corners of section 12(2) as a result of which the amount of interest of Rs. 2, 04, 744 was a permissible deduction under section 12(2) of the ActIn view of the direct decision of this court in Eastern Investments Ltds. case [1951] 20 ITR 1 (SC) , it is not necessary for us to multiply authorities. Summarising, therefore, the facts of the present case, the position which emerges is as follows:(1) that a genuine and bona fide contract had been entered into between the assessee and the bank for transfer of large number of shares to the) that the assessee in pursuance of this agreement had raised a loan of Rs. 44, 14, 990 from the bank in order to acquire the shares and had paid interest of Rs. 2, 04, 744 for this purpose; and(3) as a result of the aforesaid acquisition, under clause (3) of the agreement the dividends, rights, bonuses, etc., held by the bank were held for the benefit of the assessee after they were declared. It is obvious that if the assessee would not have paid the interest on the loan raised by him he would not have been able to get the dividend incomeIn these circumstances, therefore, there was a direct nexus between the expenditure of Rs. 2, 04, 744 incurred by the assessee as interest and the earning of the dividend income. The assessee has clearly established that the expenditure aforesaid was incurred solely and wholly for the purpose of earning the bonuses and dividend income. As the shares were not the stock-in-trade of the appellant it could not be said that the interest paid by the assessee to the bank was an expenditure of a capital nature, not was there any material to show that the expenditure incurred by the assessee amounted to his personal expenses. In these circumstances, we are satisfied that the case of the appellant in paying the interest amounting to Rs. 2, 04, 744 falls clearly within section 12(2) of the Act and the conditions of the aforesaid provision being fulfilled, the assessee was in law entitled to deduction of the amount of Rs. 2, 04, 744 under section 12(2) of the Act. We are, therefore, of the opinion that the High Court and the Tribunal were wrong in taking the view that the income-tax authorities rightly disallowed the amount of Rs. 2, 04, 744 as claimed by the assessee. We are clearly of the opinion that this amount was a permissible deduction under section 12(2) of the Act and should have been allowed by the income-tax authorities. In these circumstances, therefore, we hold on question No. (1) that both the Tribunal and the High Court should have held that the assessees claim for deduction of interest amounting to Rs. 2, 04, 744 was wrongly rejected by the income-tax authoritiesSo far as question No. (3) relating to damages of Rs. 1, 05, 000 paid to the bank by the assessee for non-delivery of the shares in concerned, we are unable to agree with counsel for the appellant that this was a deductible expenditure. We have already pointed out that the assessees main business was not dealing in shares and, therefore, the damages paid were due to his own default and would, therefore, be a capital expenditure rather than a revenue one. The High Court and the Tribunal were right in disallowing this amountAs regards question No. (4) the position is somewhat obscure. While the Tribunal had deleted the amount of Rs. 95, 664 from the total income of the assessee, the High Court also agreed with the Tribunal and answered this question in the affirmative, against the revenue. Learned counsel for the revenue has, however, submitted that if we are of the opinion that the appellant should be entitled to the deduction of Rs. 2, 04, 744 under section 12(2) of the Act, then it automatically follows that he cannot claim exemption in respect of the dividend income. In our opinion the argument of Mr. V. P. Raman, learned counsel for the revenue, is well founded and must prevail. Even Mr. Bishamber Lal appearing for the assessee/appellant was fair enough to concede that if we hold that the interest of Rs. 2, 04, 744 was a permissible deduction under section 12(2) of the Act then he would not press his claim before the income-tax authorities for deletion of the dividend income of Rs. 95, 664 and he would have no objection if this court sets aside this deletion. In this view of the matter we set aside the order of the High Court as also that of the Tribunal deleting the amount of Rs. 95, 664 which will be included in the total income of the assessee. | 1 | 4,788 | 1,262 | ### 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:
296 (All) , where it was held that any expenditure incurred for preservation or protection of a capital asset was revenue in nature. The court held that legal and travelling expenses incurred by the assessee for protecting dividend income and to ensure the prospective dividend earning capacity were clearly allowable under section 12(2) of the Act. We find ourselves in complete agreement with the view taken by the Allahabad High Court in that case. 9. In Nirmala M. Doshi v. Commissioner of Income-tax [1971] 82 ITR 648 (Bom) , the Bombay High Court held that payment of interest for earning dividend income was deductible under section 12(2) of the Act. 10. In Commissioner of Income-tax v. H. H. Maharani Vijaykuverba Saheb of Morvi [1975] 100 ITR 67 (Bom), a Division Bench of the Bombay High Court held that the deduction which is permissible under sub-section (2) of section 12 is an expenditure incurred solely for the purpose of making or earning the income which has been subjected to tax and the dominant purpose of the expenditure incurred must be to earn income. It was further held that the connection between the expenditure and the earning of income need not be direct, and even an indirect connection could prove the nexus between the expenditure incurred and the income. We fully agree with the view taken by the Bombay High Court. 11. In view of the direct decision of this court in Eastern Investments Ltds. case [1951] 20 ITR 1 (SC) , it is not necessary for us to multiply authorities. Summarising, therefore, the facts of the present case, the position which emerges is as follows:"(1) that a genuine and bona fide contract had been entered into between the assessee and the bank for transfer of large number of shares to the assessee; (2) that the assessee in pursuance of this agreement had raised a loan of Rs. 44, 14, 990 from the bank in order to acquire the shares and had paid interest of Rs. 2, 04, 744 for this purpose; and (3) as a result of the aforesaid acquisition, under clause (3) of the agreement the dividends, rights, bonuses, etc., held by the bank were held for the benefit of the assessee after they were declared. It is obvious that if the assessee would not have paid the interest on the loan raised by him he would not have been able to get the dividend income." 12. In these circumstances, therefore, there was a direct nexus between the expenditure of Rs. 2, 04, 744 incurred by the assessee as interest and the earning of the dividend income. The assessee has clearly established that the expenditure aforesaid was incurred solely and wholly for the purpose of earning the bonuses and dividend income. As the shares were not the stock-in-trade of the appellant it could not be said that the interest paid by the assessee to the bank was an expenditure of a capital nature, not was there any material to show that the expenditure incurred by the assessee amounted to his personal expenses. In these circumstances, we are satisfied that the case of the appellant in paying the interest amounting to Rs. 2, 04, 744 falls clearly within section 12(2) of the Act and the conditions of the aforesaid provision being fulfilled, the assessee was in law entitled to deduction of the amount of Rs. 2, 04, 744 under section 12(2) of the Act. We are, therefore, of the opinion that the High Court and the Tribunal were wrong in taking the view that the income-tax authorities rightly disallowed the amount of Rs. 2, 04, 744 as claimed by the assessee. We are clearly of the opinion that this amount was a permissible deduction under section 12(2) of the Act and should have been allowed by the income-tax authorities. In these circumstances, therefore, we hold on question No. (1) that both the Tribunal and the High Court should have held that the assessees claim for deduction of interest amounting to Rs. 2, 04, 744 was wrongly rejected by the income-tax authoritiesSo far as question No. (3) relating to damages of Rs. 1, 05, 000 paid to the bank by the assessee for non-delivery of the shares in concerned, we are unable to agree with counsel for the appellant that this was a deductible expenditure. We have already pointed out that the assessees main business was not dealing in shares and, therefore, the damages paid were due to his own default and would, therefore, be a capital expenditure rather than a revenue one. The High Court and the Tribunal were right in disallowing this amount. 13. As regards question No. (4) the position is somewhat obscure. While the Tribunal had deleted the amount of Rs. 95, 664 from the total income of the assessee, the High Court also agreed with the Tribunal and answered this question in the affirmative, against the revenue. Learned counsel for the revenue has, however, submitted that if we are of the opinion that the appellant should be entitled to the deduction of Rs. 2, 04, 744 under section 12(2) of the Act, then it automatically follows that he cannot claim exemption in respect of the dividend income. In our opinion the argument of Mr. V. P. Raman, learned counsel for the revenue, is well founded and must prevail. Even Mr. Bishamber Lal appearing for the assessee/appellant was fair enough to concede that if we hold that the interest of Rs. 2, 04, 744 was a permissible deduction under section 12(2) of the Act then he would not press his claim before the income-tax authorities for deletion of the dividend income of Rs. 95, 664 and he would have no objection if this court sets aside this deletion. In this view of the matter we set aside the order of the High Court as also that of the Tribunal deleting the amount of Rs. 95, 664 which will be included in the total income of the assessee. 14.
### Response:
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### Explanation:
the income under this head the assessee is entitled to deduction in respect of the expenditure incurred solely for the purpose of earning such income, provided the expenditure is not of a capital nature and does not include any personal expenses incurred by the assesseeIn the present case also it is not disputed before us that the agreement entered into between the parties was a genuine one. In fact the Tribunal had also held that the agreement was actually acted upon. Once this was so, then the interest which the assessee paid on the loan of Rs. 44, 14, 990 which came to Rs. 2, 04, 744 was really paid for the purpose of earning income, namely, the dividends, bonuses, etc., which were held by the bank for the benefit of the assessee. The interest of Rs. 2, 04, 744 paid by the appellant could not be said to be of a capital nature, nor could it be deemed to be personal expenses incurred by the assessee. In these circumstances, therefore, the essential ingredients of section 12(2) are fully satisfied in this case and, on the authority of this court in Eastern Investments Ltd.s case [1951] 20 ITR 1 (SC) , the appellants case squarely falls within the four corners of section 12(2) as a result of which the amount of interest of Rs. 2, 04, 744 was a permissible deduction under section 12(2) of the ActIn view of the direct decision of this court in Eastern Investments Ltds. case [1951] 20 ITR 1 (SC) , it is not necessary for us to multiply authorities. Summarising, therefore, the facts of the present case, the position which emerges is as follows:(1) that a genuine and bona fide contract had been entered into between the assessee and the bank for transfer of large number of shares to the) that the assessee in pursuance of this agreement had raised a loan of Rs. 44, 14, 990 from the bank in order to acquire the shares and had paid interest of Rs. 2, 04, 744 for this purpose; and(3) as a result of the aforesaid acquisition, under clause (3) of the agreement the dividends, rights, bonuses, etc., held by the bank were held for the benefit of the assessee after they were declared. It is obvious that if the assessee would not have paid the interest on the loan raised by him he would not have been able to get the dividend incomeIn these circumstances, therefore, there was a direct nexus between the expenditure of Rs. 2, 04, 744 incurred by the assessee as interest and the earning of the dividend income. The assessee has clearly established that the expenditure aforesaid was incurred solely and wholly for the purpose of earning the bonuses and dividend income. As the shares were not the stock-in-trade of the appellant it could not be said that the interest paid by the assessee to the bank was an expenditure of a capital nature, not was there any material to show that the expenditure incurred by the assessee amounted to his personal expenses. In these circumstances, we are satisfied that the case of the appellant in paying the interest amounting to Rs. 2, 04, 744 falls clearly within section 12(2) of the Act and the conditions of the aforesaid provision being fulfilled, the assessee was in law entitled to deduction of the amount of Rs. 2, 04, 744 under section 12(2) of the Act. We are, therefore, of the opinion that the High Court and the Tribunal were wrong in taking the view that the income-tax authorities rightly disallowed the amount of Rs. 2, 04, 744 as claimed by the assessee. We are clearly of the opinion that this amount was a permissible deduction under section 12(2) of the Act and should have been allowed by the income-tax authorities. In these circumstances, therefore, we hold on question No. (1) that both the Tribunal and the High Court should have held that the assessees claim for deduction of interest amounting to Rs. 2, 04, 744 was wrongly rejected by the income-tax authoritiesSo far as question No. (3) relating to damages of Rs. 1, 05, 000 paid to the bank by the assessee for non-delivery of the shares in concerned, we are unable to agree with counsel for the appellant that this was a deductible expenditure. We have already pointed out that the assessees main business was not dealing in shares and, therefore, the damages paid were due to his own default and would, therefore, be a capital expenditure rather than a revenue one. The High Court and the Tribunal were right in disallowing this amountAs regards question No. (4) the position is somewhat obscure. While the Tribunal had deleted the amount of Rs. 95, 664 from the total income of the assessee, the High Court also agreed with the Tribunal and answered this question in the affirmative, against the revenue. Learned counsel for the revenue has, however, submitted that if we are of the opinion that the appellant should be entitled to the deduction of Rs. 2, 04, 744 under section 12(2) of the Act, then it automatically follows that he cannot claim exemption in respect of the dividend income. In our opinion the argument of Mr. V. P. Raman, learned counsel for the revenue, is well founded and must prevail. Even Mr. Bishamber Lal appearing for the assessee/appellant was fair enough to concede that if we hold that the interest of Rs. 2, 04, 744 was a permissible deduction under section 12(2) of the Act then he would not press his claim before the income-tax authorities for deletion of the dividend income of Rs. 95, 664 and he would have no objection if this court sets aside this deletion. In this view of the matter we set aside the order of the High Court as also that of the Tribunal deleting the amount of Rs. 95, 664 which will be included in the total income of the assessee.
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Malleshi Vs. State Of Karnataka | the High Court and submitted that the evidence has been analyzed carefully by both the trial court and the High Court and no infirmity has surfaced. It was further submitted that keeping in view the clear language of Section 364 A it is evident that the accused has been rightly convicted under Section 364 A of the IPC. 7. Section 364 A deals with Kidnapping for ransom etc. This Section reads as follows: "Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or(any foreign State or international inter-governmental organization or any other person) to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine." 8. The Section refers to both "Kidnapping" and "Abduction". Section 359 defines Kidnapping. As per the said provision there are two types of kidnapping i.e. (1) kidnapping from India; and (2) kidnapping from lawful guardianship. 9. Abduction is defined in Section 362. The provision envisages two types of abduction i.e. (1) by force or by compulsion; and/or (2) inducement by deceitful means. The object of such compulsion or inducement must be the going of the victim from any place. The case at hand falls in the second category. 10. To "Induce" means "to lead into". Deceit according to its plain dictionary meaning signifies anything intended to mislead another. It is a matter of intention and even if promise held out by the accused was fulfilled by him, the question is: whether he was acting in a bonafide manner? 11. The offence of abduction is a continuing offence. This Section was amended in 1992 by Act XLII of 1993 with effect from 22.5.1993 and it was subsequently amended in 1995 by Act XXIV of 1995 with effect from 26.5.1995. The Section provides punishment for kidnapping, abduction or detaining for ransom. 12. To attract the provisions of Section 364 A what is required to be proved is (1) that the accused kidnapped or abducted the person; and (2) kept him under detention after such kidnapping and abduction; and (3) that the kidnapping or abduction was for ransom. Strong reliance was placed on a decision of the Delhi High Court in Netra Pal vs. The State (NCT of Delhi) (2001 Crl. L.J. 1669) to contend that since the ransom demand was not conveyed to the father of PW 2, the intention to demand was not fulfilled. 13. To pay a ransom as per Blacks Law Dictionary means "to pay price or demand for ransom". The word "demand" means "to claim as ones due;" "to require"; "to ask relief"; "to summon"; "to call in Court"; "An imperative request preferred by one person to another requiring the latter to do or yield something or to abstain from some act;" An asking with authority, claiming." The definition as pointed out above would show that the demand has to be communicated. It is an imperative request or a claim made. 14. Netra Pals case (supra) was one where a child was kidnapped. The court found as a fact that since the victim was a child, demand for ransom could not have been made to him and only the demand to pay the ransom could have been made to his guardians. In that factual background it was held that the offence was not under Section 364 A but was under Section 362 of the IPC. Accordingly conviction of the accused was altered to offences relatable to Sections 363 and 365 of the IPC. 15. In the instant case as the factual position found by the trial court and the High Court goes to show, the object of abduction was for ransom. This was clearly conveyed to the victim PW-2. He was even conveyed the amount to be paid. It cannot be laid down as a strait-jacket formula that the demand for payment has to be made to a person who ultimately pays. By way of illustration it can be said that a rich business man is abducted. He is told that for his release his family members have to pay a certain amount of money; but money actually belongs to the person abducted. The payment for release is made by the persons to whom the demand is made. The demand originally is made to the person abducted or kidnapped. After making the demand to the kidnapped or abducted person merely because the demand could not be conveyed to some other person, as the accused is arrested in the meantime, does not take away the offence out of the purview of Section 364 A. It has to be seen in such a cases as to what was the object of kidnapping or abduction. The essence of abduction as noted above is causing to stay in isolation and demand for ransom. The demand in the present case has already been made by conveying it to the victim. In Netra Pals case (supra) the High Court noted that there was no demand to pay. The factual position in that case as noted above is that the victim was a child to whom no demand could have been made. In that background the High Court took the view that Section 364 A has no application as no demand has been communicated. The position factually is different here. Ultimately the question to be decided is "what was the intention? Was it demand of ransom"? There can be no definite manner in which demand is to be made. Who pays the ransom is not the determinative fact, as discussed supra.16. Above being the position, there is no infirmity in the judgment of the courts below to warrant any interference. 17. | 0[ds]. In the instant case as the factual position found by the trial court and the High Court goes to show, the object of abduction was for ransom. This was clearly conveyed to the victim PW-2. He was even conveyed the amount to be paid. It cannot be laid down as a strait-jacket formula that the demand for payment has to be made to a person who ultimately pays. By way of illustration it can be said that a rich business man is abducted. He is told that for his release his family members have to pay a certain amount of money; but money actually belongs to the person abducted. The payment for release is made by the persons to whom the demand is made. The demand originally is made to the person abducted or kidnapped. After making the demand to the kidnapped or abducted person merely because the demand could not be conveyed to some other person, as the accused is arrested in the meantime, does not take away the offence out of the purview of Section 364 A. It has to be seen in such a cases as to what was the object of kidnapping or abduction. The essence of abduction as noted above is causing to stay in isolation and demand for ransom. The demand in the present case has already been made by conveying it to the victim. In Netra Pals case (supra) the High Court noted that there was no demand to pay. The factual position in that case as noted above is that the victim was a child to whom no demand could have been made. In that background the High Court took the view that Section 364 A has no application as no demand has been communicated. The position factually is different here. Ultimately the question to be decided is "what was the intention? Was it demand of ransom"? There can be no definite manner in which demand is to be made. Who pays the ransom is not the determinative fact, as discussed supra.16. Above being the position, there is no infirmity in the judgment of the courts below to warrant any interference. | 0 | 2,199 | 396 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
### Input:
the High Court and submitted that the evidence has been analyzed carefully by both the trial court and the High Court and no infirmity has surfaced. It was further submitted that keeping in view the clear language of Section 364 A it is evident that the accused has been rightly convicted under Section 364 A of the IPC. 7. Section 364 A deals with Kidnapping for ransom etc. This Section reads as follows: "Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or(any foreign State or international inter-governmental organization or any other person) to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine." 8. The Section refers to both "Kidnapping" and "Abduction". Section 359 defines Kidnapping. As per the said provision there are two types of kidnapping i.e. (1) kidnapping from India; and (2) kidnapping from lawful guardianship. 9. Abduction is defined in Section 362. The provision envisages two types of abduction i.e. (1) by force or by compulsion; and/or (2) inducement by deceitful means. The object of such compulsion or inducement must be the going of the victim from any place. The case at hand falls in the second category. 10. To "Induce" means "to lead into". Deceit according to its plain dictionary meaning signifies anything intended to mislead another. It is a matter of intention and even if promise held out by the accused was fulfilled by him, the question is: whether he was acting in a bonafide manner? 11. The offence of abduction is a continuing offence. This Section was amended in 1992 by Act XLII of 1993 with effect from 22.5.1993 and it was subsequently amended in 1995 by Act XXIV of 1995 with effect from 26.5.1995. The Section provides punishment for kidnapping, abduction or detaining for ransom. 12. To attract the provisions of Section 364 A what is required to be proved is (1) that the accused kidnapped or abducted the person; and (2) kept him under detention after such kidnapping and abduction; and (3) that the kidnapping or abduction was for ransom. Strong reliance was placed on a decision of the Delhi High Court in Netra Pal vs. The State (NCT of Delhi) (2001 Crl. L.J. 1669) to contend that since the ransom demand was not conveyed to the father of PW 2, the intention to demand was not fulfilled. 13. To pay a ransom as per Blacks Law Dictionary means "to pay price or demand for ransom". The word "demand" means "to claim as ones due;" "to require"; "to ask relief"; "to summon"; "to call in Court"; "An imperative request preferred by one person to another requiring the latter to do or yield something or to abstain from some act;" An asking with authority, claiming." The definition as pointed out above would show that the demand has to be communicated. It is an imperative request or a claim made. 14. Netra Pals case (supra) was one where a child was kidnapped. The court found as a fact that since the victim was a child, demand for ransom could not have been made to him and only the demand to pay the ransom could have been made to his guardians. In that factual background it was held that the offence was not under Section 364 A but was under Section 362 of the IPC. Accordingly conviction of the accused was altered to offences relatable to Sections 363 and 365 of the IPC. 15. In the instant case as the factual position found by the trial court and the High Court goes to show, the object of abduction was for ransom. This was clearly conveyed to the victim PW-2. He was even conveyed the amount to be paid. It cannot be laid down as a strait-jacket formula that the demand for payment has to be made to a person who ultimately pays. By way of illustration it can be said that a rich business man is abducted. He is told that for his release his family members have to pay a certain amount of money; but money actually belongs to the person abducted. The payment for release is made by the persons to whom the demand is made. The demand originally is made to the person abducted or kidnapped. After making the demand to the kidnapped or abducted person merely because the demand could not be conveyed to some other person, as the accused is arrested in the meantime, does not take away the offence out of the purview of Section 364 A. It has to be seen in such a cases as to what was the object of kidnapping or abduction. The essence of abduction as noted above is causing to stay in isolation and demand for ransom. The demand in the present case has already been made by conveying it to the victim. In Netra Pals case (supra) the High Court noted that there was no demand to pay. The factual position in that case as noted above is that the victim was a child to whom no demand could have been made. In that background the High Court took the view that Section 364 A has no application as no demand has been communicated. The position factually is different here. Ultimately the question to be decided is "what was the intention? Was it demand of ransom"? There can be no definite manner in which demand is to be made. Who pays the ransom is not the determinative fact, as discussed supra.16. Above being the position, there is no infirmity in the judgment of the courts below to warrant any interference. 17.
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0
### Explanation:
. In the instant case as the factual position found by the trial court and the High Court goes to show, the object of abduction was for ransom. This was clearly conveyed to the victim PW-2. He was even conveyed the amount to be paid. It cannot be laid down as a strait-jacket formula that the demand for payment has to be made to a person who ultimately pays. By way of illustration it can be said that a rich business man is abducted. He is told that for his release his family members have to pay a certain amount of money; but money actually belongs to the person abducted. The payment for release is made by the persons to whom the demand is made. The demand originally is made to the person abducted or kidnapped. After making the demand to the kidnapped or abducted person merely because the demand could not be conveyed to some other person, as the accused is arrested in the meantime, does not take away the offence out of the purview of Section 364 A. It has to be seen in such a cases as to what was the object of kidnapping or abduction. The essence of abduction as noted above is causing to stay in isolation and demand for ransom. The demand in the present case has already been made by conveying it to the victim. In Netra Pals case (supra) the High Court noted that there was no demand to pay. The factual position in that case as noted above is that the victim was a child to whom no demand could have been made. In that background the High Court took the view that Section 364 A has no application as no demand has been communicated. The position factually is different here. Ultimately the question to be decided is "what was the intention? Was it demand of ransom"? There can be no definite manner in which demand is to be made. Who pays the ransom is not the determinative fact, as discussed supra.16. Above being the position, there is no infirmity in the judgment of the courts below to warrant any interference.
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Swaraj Abhiyan & Others Vs. Union of India & Others | 4th April, 2016 which is to give its report to the Special Investigating Team constituted by this Court vide order dated 4th July, 2011 in Writ Petition (Civil)No. 176 of 2009 (This issue has been dealt with in the order of this Court dated 9th October, 2017 in W.P. No.65 of 2016]).14. On merits, as depicted in the comparative statement dated 19th December, 2006 signed by the Senior Helicopter Engineer and Chief Pilot (H), on comparison of A-109 Power, B-247 and EC-135 T1, parameters of Delivery Schedule, Number of Aircrafts in India, Maintenance facility in India, Spares Inventory in India, Technical trained manpower, Engine Power, Engine Life, Operation, Maintenance and customer support and Operation at Night were in favour of A-109 Power. Letter dated 2nd January, 2007 addressed to the Director, Aviation, Government of Chhattisgarh shows that Agusta itself was not in a position to deliver the light twin engine helicopter before January, 2010. However, it stated that the same could be secured in August/September, 2007 from the distributors M/s. Sharp Ocean Investments Limited, Hong Kong at a total amount of US $ 6,315,000. Prior to this, on 29th December, 2016, recommendation was made by the Senior Engineer (H) that Agusta A-109 was suitable for operation for State Government VIP operations. Thus, for quick delivery, the State negotiated with M/s. Sharp Ocean Investments Limited. Final payment made is of 6,570,000 (Six million five hundred seventy thousand). Contention that the price of the Helicopter was US $ 5,246,000 as shown by the invoice of the Agusta Westland dated 30th October, 2007 and thus, the remaining amount was by way of commission cannot be accepted in view of contents of the Agreement dated 9th October, 2007 and the correspondence. The said agreement shows that Agusta had entered into agreement dated 24th May, 2006 for sale of Agusta Helicopter Model A-109 to Serum Institute of India Limited. The sale was assigned by the said Serum to Sharp and Sharp had made certain advance payments to Agusta. Sharp had claimed its holding charges. Agusta itself made it clear that the price was US $ 6 Million if delivery time was more. For earlier delivery, pre-sold Helicopter could be purchased from its distributor at a higher price. Thus, it cannot be said that there was an excess payment for extraneous reason. Comparison with the price at which Jharkhand proposed to purchase helicopter has no relevance as that was a deal in the year 2005 at which price the helicopter was not available at the relevant time as noted earlier. Price in Jharkhand deal was US $ 5.591 million and the said transaction is dated 5th August, 2006. Obviously, it is difficult to accept the contention that real value in the present transaction was US $ 5.246 million on 26th October, 2017 when the company itself vide letter dated 13th March, 2007 showed inability for early disposal and stated that the price was US $ 6.0 million if delivery period was more than two years.15. It cannot be disputed that the State Government was entitled to make a choice to purchase the Helicopter in question. There is nothing on record to show that the Helicopter could have been procured for lesser price. No person claiming to give a better deal has come forward. Thus, in absence of clear evidence that loss was caused to public exchequer by way of commission payment to Sharp Ocean Investments Limited which was only a route to send the payment to the son of the Chief Minister, interference by this Court is not called for. There is a tripartite agreement dated 26th October, 2007, between Sharp Ocean Investments Limited, the State of Chhatisgarh and Agusta to the effect that Sharp Ocean Investments Limited was entitled to retain payment made by it to Agusta to the extent of US $ 100,000 (As per Article 4.1.A of Agreement dated 24th May, 2006 read with Agreement dated 13th November, 2006 in favour of Sharp Ocean Investments Limited) and US $ 1,473, 800 under Article 4.1.B of the Contract. The CAG report does not attribute any extraneous consideration in the deal.16. There is no material to prima facie hold that beneficiary of transaction was Abhishak Singh. We do not consider it necessary to go into the allegation of mere procedural irregularities. We broadly find that no case is made out for interference by this Court for issuing a direction as sought in absence of allegation of extraneous consideration being substantiated.17. Having considered the merits, we need not go into the objection raised on behalf of the respondents that the petition was for political gains and should not be looked into in view of S.P. Gupta v. Union of India, 1981 (Supp) SCC 87, Janata Dal v. H.S. Chowdhary, (1992) 4 SCC 305 , Rajiv Ranjan Singh `Lalan (VIII) v. Union of India, (2006) 6 SCC 613 , Ashok Kumar Pandey v. State of West Bengal, 2003(4) R.C.R.(Criminal) 940 : (2004) 3 SCC 349 , Kunga Nima Lepcha v. State of Sikkim, 2010(2) R.C.R.(Criminal) 531 : (2010) 4 SCC 513 , Kishore Samrite v. State of U.P., 2012(4) R.C.R.(Criminal) 775 : 2012(5) Recent Apex Judgments (R.A.J.) 360 : (2013) 2 SCC 398 , Alagaapuram R. Mohanraj v. T.N. Legislative Assembly, 2016(2) R.C.R.(Civil) 87 : 2016(1) Recent Apex Judgments (R.A.J.) 692 : (2016) 6 SCC 82 and Santosh Singh v. Union of India, 2016(4) S.C.T. 1 : (2016) 8 SCC 253. There is no doubt about the legal position enunciated in the said decisions cautioning the Court against interference with decisions of the Executive without there being clear issue of genuine public interest. However, they do not create a jurisdictional bar, if conscience of the Court is pricked in a given case. A petition under Article 32, without clear element of public interest, cannot be entertained at the instance of a political rival merely on account of an alleged procedural irregularity in the decision making which can be challenged at appropriate forum by the aggrieved party. 18. | 1[ds]e objection on behalf of the petitioners is that in all the three offers, it was the same person who negotiated. Other helicopters were not considered. Excess price was paid to benefit the son of the Chiefthough the submission initially appeared to require consideration on account of which the State was directed to produce the record and explain the position after due consideration, we find it difficult to accept the same.13. Son of the Chief Minister is not personally a party. Disclosure in Panama Papers is a matter which is still under investigation by Multi Agency Group constituted by the Government of India on 4th April, 2016 which is to give its report to the Special Investigating Team constituted by this Court vide order dated 4th July, 2011 in Writ Petition (Civil)No. 176 of 2009 (This issue has been dealt with in the order of this Court dated 9th October, 2017 in W.P. No.65 of 2016]).14. On merits, as depicted in the comparative statement dated 19th December, 2006 signed by the Senior Helicopter Engineer and Chief Pilot (H), on comparison of47 andT1, parameters of Delivery Schedule, Number of Aircrafts in India, Maintenance facility in India, Spares Inventory in India, Technical trained manpower, Engine Power, Engine Life, Operation, Maintenance and customer support and Operation at Night were in favour ofer dated 2nd2007 addressed to the Director, Aviation, Government of Chhattisgarh shows that Agusta itself was not in a position to deliver the light twin engine helicopter before January, 2010. However, it stated that the same could be secured in August/September, 2007 from the distributors M/s. Sharp Ocean Investments Limited, Hong Kong at a total amount of US $ 6,315,000. Prior to this, on 29th December, 2016, recommendation was made by the Senior Engineer (H) that Agustawas suitable for operation for State Government VIP operations. Thus, for quick delivery, the State negotiated with M/s. Sharp Ocean Investments Limited. Final payment made is of 6,570,000 (Six million five hundred seventy thousand). Contention that the price of the Helicopter was US $ 5,246,000 as shown by the invoice of the Agusta Westland dated 30th October, 2007 and thus, the remaining amount was by way of commission cannot be accepted in view of contents of the Agreement dated 9th October, 2007 and the correspondence. The said agreement shows that Agusta had entered into agreement dated 24th May, 2006 for sale of Agusta Helicopter Modelto Serum Institute of India Limited. The sale was assigned by the said Serum to Sharp and Sharp had made certain advance payments to Agusta. Sharp had claimed its holding charges. Agusta itself made it clear that the price was US $ 6 Million if delivery time was more. For earlier delivery,Helicopter could be purchased from its distributor at a higher price. Thus, it cannot be said that there was an excess payment for extraneous reason. Comparison with the price at which Jharkhand proposed to purchase helicopter has no relevance as that was a deal in the year 2005 at which price the helicopter was not available at the relevant time as noted earlier. Price in Jharkhand deal was US $ 5.591 million and the said transaction is dated 5th August, 2006. Obviously, it is difficult to accept the contention that real value in the present transaction was US $ 5.246 million on 26th October, 2017 when the company itself vide letter dated 13th March, 2007 showed inability for early disposal and stated that the price was US $ 6.0 million if delivery period was more than two years.15. It cannot be disputed that the State Government was entitled to make a choice to purchase the Helicopter in question. There is nothing on record to show that the Helicopter could have been procured for lesser price. No person claiming to give a better deal has come forward. Thus, in absence of clear evidence that loss was caused to public exchequer by way of commission payment to Sharp Ocean Investments Limited which was only a route to send the payment to the son of the Chief Minister, interference by this Court is not called for. There is a tripartite agreement dated 26th October, 2007, between Sharp Ocean Investments Limited, the State of Chhatisgarh and Agusta to the effect that Sharp Ocean Investments Limited was entitled to retain payment made by it to Agusta to the extent of US $ 100,000 (As per Article 4.1.A of Agreement dated 24th May, 2006 read with Agreement dated 13th November, 2006 in favour of Sharp Ocean Investments Limited) and US $ 1,473, 800 under Article 4.1.B of the Contract. The CAG report does not attribute any extraneous consideration in the deal.16. There is no material to prima facie hold that beneficiary of transaction was Abhishak Singh. We do not consider it necessary to go into the allegation of mere procedural irregularities. We broadly find that no case is made out for interference by this Court for issuing a direction as sought in absence of allegation of extraneous consideration being substantiated.17. Having considered the merits, we need not go into the objection raised on behalf of the respondents that the petition was for political gains and should not be looked into in view of S.P. Gupta v. Union of India, 1981 (Supp) SCC 87, Janata Dal v. H.S. Chowdhary, (1992) 4 SCC 305 , Rajiv Ranjan Singh `Lalan (VIII) v. Union of India, (2006) 6 SCC 613 , Ashok Kumar Pandey v. State of West Bengal, 2003(4) R.C.R.(Criminal) 940 : (2004) 3 SCC 349 , Kunga Nima Lepcha v. State of Sikkim, 2010(2) R.C.R.(Criminal) 531 : (2010) 4 SCC 513 , Kishore Samrite v. State of U.P., 2012(4) R.C.R.(Criminal) 775 : 2012(5) Recent Apex Judgments (R.A.J.) 360 : (2013) 2 SCC 398 , Alagaapuram R. Mohanraj v. T.N. Legislative Assembly, 2016(2) R.C.R.(Civil) 87 : 2016(1) Recent Apex Judgments (R.A.J.) 692 : (2016) 6 SCC 82 and Santosh Singh v. Union of India, 2016(4) S.C.T. 1 : (2016) 8 SCC 253. There is no doubt about the legal position enunciated in the said decisions cautioning the Court against interference with decisions of the Executive without there being clear issue of genuine public interest. However, they do not create a jurisdictional bar, if conscience of the Court is pricked in a given case. A petition under Article 32, without clear element of public interest, cannot be entertained at the instance of a political rival merely on account of an alleged procedural irregularity in the decision making which can be challenged at appropriate forum by the aggrieved party. | 1 | 3,599 | 1,274 | ### 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:
4th April, 2016 which is to give its report to the Special Investigating Team constituted by this Court vide order dated 4th July, 2011 in Writ Petition (Civil)No. 176 of 2009 (This issue has been dealt with in the order of this Court dated 9th October, 2017 in W.P. No.65 of 2016]).14. On merits, as depicted in the comparative statement dated 19th December, 2006 signed by the Senior Helicopter Engineer and Chief Pilot (H), on comparison of A-109 Power, B-247 and EC-135 T1, parameters of Delivery Schedule, Number of Aircrafts in India, Maintenance facility in India, Spares Inventory in India, Technical trained manpower, Engine Power, Engine Life, Operation, Maintenance and customer support and Operation at Night were in favour of A-109 Power. Letter dated 2nd January, 2007 addressed to the Director, Aviation, Government of Chhattisgarh shows that Agusta itself was not in a position to deliver the light twin engine helicopter before January, 2010. However, it stated that the same could be secured in August/September, 2007 from the distributors M/s. Sharp Ocean Investments Limited, Hong Kong at a total amount of US $ 6,315,000. Prior to this, on 29th December, 2016, recommendation was made by the Senior Engineer (H) that Agusta A-109 was suitable for operation for State Government VIP operations. Thus, for quick delivery, the State negotiated with M/s. Sharp Ocean Investments Limited. Final payment made is of 6,570,000 (Six million five hundred seventy thousand). Contention that the price of the Helicopter was US $ 5,246,000 as shown by the invoice of the Agusta Westland dated 30th October, 2007 and thus, the remaining amount was by way of commission cannot be accepted in view of contents of the Agreement dated 9th October, 2007 and the correspondence. The said agreement shows that Agusta had entered into agreement dated 24th May, 2006 for sale of Agusta Helicopter Model A-109 to Serum Institute of India Limited. The sale was assigned by the said Serum to Sharp and Sharp had made certain advance payments to Agusta. Sharp had claimed its holding charges. Agusta itself made it clear that the price was US $ 6 Million if delivery time was more. For earlier delivery, pre-sold Helicopter could be purchased from its distributor at a higher price. Thus, it cannot be said that there was an excess payment for extraneous reason. Comparison with the price at which Jharkhand proposed to purchase helicopter has no relevance as that was a deal in the year 2005 at which price the helicopter was not available at the relevant time as noted earlier. Price in Jharkhand deal was US $ 5.591 million and the said transaction is dated 5th August, 2006. Obviously, it is difficult to accept the contention that real value in the present transaction was US $ 5.246 million on 26th October, 2017 when the company itself vide letter dated 13th March, 2007 showed inability for early disposal and stated that the price was US $ 6.0 million if delivery period was more than two years.15. It cannot be disputed that the State Government was entitled to make a choice to purchase the Helicopter in question. There is nothing on record to show that the Helicopter could have been procured for lesser price. No person claiming to give a better deal has come forward. Thus, in absence of clear evidence that loss was caused to public exchequer by way of commission payment to Sharp Ocean Investments Limited which was only a route to send the payment to the son of the Chief Minister, interference by this Court is not called for. There is a tripartite agreement dated 26th October, 2007, between Sharp Ocean Investments Limited, the State of Chhatisgarh and Agusta to the effect that Sharp Ocean Investments Limited was entitled to retain payment made by it to Agusta to the extent of US $ 100,000 (As per Article 4.1.A of Agreement dated 24th May, 2006 read with Agreement dated 13th November, 2006 in favour of Sharp Ocean Investments Limited) and US $ 1,473, 800 under Article 4.1.B of the Contract. The CAG report does not attribute any extraneous consideration in the deal.16. There is no material to prima facie hold that beneficiary of transaction was Abhishak Singh. We do not consider it necessary to go into the allegation of mere procedural irregularities. We broadly find that no case is made out for interference by this Court for issuing a direction as sought in absence of allegation of extraneous consideration being substantiated.17. Having considered the merits, we need not go into the objection raised on behalf of the respondents that the petition was for political gains and should not be looked into in view of S.P. Gupta v. Union of India, 1981 (Supp) SCC 87, Janata Dal v. H.S. Chowdhary, (1992) 4 SCC 305 , Rajiv Ranjan Singh `Lalan (VIII) v. Union of India, (2006) 6 SCC 613 , Ashok Kumar Pandey v. State of West Bengal, 2003(4) R.C.R.(Criminal) 940 : (2004) 3 SCC 349 , Kunga Nima Lepcha v. State of Sikkim, 2010(2) R.C.R.(Criminal) 531 : (2010) 4 SCC 513 , Kishore Samrite v. State of U.P., 2012(4) R.C.R.(Criminal) 775 : 2012(5) Recent Apex Judgments (R.A.J.) 360 : (2013) 2 SCC 398 , Alagaapuram R. Mohanraj v. T.N. Legislative Assembly, 2016(2) R.C.R.(Civil) 87 : 2016(1) Recent Apex Judgments (R.A.J.) 692 : (2016) 6 SCC 82 and Santosh Singh v. Union of India, 2016(4) S.C.T. 1 : (2016) 8 SCC 253. There is no doubt about the legal position enunciated in the said decisions cautioning the Court against interference with decisions of the Executive without there being clear issue of genuine public interest. However, they do not create a jurisdictional bar, if conscience of the Court is pricked in a given case. A petition under Article 32, without clear element of public interest, cannot be entertained at the instance of a political rival merely on account of an alleged procedural irregularity in the decision making which can be challenged at appropriate forum by the aggrieved party. 18.
### Response:
1
### Explanation:
which is still under investigation by Multi Agency Group constituted by the Government of India on 4th April, 2016 which is to give its report to the Special Investigating Team constituted by this Court vide order dated 4th July, 2011 in Writ Petition (Civil)No. 176 of 2009 (This issue has been dealt with in the order of this Court dated 9th October, 2017 in W.P. No.65 of 2016]).14. On merits, as depicted in the comparative statement dated 19th December, 2006 signed by the Senior Helicopter Engineer and Chief Pilot (H), on comparison of47 andT1, parameters of Delivery Schedule, Number of Aircrafts in India, Maintenance facility in India, Spares Inventory in India, Technical trained manpower, Engine Power, Engine Life, Operation, Maintenance and customer support and Operation at Night were in favour ofer dated 2nd2007 addressed to the Director, Aviation, Government of Chhattisgarh shows that Agusta itself was not in a position to deliver the light twin engine helicopter before January, 2010. However, it stated that the same could be secured in August/September, 2007 from the distributors M/s. Sharp Ocean Investments Limited, Hong Kong at a total amount of US $ 6,315,000. Prior to this, on 29th December, 2016, recommendation was made by the Senior Engineer (H) that Agustawas suitable for operation for State Government VIP operations. Thus, for quick delivery, the State negotiated with M/s. Sharp Ocean Investments Limited. Final payment made is of 6,570,000 (Six million five hundred seventy thousand). Contention that the price of the Helicopter was US $ 5,246,000 as shown by the invoice of the Agusta Westland dated 30th October, 2007 and thus, the remaining amount was by way of commission cannot be accepted in view of contents of the Agreement dated 9th October, 2007 and the correspondence. The said agreement shows that Agusta had entered into agreement dated 24th May, 2006 for sale of Agusta Helicopter Modelto Serum Institute of India Limited. The sale was assigned by the said Serum to Sharp and Sharp had made certain advance payments to Agusta. Sharp had claimed its holding charges. Agusta itself made it clear that the price was US $ 6 Million if delivery time was more. For earlier delivery,Helicopter could be purchased from its distributor at a higher price. Thus, it cannot be said that there was an excess payment for extraneous reason. Comparison with the price at which Jharkhand proposed to purchase helicopter has no relevance as that was a deal in the year 2005 at which price the helicopter was not available at the relevant time as noted earlier. Price in Jharkhand deal was US $ 5.591 million and the said transaction is dated 5th August, 2006. Obviously, it is difficult to accept the contention that real value in the present transaction was US $ 5.246 million on 26th October, 2017 when the company itself vide letter dated 13th March, 2007 showed inability for early disposal and stated that the price was US $ 6.0 million if delivery period was more than two years.15. It cannot be disputed that the State Government was entitled to make a choice to purchase the Helicopter in question. There is nothing on record to show that the Helicopter could have been procured for lesser price. No person claiming to give a better deal has come forward. Thus, in absence of clear evidence that loss was caused to public exchequer by way of commission payment to Sharp Ocean Investments Limited which was only a route to send the payment to the son of the Chief Minister, interference by this Court is not called for. There is a tripartite agreement dated 26th October, 2007, between Sharp Ocean Investments Limited, the State of Chhatisgarh and Agusta to the effect that Sharp Ocean Investments Limited was entitled to retain payment made by it to Agusta to the extent of US $ 100,000 (As per Article 4.1.A of Agreement dated 24th May, 2006 read with Agreement dated 13th November, 2006 in favour of Sharp Ocean Investments Limited) and US $ 1,473, 800 under Article 4.1.B of the Contract. The CAG report does not attribute any extraneous consideration in the deal.16. There is no material to prima facie hold that beneficiary of transaction was Abhishak Singh. We do not consider it necessary to go into the allegation of mere procedural irregularities. We broadly find that no case is made out for interference by this Court for issuing a direction as sought in absence of allegation of extraneous consideration being substantiated.17. Having considered the merits, we need not go into the objection raised on behalf of the respondents that the petition was for political gains and should not be looked into in view of S.P. Gupta v. Union of India, 1981 (Supp) SCC 87, Janata Dal v. H.S. Chowdhary, (1992) 4 SCC 305 , Rajiv Ranjan Singh `Lalan (VIII) v. Union of India, (2006) 6 SCC 613 , Ashok Kumar Pandey v. State of West Bengal, 2003(4) R.C.R.(Criminal) 940 : (2004) 3 SCC 349 , Kunga Nima Lepcha v. State of Sikkim, 2010(2) R.C.R.(Criminal) 531 : (2010) 4 SCC 513 , Kishore Samrite v. State of U.P., 2012(4) R.C.R.(Criminal) 775 : 2012(5) Recent Apex Judgments (R.A.J.) 360 : (2013) 2 SCC 398 , Alagaapuram R. Mohanraj v. T.N. Legislative Assembly, 2016(2) R.C.R.(Civil) 87 : 2016(1) Recent Apex Judgments (R.A.J.) 692 : (2016) 6 SCC 82 and Santosh Singh v. Union of India, 2016(4) S.C.T. 1 : (2016) 8 SCC 253. There is no doubt about the legal position enunciated in the said decisions cautioning the Court against interference with decisions of the Executive without there being clear issue of genuine public interest. However, they do not create a jurisdictional bar, if conscience of the Court is pricked in a given case. A petition under Article 32, without clear element of public interest, cannot be entertained at the instance of a political rival merely on account of an alleged procedural irregularity in the decision making which can be challenged at appropriate forum by the aggrieved party.
|
Shyam Sundar Pramanick Vs. Moni Mohan Sadhukhan & Others | act as the sole shebait as Krishna Chandra Sadhukhan predeceased Chamatkarini. Counsel further submitted that even if it be not so the compromise decree in the earlier suit was binding on respondent No. 1 as it was entered into on his behalf also. Under the terms of the compromise the appellant alone was entitled to act as shebait during his lifetime. Mr. A. K. Sen, learned Counsel for respondent No. 1 submitted that the judgment of the High Court on both the points was correct and ought to be interfered with.4. The High Court in its appellate judgment has quoted the relevant clauses of the will in question. It has rightly held that giving of the properties to the deity and laying down the line of shebaitship was done by Clause 3 of the will. The matter of succession to shebaitship was clearly provided in Clause 10. Clause 9 of the will on which great reliance was placed on behalf of the appellant was not laying down any different line of shebaitship from the one mentioned in Clauses 3 and 10. Reading the will as a whole the High Court in our opinion has rightly come to the conclusion that so long Smt. Chamatkarini Dasi was alive she was to be the sole shebait and after her death the appellant and Krishna Chandra Sadhukhan were to be the joint shebaits. On the death of either of them his male heirs were to succeed the deceased.5. We shall read Clause 3 of the will in full and portions of Clauses 9 and 10. They are as follows :Whatever immovable (movable) properties I have or whatever movable and immovable properties shall have at the time of death shall be regarded as the estate of my family deity established by me Sree Sree Iswar Sridhar Jieu Thakur or in other words, the entire estate of mine shall belong to the said deity. My said wife and after her demise my said fosterson and the said grandson (daughters son Sriman Krishna Chandra Sadhukhan) shall remain down to their male heirs succession as the shebait or trustees of the said Thakur and his estate and shall look after and preserve the said estate according to the directions noted below.After the death of my said wife the said fosterson and the said grandson (daughters son Sriman Krishna Chandra Sadhukhan) shall jointly or one of them on the demise of the other as the joint or the sole shebait and trustee of the said estate make expenses etc.My said fosterson and the said grandson (daughters son Sriman Krishna Chandra Sadhukhan) also shall remain the trustees of the said estate during their lifetime and shall act as stated above. Upon their demise all their male heirs such as son and sons son etc. shall be the shebait and trustees in their places manage the said estate.6. It is clear on reading the relevant words of the three clauses of the will extracted above the intention of the testator was after bequeathing the properties to the deity, to appoint his wife as the sole shebait during her lifetime and to treat his fosterson Shyam Sundar and his daughters son Krishna Chandra on equal footing so that so long both were alive they may act as joint shebaits and after the death of either his male heirs may step into his shoes. It was not the intention of the testator to make either of the survivors, the fosterson or the daughters son, to be the sole shebait for his life. It it not correct to say as was argued on behalf of the appellant, that the heirs were to come in the picture only after the death of both. In Clause 9 a direction was given to the shebait or the shebaits whether one was the sole shebait or a joint shebait to do certain things according to the will of the testator. In the event of one of the two dying without leaving any male heir, the surviving one could have become the sole shebait. But he would be a joint shebait with the male heirs of the deceased shebait in case he left such heirs. It is on that account that in Clause 9 it was said "one of them on the demise of the other as the joint or the sole shebait", to meet both the eventualities.7. The High Court has read in full the terms of the compromise decree. According to Clause 3 Smt. Chamatkarini will continue to act as such shebait during the time of her natural life. On her death the plaintiff Shyam Sundar Paramanick will act as the shebait of the said deity.The High Court has rightly pointed out that although the compromise was entered into also on behalf of respondent No. 1 who was then a minor, but the declaration in the various clauses of the compromise was confined to as between two persons namely Smt. Chamatkarini Dasi and the appellant. The High Court has also pointed out that even in accordance with Clause 3 the appellant was not to act as the sole shebait and that any different construction did not fit in with what was recited in Clause 4 of the compromise. We do not find any reason to persuade us to take a view different from the one taken by the High Court as respects the effect of the compromise decree. Since the previous suit was an administration suit one may at best say in favour of the appellant that according to the compromise (and this is on the footing that the compromise was binding on respondent No. 1 also) the appellant was to act as the sole shebait so long respondent No. 1 was a minor. On his attaining majority, there was nothing to prevent him from becoming a joint shebait with the appellant. Respondent No. 1 filed the suit in the year 1958 indisputably after attaining majority. In any view of the mater the appellant cannot succeed. | 0[ds]6. It is clear on reading the relevant words of the three clauses of the will extracted above the intention of the testator was after bequeathing the properties to the deity, to appoint his wife as the sole shebait during her lifetime and to treat his fosterson Shyam Sundar and his daughters son Krishna Chandra on equal footing so that so long both were alive they may act as joint shebaits and after the death of either his male heirs may step into his shoes. It was not the intention of the testator to make either of the survivors, the fosterson or the daughters son, to be the sole shebait for his life. It it not correct to say as was argued on behalf of the appellant, that the heirs were to come in the picture only after the death of both. In Clause 9 a direction was given to the shebait or the shebaits whether one was the sole shebait or a joint shebait to do certain things according to the will of the testator. In the event of one of the two dying without leaving any male heir, the surviving one could have become the sole shebait. But he would be a joint shebait with the male heirs of the deceased shebait in case he left such heirs. It is on that account that in Clause 9 it was said "one of them on the demise of the other as the joint or the sole shebait", to meet both the eventualities.7. The High Court has read in full the terms of the compromise decree. According to Clause 3 Smt. Chamatkarini will continue to act as such shebait during the time of her natural life. On her death the plaintiff Shyam Sundar Paramanick will act as the shebait of the said deity.The High Court has rightly pointed out that although the compromise was entered into also on behalf of respondent No. 1 who was then a minor, but the declaration in the various clauses of the compromise was confined to as between two persons namely Smt. Chamatkarini Dasi and the appellant. The High Court has also pointed out that even in accordance with Clause 3 the appellant was not to act as the sole shebait and that any different construction did not fit in with what was recited in Clause 4 of the compromise. We do not find any reason to persuade us to take a view different from the one taken by the High Court as respects the effect of the compromise decree. Since the previous suit was an administration suit one may at best say in favour of the appellant that according to the compromise (and this is on the footing that the compromise was binding on respondent No. 1 also) the appellant was to act as the sole shebait so long respondent No. 1 was a minor. On his attaining majority, there was nothing to prevent him from becoming a joint shebait with the appellant. Respondent No. 1 filed the suit in the year 1958 indisputably after attaining majority. In any view of the mater the appellant cannot succeed. | 0 | 1,617 | 563 | ### 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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act as the sole shebait as Krishna Chandra Sadhukhan predeceased Chamatkarini. Counsel further submitted that even if it be not so the compromise decree in the earlier suit was binding on respondent No. 1 as it was entered into on his behalf also. Under the terms of the compromise the appellant alone was entitled to act as shebait during his lifetime. Mr. A. K. Sen, learned Counsel for respondent No. 1 submitted that the judgment of the High Court on both the points was correct and ought to be interfered with.4. The High Court in its appellate judgment has quoted the relevant clauses of the will in question. It has rightly held that giving of the properties to the deity and laying down the line of shebaitship was done by Clause 3 of the will. The matter of succession to shebaitship was clearly provided in Clause 10. Clause 9 of the will on which great reliance was placed on behalf of the appellant was not laying down any different line of shebaitship from the one mentioned in Clauses 3 and 10. Reading the will as a whole the High Court in our opinion has rightly come to the conclusion that so long Smt. Chamatkarini Dasi was alive she was to be the sole shebait and after her death the appellant and Krishna Chandra Sadhukhan were to be the joint shebaits. On the death of either of them his male heirs were to succeed the deceased.5. We shall read Clause 3 of the will in full and portions of Clauses 9 and 10. They are as follows :Whatever immovable (movable) properties I have or whatever movable and immovable properties shall have at the time of death shall be regarded as the estate of my family deity established by me Sree Sree Iswar Sridhar Jieu Thakur or in other words, the entire estate of mine shall belong to the said deity. My said wife and after her demise my said fosterson and the said grandson (daughters son Sriman Krishna Chandra Sadhukhan) shall remain down to their male heirs succession as the shebait or trustees of the said Thakur and his estate and shall look after and preserve the said estate according to the directions noted below.After the death of my said wife the said fosterson and the said grandson (daughters son Sriman Krishna Chandra Sadhukhan) shall jointly or one of them on the demise of the other as the joint or the sole shebait and trustee of the said estate make expenses etc.My said fosterson and the said grandson (daughters son Sriman Krishna Chandra Sadhukhan) also shall remain the trustees of the said estate during their lifetime and shall act as stated above. Upon their demise all their male heirs such as son and sons son etc. shall be the shebait and trustees in their places manage the said estate.6. It is clear on reading the relevant words of the three clauses of the will extracted above the intention of the testator was after bequeathing the properties to the deity, to appoint his wife as the sole shebait during her lifetime and to treat his fosterson Shyam Sundar and his daughters son Krishna Chandra on equal footing so that so long both were alive they may act as joint shebaits and after the death of either his male heirs may step into his shoes. It was not the intention of the testator to make either of the survivors, the fosterson or the daughters son, to be the sole shebait for his life. It it not correct to say as was argued on behalf of the appellant, that the heirs were to come in the picture only after the death of both. In Clause 9 a direction was given to the shebait or the shebaits whether one was the sole shebait or a joint shebait to do certain things according to the will of the testator. In the event of one of the two dying without leaving any male heir, the surviving one could have become the sole shebait. But he would be a joint shebait with the male heirs of the deceased shebait in case he left such heirs. It is on that account that in Clause 9 it was said "one of them on the demise of the other as the joint or the sole shebait", to meet both the eventualities.7. The High Court has read in full the terms of the compromise decree. According to Clause 3 Smt. Chamatkarini will continue to act as such shebait during the time of her natural life. On her death the plaintiff Shyam Sundar Paramanick will act as the shebait of the said deity.The High Court has rightly pointed out that although the compromise was entered into also on behalf of respondent No. 1 who was then a minor, but the declaration in the various clauses of the compromise was confined to as between two persons namely Smt. Chamatkarini Dasi and the appellant. The High Court has also pointed out that even in accordance with Clause 3 the appellant was not to act as the sole shebait and that any different construction did not fit in with what was recited in Clause 4 of the compromise. We do not find any reason to persuade us to take a view different from the one taken by the High Court as respects the effect of the compromise decree. Since the previous suit was an administration suit one may at best say in favour of the appellant that according to the compromise (and this is on the footing that the compromise was binding on respondent No. 1 also) the appellant was to act as the sole shebait so long respondent No. 1 was a minor. On his attaining majority, there was nothing to prevent him from becoming a joint shebait with the appellant. Respondent No. 1 filed the suit in the year 1958 indisputably after attaining majority. In any view of the mater the appellant cannot succeed.
### Response:
0
### Explanation:
6. It is clear on reading the relevant words of the three clauses of the will extracted above the intention of the testator was after bequeathing the properties to the deity, to appoint his wife as the sole shebait during her lifetime and to treat his fosterson Shyam Sundar and his daughters son Krishna Chandra on equal footing so that so long both were alive they may act as joint shebaits and after the death of either his male heirs may step into his shoes. It was not the intention of the testator to make either of the survivors, the fosterson or the daughters son, to be the sole shebait for his life. It it not correct to say as was argued on behalf of the appellant, that the heirs were to come in the picture only after the death of both. In Clause 9 a direction was given to the shebait or the shebaits whether one was the sole shebait or a joint shebait to do certain things according to the will of the testator. In the event of one of the two dying without leaving any male heir, the surviving one could have become the sole shebait. But he would be a joint shebait with the male heirs of the deceased shebait in case he left such heirs. It is on that account that in Clause 9 it was said "one of them on the demise of the other as the joint or the sole shebait", to meet both the eventualities.7. The High Court has read in full the terms of the compromise decree. According to Clause 3 Smt. Chamatkarini will continue to act as such shebait during the time of her natural life. On her death the plaintiff Shyam Sundar Paramanick will act as the shebait of the said deity.The High Court has rightly pointed out that although the compromise was entered into also on behalf of respondent No. 1 who was then a minor, but the declaration in the various clauses of the compromise was confined to as between two persons namely Smt. Chamatkarini Dasi and the appellant. The High Court has also pointed out that even in accordance with Clause 3 the appellant was not to act as the sole shebait and that any different construction did not fit in with what was recited in Clause 4 of the compromise. We do not find any reason to persuade us to take a view different from the one taken by the High Court as respects the effect of the compromise decree. Since the previous suit was an administration suit one may at best say in favour of the appellant that according to the compromise (and this is on the footing that the compromise was binding on respondent No. 1 also) the appellant was to act as the sole shebait so long respondent No. 1 was a minor. On his attaining majority, there was nothing to prevent him from becoming a joint shebait with the appellant. Respondent No. 1 filed the suit in the year 1958 indisputably after attaining majority. In any view of the mater the appellant cannot succeed.
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Bayanabai Kaware Vs. Rajendra | the sale deed (Ex.P-31) inasmuch as the sale deed had some kind of discrepancies and also no attesting witness was examined; secondly, the appellant was in possession of the suit land since 1972 and hence perfected her title over it by adverse possession; thirdly, the dispute, which is the subject-matter of civil suit, pertained to the business of the Society and hence covered by Section 91 of the Maharashtra Cooperative Societies Act (in short "the Act") and is, accordingly, barred under Section 163(1) of the Act.11) The respondent, felt aggrieved by the judgment of the Trial Court, filed First Appeal before the 3rd Additional District Judge, Nagpur being Regular Civil Appeal No.152 of 1989. The Appellate Court, by judgment dated 26.08.1996, dismissed the appeal and affirmed the judgment and decree of the Trial Court. The Appellate Court reversed the two findings of the Trial Court. One was in relation to the bar contained in Section 91 of the Act and the other relating to the plea of adverse possession. In other words, the Appellate Court reversed the two findings of the Trial Court and held that, firstly, the bar contained in Section 91 of the Act does not hit the civil suit and hence maintainable in Civil Court and secondly, the appellant (defendant) failed to prove her adverse possession over the suit land and hence cannot be declared the owner of the suit land on the strength of her alleged adverse possession over it. However, since the Appellate Court confirmed the finding of the Trial Court insofar as it pertained to not properly proving the sale deed dated 29.12.1981 (Ex.P-31), the suit was dismissed. In other words, the Appellate Court also held that the respondent (plaintiff) was not able to prove the sale deed dated 29.12.1981 in accordance with law and hence no decree could be passed in respondent’s favour in relation to the suit land on the strength of such unproved sale deed.12) Felt aggrieved by the judgment of the Appellate Court, the respondent (plaintiff) filed Second Appeal under Section 100 of the Code of Civil Procedure Code, 1908 (hereinafter referred to as “the Code”) in the High Court (Nagpur Bench). The High Court framed the following question of law:“Whether it is necessary for the plaintiff appellant to examine his vendor and attesting witnesses to prove his title to the suit property in a suit for recovery of possession against the encroacher when there is a registered sale deed executed by his vendor in his favour?”13) The appellant (defendant), however, did not file any cross objection under Order 41 Rule 22 of the Code to challenge the adverse findings recorded by the First Appellate Court and, therefore, those findings attained finality.14) By impugned judgment, the High Court allowed the Second Appeal and while setting aside of the judgments/decrees of the two courts below decreed the appellants suit. The High Court held that the respondent has proved the sale deed as required in law and, therefore, he was entitled to claim decree for possession on the basis of the sale deed (Ex.P-31) as an owner against the appellant. Felt aggrieved, the defendant filed the present appeal by way of special leave against the judgment of the High Court before this Court.15) Heard Mr. Anshuman Singh, learned counsel for the appellant and Mr. Rahul Chitnis, learned counsel for the respondent.16) Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to dismiss the appeal as, in our opinion, the High Court is right in its reasoning and its conclusion.17) As observed supra, the only question involved in the appeal before the High Court was whether the sale deed dated 29.12.1981 (Ex.P-31) in relation to the suit land was duly proved by the respondent.18) The Trial Court and the First Appellate Court held that since the sale deed was not properly proved, the respondents suit was dismissed whereas the High Court reversed the said finding and held that the sale deed was duly proved as required in law and accordingly passed the decree for possession against the appellant in relation to the suit land.19) We agree with the reasoning of the High Court. In our opinion also, the respondent was able to prove the sale deed and was, therefore, rightly held entitled to claim decree for possession of the suit land on the strength of the sale deed dated 29.12.1981 (Ex.P-31) against the appellant.20) It is for the reasons that, firstly, the execution of the sale deed does not need any attesting witness like the gift deed, which requires at least two attesting witnesses at the time of its execution as per Section 123 of the Transfer of Property Act, 1882; and Secondly, Section 68 of the Evidence Act, 1872, which deals with the examination of the attesting witness to prove the execution of the document, does not apply to sale deed, which is governed by Section 54 of the Transfer of Property Act.21) It is not in dispute that the appellant (defendant) in this case did not dispute the respondents vendor’s (Housing Society) title. On the other hand, she, in clear terms, admitted their title in her written statement. It is also not in dispute that the respondent entered in witness box and proved its execution and further did not raise any objection when the sale deed was being exhibited in evidence and indeed, rightly for want of any legal basis.22) In the light of these admitted facts, we are of the view that the sale deed dated 29.12.1981 was duly proved by the respondent and was, therefore, rightly relied on by the High Court for passing a decree of possession against the appellant. It was, in our opinion, a clear case where the respondent had a better title of the suit land as against the appellant, who had no title to the suit land. All that the appellant had was a plea of adverse possession which was not held proved. | 0[ds]16) Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to dismiss the appeal as, in our opinion, the High Court is right in its reasoning and itsWe agree with the reasoning of the High Court. In our opinion also, the respondent was able to prove the sale deed and was, therefore, rightly held entitled to claim decree for possession of the suit land on the strength of the sale deed dated 29.12.1981against the appellant.20) It is for the reasons that, firstly, the execution of the sale deed does not need any attesting witness like the gift deed, which requires at least two attesting witnesses at the time of its execution as per Section 123 of the Transfer of Property Act, 1882; and Secondly, Section 68 of the Evidence Act, 1872, which deals with the examination of the attesting witness to prove the execution of the document, does not apply to sale deed, which is governed by Section 54 of the Transfer of Property Act.21) It is not in dispute that the appellant (defendant) in this case did not dispute the respondents(Housing Society) title. On the other hand, she, in clear terms, admitted their title in her written statement. It is also not in dispute that the respondent entered in witness box and proved its execution and further did not raise any objection when the sale deed was being exhibited in evidence and indeed, rightly for want of any legal basis.22) In the light of these admitted facts, we are of the view that the sale deed dated 29.12.1981 was duly proved by the respondent and was, therefore, rightly relied on by the High Court for passing a decree of possession against the appellant. It was, in our opinion, a clear case where the respondent had a better title of the suit land as against the appellant, who had no title to the suit land. All that the appellant had was a plea of adverse possession which was not held proved. | 0 | 1,788 | 387 | ### 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 sale deed (Ex.P-31) inasmuch as the sale deed had some kind of discrepancies and also no attesting witness was examined; secondly, the appellant was in possession of the suit land since 1972 and hence perfected her title over it by adverse possession; thirdly, the dispute, which is the subject-matter of civil suit, pertained to the business of the Society and hence covered by Section 91 of the Maharashtra Cooperative Societies Act (in short "the Act") and is, accordingly, barred under Section 163(1) of the Act.11) The respondent, felt aggrieved by the judgment of the Trial Court, filed First Appeal before the 3rd Additional District Judge, Nagpur being Regular Civil Appeal No.152 of 1989. The Appellate Court, by judgment dated 26.08.1996, dismissed the appeal and affirmed the judgment and decree of the Trial Court. The Appellate Court reversed the two findings of the Trial Court. One was in relation to the bar contained in Section 91 of the Act and the other relating to the plea of adverse possession. In other words, the Appellate Court reversed the two findings of the Trial Court and held that, firstly, the bar contained in Section 91 of the Act does not hit the civil suit and hence maintainable in Civil Court and secondly, the appellant (defendant) failed to prove her adverse possession over the suit land and hence cannot be declared the owner of the suit land on the strength of her alleged adverse possession over it. However, since the Appellate Court confirmed the finding of the Trial Court insofar as it pertained to not properly proving the sale deed dated 29.12.1981 (Ex.P-31), the suit was dismissed. In other words, the Appellate Court also held that the respondent (plaintiff) was not able to prove the sale deed dated 29.12.1981 in accordance with law and hence no decree could be passed in respondent’s favour in relation to the suit land on the strength of such unproved sale deed.12) Felt aggrieved by the judgment of the Appellate Court, the respondent (plaintiff) filed Second Appeal under Section 100 of the Code of Civil Procedure Code, 1908 (hereinafter referred to as “the Code”) in the High Court (Nagpur Bench). The High Court framed the following question of law:“Whether it is necessary for the plaintiff appellant to examine his vendor and attesting witnesses to prove his title to the suit property in a suit for recovery of possession against the encroacher when there is a registered sale deed executed by his vendor in his favour?”13) The appellant (defendant), however, did not file any cross objection under Order 41 Rule 22 of the Code to challenge the adverse findings recorded by the First Appellate Court and, therefore, those findings attained finality.14) By impugned judgment, the High Court allowed the Second Appeal and while setting aside of the judgments/decrees of the two courts below decreed the appellants suit. The High Court held that the respondent has proved the sale deed as required in law and, therefore, he was entitled to claim decree for possession on the basis of the sale deed (Ex.P-31) as an owner against the appellant. Felt aggrieved, the defendant filed the present appeal by way of special leave against the judgment of the High Court before this Court.15) Heard Mr. Anshuman Singh, learned counsel for the appellant and Mr. Rahul Chitnis, learned counsel for the respondent.16) Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to dismiss the appeal as, in our opinion, the High Court is right in its reasoning and its conclusion.17) As observed supra, the only question involved in the appeal before the High Court was whether the sale deed dated 29.12.1981 (Ex.P-31) in relation to the suit land was duly proved by the respondent.18) The Trial Court and the First Appellate Court held that since the sale deed was not properly proved, the respondents suit was dismissed whereas the High Court reversed the said finding and held that the sale deed was duly proved as required in law and accordingly passed the decree for possession against the appellant in relation to the suit land.19) We agree with the reasoning of the High Court. In our opinion also, the respondent was able to prove the sale deed and was, therefore, rightly held entitled to claim decree for possession of the suit land on the strength of the sale deed dated 29.12.1981 (Ex.P-31) against the appellant.20) It is for the reasons that, firstly, the execution of the sale deed does not need any attesting witness like the gift deed, which requires at least two attesting witnesses at the time of its execution as per Section 123 of the Transfer of Property Act, 1882; and Secondly, Section 68 of the Evidence Act, 1872, which deals with the examination of the attesting witness to prove the execution of the document, does not apply to sale deed, which is governed by Section 54 of the Transfer of Property Act.21) It is not in dispute that the appellant (defendant) in this case did not dispute the respondents vendor’s (Housing Society) title. On the other hand, she, in clear terms, admitted their title in her written statement. It is also not in dispute that the respondent entered in witness box and proved its execution and further did not raise any objection when the sale deed was being exhibited in evidence and indeed, rightly for want of any legal basis.22) In the light of these admitted facts, we are of the view that the sale deed dated 29.12.1981 was duly proved by the respondent and was, therefore, rightly relied on by the High Court for passing a decree of possession against the appellant. It was, in our opinion, a clear case where the respondent had a better title of the suit land as against the appellant, who had no title to the suit land. All that the appellant had was a plea of adverse possession which was not held proved.
### Response:
0
### Explanation:
16) Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to dismiss the appeal as, in our opinion, the High Court is right in its reasoning and itsWe agree with the reasoning of the High Court. In our opinion also, the respondent was able to prove the sale deed and was, therefore, rightly held entitled to claim decree for possession of the suit land on the strength of the sale deed dated 29.12.1981against the appellant.20) It is for the reasons that, firstly, the execution of the sale deed does not need any attesting witness like the gift deed, which requires at least two attesting witnesses at the time of its execution as per Section 123 of the Transfer of Property Act, 1882; and Secondly, Section 68 of the Evidence Act, 1872, which deals with the examination of the attesting witness to prove the execution of the document, does not apply to sale deed, which is governed by Section 54 of the Transfer of Property Act.21) It is not in dispute that the appellant (defendant) in this case did not dispute the respondents(Housing Society) title. On the other hand, she, in clear terms, admitted their title in her written statement. It is also not in dispute that the respondent entered in witness box and proved its execution and further did not raise any objection when the sale deed was being exhibited in evidence and indeed, rightly for want of any legal basis.22) In the light of these admitted facts, we are of the view that the sale deed dated 29.12.1981 was duly proved by the respondent and was, therefore, rightly relied on by the High Court for passing a decree of possession against the appellant. It was, in our opinion, a clear case where the respondent had a better title of the suit land as against the appellant, who had no title to the suit land. All that the appellant had was a plea of adverse possession which was not held proved.
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The Tata Iron And Steel Co. Ltd Vs. D. R. Singh | a workman concerned in the main industrial disputes; if he is not so concerned, S. 33 (2) will not apply. In order to avoid any complications and with a view to save itself from the charge that it had contravened S. 33 of the Act, the appellant had no doubt made an application as a precautionary measure; that is why it wanted the Tribunal to consider its contention that S. 33 did not apply as a preliminary point. The Tribunal took the view that the appellant could not raise such a contention. It held that if the appellant thought that S. 33 did not apply, it should withdraw the application and take the consequences. On that view, it refused to entertain the plea raised by the appellant and proceeded to deal with the merits of the application. In the result, the Tribunal was not satisfied that a prima facie case had been made out for the dismissal of the respondent, and so, approval was not accorded to the action which the appellant wanted to take against the respondent and its application was accordingly dismissed. It is against this order that the appellant has come to this Court by special leave.2. The learned Solicitor-General for the appellant contends, and we think rightly, that the Tribunal was in error in not dealing with the preliminary point as to whether S. 33 applied to the facts of this case. It is plain that in a situation like the present, even if the appellant took the view that the workman against whom it was taking action was not a workman concerned with the main industrial disputes, it would be justified in refusing to take the risk of deciding the said point for itself.It would be legitimate for an employer like the appellant to make an application under S. 33 without prejudice to his case that S. 33 did not apply. The question about the construction of the words "a workman concerned in such dispute" which occur in S. 33 (1) and (2) has been the subject-matter of judicial decisions and some-what inconsistent views had been taken by different High Courts on this point. Some High Courts construed the said words in a narrow way, vide New Jahangir Vakil Mills Ltd., Bhavnagar v. N. L. Vyas, 1958-2 Lab LJ 573: (AIR 1959 Bom 248), while others put a broader construction on them, vide Eastern Plywood Manufacturing Co. Ltd. v. Eastern Plywood Manufacturing Workers Union, 1952-1 Lab LJ 628 (LATI-Cal); Newtone Studios Ltd. v. T. R. Ethirajulu, 1958-1 Lab LJ 63: (AIR 1957 Mad 737 ) and Andhra Scientific Co. Ltd. v. Seshagiri Rao, 1959-2 Lab LJ 717: (AIR 1960 Andh Pra 526). This problem was ultimately resolved by this Court in its two recent decisions, viz., New India Motors (Private) Ltd. v. K. T. Morris, 1960-1 Lab LJ 551: (AIR 1960 SC 875 ) and Digwadih Colliery v. Ramji Singh, 1964-2 Lab LJ 143 (SC). In this latter case this Court considered the conflicting judicial decisions rendered by the different High Courts and has approved of the broader construction of the words "workmen concerned in such dispute". Where judicial decisions differed on the construction of the words "workmen concerned in such dispute", it would be idle and unreasonable to suggest that the employer should make up his mind whether S. 33 applies or not, and if he thinks that S. 33 does not apply, he need not make the application; on the other hand, if he thinks that S. 33 applies, he should make an application, but then he cannot be permitted to urge that the application is unnecessary. Such a view is, in our opinion, wholly illogical and unsatisfactory. Therefore, we must hold that the Tribunal was in error in not considering the preliminary point raised by the appellant that the respondent was not a workman concerned with the main industrial disputes and as such, the application made by it was unnecessary.3. That raises the question as to the course that we should adopt in dealing with the merits of the present appeal. Logically, it would be necessary to make a finding on the preliminary point raised by the appellant before the merits are considered, because if the appellant is right in contending that the respondent is not a "workman concerned with such disputes" within the meaning of S. 33 (2), the application would be unnecessary and there would be no jurisdiction in the Tribunal either to accord or to refuse approval to the action proposed to be taken by the appellant against the respondent. In the present case, however, we do not propose to adopt such a course. The order terminating the services of the respondent was passed on December 4, 1961 and it was to take effect from December 9, 1961. The Award was pronounced by the Tribunal on October 5, 1962, and when the appeal has come for final disposal before us, more than three years have elapsed since the date of dismissal of the respondent. The learned Solicitor-General fairly conceded that the appellant has come to this Court not so much to enforce its order of dismissal against the respondent, as to have a decision from this Court on the point of law raised by it before the Tribunal. Accordingly, we have decided that point in favour of the appellant; but having regard to the long passage of time between the date of the impugned order and the date when we are pronouncing our judgment in the present appeal, we think it would be inexpedient and unjust to send the matter back to the Tribunal with a direction that it should decide the preliminary point raised by the appellant as to whether the respondent is a "workman concerned in such disputes" within the meaning of S. 33 (2) of the Act. That is why though we have reversed the finding of the Tribunal on the preliminary point, we do not propose to give this litigation any further lease of life. | 0[ds]3. That raises the question as to the course that we should adopt in dealing with the merits of the present appeal. Logically, it would be necessary to make a finding on the preliminary point raised by the appellant before the merits are considered, because if the appellant is right in contending that the respondent is not a "workman concerned with such disputes" within the meaning of S. 33 (2), the application would be unnecessary and there would be no jurisdiction in the Tribunal either to accord or to refuse approval to the action proposed to be taken by the appellant against the respondent. In the present case, however, we do not propose to adopt such a course. The order terminating the services of the respondent was passed on December 4, 1961 and it was to take effect from December 9, 1961. The Award was pronounced by the Tribunal on October 5, 1962, and when the appeal has come for final disposal before us, more than three years have elapsed since the date of dismissal of the respondent. The learned Solicitor-General fairly conceded that the appellant has come to this Court not so much to enforce its order of dismissal against the respondent, as to have a decision from this Court on the point of law raised by it before the Tribunal. Accordingly, we have decided that point in favour of the appellant; but having regard to the long passage of time between the date of the impugned order and the date when we are pronouncing our judgment in the present appeal, we think it would be inexpedient and unjust to send the matter back to the Tribunal with a direction that it should decide the preliminary point raised by the appellant as to whether the respondent is a "workman concerned in such disputes" within the meaning of S. 33 (2) of the Act. That is why though we have reversed the finding of the Tribunal on the preliminary point, we do not propose to give this litigation any further lease of life.ral for the appellant contends, and we think rightly, that the Tribunal was in error in not dealing with the preliminary point as to whether S. 33 applied to the facts of this case. It is plain that in a situation like the present, even if the appellant took the view that the workman against whom it was taking action was not a workman concerned with the main industrial disputes, it would be justified in refusing to take the risk of deciding the said point for itself.It would be legitimate for an employer like the appellant to make an application under S. 33 without prejudice to his case that S. 33 did not apply.The question about the construction of the words "a workman concerned in such dispute" which occur in S. 33 (1) and (2) has been theof judicial decisions andinconsistent views had been taken by different High Courts on this point. Some High Courts construed the said words in a narrow way, vide New Jahangir Vakil Mills Ltd., Bhavnagar v. N. L. Vyas,Lab LJ 573: (AIR 1959 Bom 248), while others put a broader construction on them, vide Eastern Plywood Manufacturing Co. Ltd. v. Eastern Plywood Manufacturing Workers Union,Lab LJ 628Newtone Studios Ltd. v. T. R. Ethirajulu,Lab LJ 63: (AIR 1957 Mad 737 ) and Andhra Scientific Co. Ltd. v. Seshagiri Rao,Lab LJ 717: (AIR 1960 Andh Pra 526). This problem was ultimately resolved by this Court in its two recent decisions, viz., New India Motors (Private) Ltd. v. K. T. Morris,Lab LJ 551: (AIR 1960 SC 875 ) and Digwadih Colliery v. Ramji Singh,Lab LJ 143 (SC). In this latter case this Court considered the conflicting judicial decisions rendered by the different High Courts and has approved of the broader construction of the words "workmen concerned in such dispute". Where judicial decisions differed on the construction of the words "workmen concerned in such dispute", it would be idle and unreasonable to suggest that the employer should make up his mind whether S. 33 applies or not, and if he thinks that S. 33 does not apply, he need not make the application; on the other hand, if he thinks that S. 33 applies, he should make an application, but then he cannot be permitted to urge that the application is unnecessary. Such a view is, in our opinion, wholly illogical and unsatisfactory. Therefore, we must hold that the Tribunal was in error in not considering the preliminary point raised by the appellant that the respondent was not a workman concerned with the main industrial disputes and as such, the application made by it was unnecessary. | 0 | 1,414 | 880 | ### 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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a workman concerned in the main industrial disputes; if he is not so concerned, S. 33 (2) will not apply. In order to avoid any complications and with a view to save itself from the charge that it had contravened S. 33 of the Act, the appellant had no doubt made an application as a precautionary measure; that is why it wanted the Tribunal to consider its contention that S. 33 did not apply as a preliminary point. The Tribunal took the view that the appellant could not raise such a contention. It held that if the appellant thought that S. 33 did not apply, it should withdraw the application and take the consequences. On that view, it refused to entertain the plea raised by the appellant and proceeded to deal with the merits of the application. In the result, the Tribunal was not satisfied that a prima facie case had been made out for the dismissal of the respondent, and so, approval was not accorded to the action which the appellant wanted to take against the respondent and its application was accordingly dismissed. It is against this order that the appellant has come to this Court by special leave.2. The learned Solicitor-General for the appellant contends, and we think rightly, that the Tribunal was in error in not dealing with the preliminary point as to whether S. 33 applied to the facts of this case. It is plain that in a situation like the present, even if the appellant took the view that the workman against whom it was taking action was not a workman concerned with the main industrial disputes, it would be justified in refusing to take the risk of deciding the said point for itself.It would be legitimate for an employer like the appellant to make an application under S. 33 without prejudice to his case that S. 33 did not apply. The question about the construction of the words "a workman concerned in such dispute" which occur in S. 33 (1) and (2) has been the subject-matter of judicial decisions and some-what inconsistent views had been taken by different High Courts on this point. Some High Courts construed the said words in a narrow way, vide New Jahangir Vakil Mills Ltd., Bhavnagar v. N. L. Vyas, 1958-2 Lab LJ 573: (AIR 1959 Bom 248), while others put a broader construction on them, vide Eastern Plywood Manufacturing Co. Ltd. v. Eastern Plywood Manufacturing Workers Union, 1952-1 Lab LJ 628 (LATI-Cal); Newtone Studios Ltd. v. T. R. Ethirajulu, 1958-1 Lab LJ 63: (AIR 1957 Mad 737 ) and Andhra Scientific Co. Ltd. v. Seshagiri Rao, 1959-2 Lab LJ 717: (AIR 1960 Andh Pra 526). This problem was ultimately resolved by this Court in its two recent decisions, viz., New India Motors (Private) Ltd. v. K. T. Morris, 1960-1 Lab LJ 551: (AIR 1960 SC 875 ) and Digwadih Colliery v. Ramji Singh, 1964-2 Lab LJ 143 (SC). In this latter case this Court considered the conflicting judicial decisions rendered by the different High Courts and has approved of the broader construction of the words "workmen concerned in such dispute". Where judicial decisions differed on the construction of the words "workmen concerned in such dispute", it would be idle and unreasonable to suggest that the employer should make up his mind whether S. 33 applies or not, and if he thinks that S. 33 does not apply, he need not make the application; on the other hand, if he thinks that S. 33 applies, he should make an application, but then he cannot be permitted to urge that the application is unnecessary. Such a view is, in our opinion, wholly illogical and unsatisfactory. Therefore, we must hold that the Tribunal was in error in not considering the preliminary point raised by the appellant that the respondent was not a workman concerned with the main industrial disputes and as such, the application made by it was unnecessary.3. That raises the question as to the course that we should adopt in dealing with the merits of the present appeal. Logically, it would be necessary to make a finding on the preliminary point raised by the appellant before the merits are considered, because if the appellant is right in contending that the respondent is not a "workman concerned with such disputes" within the meaning of S. 33 (2), the application would be unnecessary and there would be no jurisdiction in the Tribunal either to accord or to refuse approval to the action proposed to be taken by the appellant against the respondent. In the present case, however, we do not propose to adopt such a course. The order terminating the services of the respondent was passed on December 4, 1961 and it was to take effect from December 9, 1961. The Award was pronounced by the Tribunal on October 5, 1962, and when the appeal has come for final disposal before us, more than three years have elapsed since the date of dismissal of the respondent. The learned Solicitor-General fairly conceded that the appellant has come to this Court not so much to enforce its order of dismissal against the respondent, as to have a decision from this Court on the point of law raised by it before the Tribunal. Accordingly, we have decided that point in favour of the appellant; but having regard to the long passage of time between the date of the impugned order and the date when we are pronouncing our judgment in the present appeal, we think it would be inexpedient and unjust to send the matter back to the Tribunal with a direction that it should decide the preliminary point raised by the appellant as to whether the respondent is a "workman concerned in such disputes" within the meaning of S. 33 (2) of the Act. That is why though we have reversed the finding of the Tribunal on the preliminary point, we do not propose to give this litigation any further lease of life.
### Response:
0
### Explanation:
3. That raises the question as to the course that we should adopt in dealing with the merits of the present appeal. Logically, it would be necessary to make a finding on the preliminary point raised by the appellant before the merits are considered, because if the appellant is right in contending that the respondent is not a "workman concerned with such disputes" within the meaning of S. 33 (2), the application would be unnecessary and there would be no jurisdiction in the Tribunal either to accord or to refuse approval to the action proposed to be taken by the appellant against the respondent. In the present case, however, we do not propose to adopt such a course. The order terminating the services of the respondent was passed on December 4, 1961 and it was to take effect from December 9, 1961. The Award was pronounced by the Tribunal on October 5, 1962, and when the appeal has come for final disposal before us, more than three years have elapsed since the date of dismissal of the respondent. The learned Solicitor-General fairly conceded that the appellant has come to this Court not so much to enforce its order of dismissal against the respondent, as to have a decision from this Court on the point of law raised by it before the Tribunal. Accordingly, we have decided that point in favour of the appellant; but having regard to the long passage of time between the date of the impugned order and the date when we are pronouncing our judgment in the present appeal, we think it would be inexpedient and unjust to send the matter back to the Tribunal with a direction that it should decide the preliminary point raised by the appellant as to whether the respondent is a "workman concerned in such disputes" within the meaning of S. 33 (2) of the Act. That is why though we have reversed the finding of the Tribunal on the preliminary point, we do not propose to give this litigation any further lease of life.ral for the appellant contends, and we think rightly, that the Tribunal was in error in not dealing with the preliminary point as to whether S. 33 applied to the facts of this case. It is plain that in a situation like the present, even if the appellant took the view that the workman against whom it was taking action was not a workman concerned with the main industrial disputes, it would be justified in refusing to take the risk of deciding the said point for itself.It would be legitimate for an employer like the appellant to make an application under S. 33 without prejudice to his case that S. 33 did not apply.The question about the construction of the words "a workman concerned in such dispute" which occur in S. 33 (1) and (2) has been theof judicial decisions andinconsistent views had been taken by different High Courts on this point. Some High Courts construed the said words in a narrow way, vide New Jahangir Vakil Mills Ltd., Bhavnagar v. N. L. Vyas,Lab LJ 573: (AIR 1959 Bom 248), while others put a broader construction on them, vide Eastern Plywood Manufacturing Co. Ltd. v. Eastern Plywood Manufacturing Workers Union,Lab LJ 628Newtone Studios Ltd. v. T. R. Ethirajulu,Lab LJ 63: (AIR 1957 Mad 737 ) and Andhra Scientific Co. Ltd. v. Seshagiri Rao,Lab LJ 717: (AIR 1960 Andh Pra 526). This problem was ultimately resolved by this Court in its two recent decisions, viz., New India Motors (Private) Ltd. v. K. T. Morris,Lab LJ 551: (AIR 1960 SC 875 ) and Digwadih Colliery v. Ramji Singh,Lab LJ 143 (SC). In this latter case this Court considered the conflicting judicial decisions rendered by the different High Courts and has approved of the broader construction of the words "workmen concerned in such dispute". Where judicial decisions differed on the construction of the words "workmen concerned in such dispute", it would be idle and unreasonable to suggest that the employer should make up his mind whether S. 33 applies or not, and if he thinks that S. 33 does not apply, he need not make the application; on the other hand, if he thinks that S. 33 applies, he should make an application, but then he cannot be permitted to urge that the application is unnecessary. Such a view is, in our opinion, wholly illogical and unsatisfactory. Therefore, we must hold that the Tribunal was in error in not considering the preliminary point raised by the appellant that the respondent was not a workman concerned with the main industrial disputes and as such, the application made by it was unnecessary.
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Badri Narayan Singh Vs. Kamdeo Prasad Singh And Another | Thus the first appeal was really a consolidated appeal against the decrees in both the appeals and could have been split up for the purposes of record into two separate appeals. This Court itself felt that the circumstances of the case were such that the High Court should have allowed the benefit of S. 5 of the Limitation Act to the appellant. 12. It was in these circumstances that this Court observed, at p. 757 (of SCR) : (at p. 420 of AIR) : It is now well settled that where there has been one trial, one finding, and one decision, there need not be two appeals even though two decrees may have been drawn up. This does not mean that whenever there be more than one appeal arising out of one suit, only one appeal is competent against the order in any of those appeals irrespective of the fact whether the issues for decision in those appeals were all common or some were common and others raised different prints for determination. The existence of one finding and one decision mentioned in this observation simply contemplates the presence of common points in all the appeals and the absence of any different point in those appeals, and consequently of one decision on those common points in all the appeals. 13. This Court further observed at p. 758 (of SCR) : (at p. 420 of AIR) : The question of res judicata arises only when there are two suits. Even when there are two suits it has been held that a decision given simultaneously cannot be a decision in the former suit. When there is only one suit, the question of res judicata does not arise at all and in the present case, both the decrees are in the same case and based on the same judgment, and the matter decided concerns the entire suit. As such there is no question of the application of the principle of res judicata. These observations do not apply to cases which are governed by the general principles of res judicata which rest on the principle that a judgment is conclusive regarding the points decided between the same parties and that the parties should not be vexed twice over for the same cause. 14. We are therefore of opinion that both in view of the facts of the case and the provision of law applicable to that case, that case can be no guide for determining the question before us in this appeal. 15. It is true that both the appeals Nos. 7 and 8 before the High Court arose out of one proceeding before the Election Tribunal. The subject matter of each appeal was, however, different. The subject matter of appeal No. 7 filed by the appellant related to the question of his election being bad or good, in view of the pleadings raised before the Election Tribunal . It had nothing to do with the question of right of respondent No.1 to be declared as duly elected candidate. The claim on such a right is to follow the decision of the question in appeal No. 7 in case the appeal was dismissed, if appeal No. 7 was allowed, the question in appeal No. 8 would not arise for consideration. The subject matter of appeal No. 8 simply did not relate to the validity or otherwise of the election of the appellant. It related to the further action to be taken in case the election of the appellant was bad, on the ground that a Ghatwal holds an office of profit. The decision of the High Court in the two appeals, though stated in one judgment, really amounted to two decisions and not to one decision common to both the appeals. It is true that in his appeal No. 8, the respondent No. 1 had referred to the rejection of his contention by the Election Tribunal about the appellant and respondent No. 2 being holders of an office of profit. He had to challenge the finding on this point because if he did not succeed on it, he could not have got a declaration in his favour when respondent No. 2 was also in the field and had secured a larger number of votes. He could, however, rely on the same contention in supporting the order of the Election Tribunal setting aside the election of the appellant and which was the subject matter of Appeal No. 7. This contention was considered by the High Court in Appeal No. 7 in that context and it was therefore that even though the High Court did not agree with the Election Tribunal about the appellants committing a corrupt practice, it confirmed the setting aside of his election on the ground that he held an office of profit. The finding about his holding an office of profit served the purpose of both the appeals, but merely because of this the decision of the High Court in each appeal cannot be said to be one decision. The High Court came to two decisions. It came to one decision in respect of the invalidity of the appellants election in Appeal No. 7.It came to another decision in Appeal No. 8 with respect to the justification of the claim of respondent No. 1 to be declared as a duly elected candidate, a decision which had to follow the decision that the election of the appellant was invalid and also the finding that respondent No. 2, as Ghatwal, was not a properly nominated candidate. We are therfore of opinion that so long as the order in the appellants appeal No. 7 confirming the order setting aside his election on the ground that he was a holder of an office of profit under the Bihar Government and therefore could not have been a properly nominated candidate stands, he cannot question the finding about his holding an office of profit, in the present appeal, which is founded on the contention that that finding is incorrect. | 1[ds]The finding about his holding an office of profit served the purpose of both the appeals, but merely because of this the decision of the High Court in each appeal cannot be said to be one decision. The High Court came to two decisions. It came to one decision in respect of the invalidity of the appellants election in Appeal No. 7.It came to another decision in Appeal No. 8 with respect to the justification of the claim of respondent No. 1 to be declared as a duly elected candidate, a decision which had to follow the decision that the election of the appellant was invalid and also the finding that respondent No. 2, as Ghatwal, was not a properly nominated candidate. We are therfore of opinion that so long as the order in the appellants appeal No. 7 confirming the order setting aside his election on the ground that he was a holder of an office of profit under the Bihar Government and therefore could not have been a properly nominated candidate stands, he cannot question the finding about his holding an office of profit, in the present appeal, which is founded on the contention that that finding is incorrect15. It is true that both the appeals Nos. 7 and 8 before the High Court arose out of one proceeding before the Election Tribunal. The subject matter of each appeal was, however, different. The subject matter of appeal No. 7 filed by the appellant related to the question of his election being bad or good, in view of the pleadings raised before the Election Tribunal . It had nothing to do with the question of right of respondent No.1 to be declared as duly elected candidate. The claim on such a right is to follow the decision of the question in appeal No. 7 in case the appeal was dismissed, if appeal No. 7 was allowed, the question in appeal No. 8 would not arise for consideration. The subject matter of appeal No. 8 simply did not relate to the validity or otherwise of the election of the appellant. It related to the further action to be taken in case the election of the appellant was bad, on the ground that a Ghatwal holds an office of profit. The decision of the High Court in the two appeals, though stated in one judgment, really amounted to two decisions and not to one decision common to both the appeals. It is true that in his appeal No. 8, the respondent No. 1 had referred to the rejection of his contention by the Election Tribunal about the appellant and respondent No. 2 being holders of an office of profit. He had to challenge the finding on this point because if he did not succeed on it, he could not have got a declaration in his favour when respondent No. 2 was also in the field and had secured a larger number of votes. He could, however, rely on the same contention in supporting the order of the Election Tribunal setting aside the election of the appellant and which was the subject matter of Appeal No. 7. This contention was considered by the High Court in Appeal No. 7 in that context and it was therefore that even though the High Court did not agree with the Election Tribunal about the appellants committing a corrupt practice, it confirmed the setting aside of his election on the ground that he held an office of profitThis does not mean that whenever there be more than one appeal arising out of one suit, only one appeal is competent against the order in any of those appeals irrespective of the fact whether the issues for decision in those appeals were all common or some were common and others raised different prints for determination. The existence of one finding and one decision mentioned in this observation simply contemplates the presence of common points in all the appeals and the absence of any different point in those appeals, and consequently of one decision on those common points in all the appeals. | 1 | 2,943 | 744 | ### Instruction:
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Thus the first appeal was really a consolidated appeal against the decrees in both the appeals and could have been split up for the purposes of record into two separate appeals. This Court itself felt that the circumstances of the case were such that the High Court should have allowed the benefit of S. 5 of the Limitation Act to the appellant. 12. It was in these circumstances that this Court observed, at p. 757 (of SCR) : (at p. 420 of AIR) : It is now well settled that where there has been one trial, one finding, and one decision, there need not be two appeals even though two decrees may have been drawn up. This does not mean that whenever there be more than one appeal arising out of one suit, only one appeal is competent against the order in any of those appeals irrespective of the fact whether the issues for decision in those appeals were all common or some were common and others raised different prints for determination. The existence of one finding and one decision mentioned in this observation simply contemplates the presence of common points in all the appeals and the absence of any different point in those appeals, and consequently of one decision on those common points in all the appeals. 13. This Court further observed at p. 758 (of SCR) : (at p. 420 of AIR) : The question of res judicata arises only when there are two suits. Even when there are two suits it has been held that a decision given simultaneously cannot be a decision in the former suit. When there is only one suit, the question of res judicata does not arise at all and in the present case, both the decrees are in the same case and based on the same judgment, and the matter decided concerns the entire suit. As such there is no question of the application of the principle of res judicata. These observations do not apply to cases which are governed by the general principles of res judicata which rest on the principle that a judgment is conclusive regarding the points decided between the same parties and that the parties should not be vexed twice over for the same cause. 14. We are therefore of opinion that both in view of the facts of the case and the provision of law applicable to that case, that case can be no guide for determining the question before us in this appeal. 15. It is true that both the appeals Nos. 7 and 8 before the High Court arose out of one proceeding before the Election Tribunal. The subject matter of each appeal was, however, different. The subject matter of appeal No. 7 filed by the appellant related to the question of his election being bad or good, in view of the pleadings raised before the Election Tribunal . It had nothing to do with the question of right of respondent No.1 to be declared as duly elected candidate. The claim on such a right is to follow the decision of the question in appeal No. 7 in case the appeal was dismissed, if appeal No. 7 was allowed, the question in appeal No. 8 would not arise for consideration. The subject matter of appeal No. 8 simply did not relate to the validity or otherwise of the election of the appellant. It related to the further action to be taken in case the election of the appellant was bad, on the ground that a Ghatwal holds an office of profit. The decision of the High Court in the two appeals, though stated in one judgment, really amounted to two decisions and not to one decision common to both the appeals. It is true that in his appeal No. 8, the respondent No. 1 had referred to the rejection of his contention by the Election Tribunal about the appellant and respondent No. 2 being holders of an office of profit. He had to challenge the finding on this point because if he did not succeed on it, he could not have got a declaration in his favour when respondent No. 2 was also in the field and had secured a larger number of votes. He could, however, rely on the same contention in supporting the order of the Election Tribunal setting aside the election of the appellant and which was the subject matter of Appeal No. 7. This contention was considered by the High Court in Appeal No. 7 in that context and it was therefore that even though the High Court did not agree with the Election Tribunal about the appellants committing a corrupt practice, it confirmed the setting aside of his election on the ground that he held an office of profit. The finding about his holding an office of profit served the purpose of both the appeals, but merely because of this the decision of the High Court in each appeal cannot be said to be one decision. The High Court came to two decisions. It came to one decision in respect of the invalidity of the appellants election in Appeal No. 7.It came to another decision in Appeal No. 8 with respect to the justification of the claim of respondent No. 1 to be declared as a duly elected candidate, a decision which had to follow the decision that the election of the appellant was invalid and also the finding that respondent No. 2, as Ghatwal, was not a properly nominated candidate. We are therfore of opinion that so long as the order in the appellants appeal No. 7 confirming the order setting aside his election on the ground that he was a holder of an office of profit under the Bihar Government and therefore could not have been a properly nominated candidate stands, he cannot question the finding about his holding an office of profit, in the present appeal, which is founded on the contention that that finding is incorrect.
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The finding about his holding an office of profit served the purpose of both the appeals, but merely because of this the decision of the High Court in each appeal cannot be said to be one decision. The High Court came to two decisions. It came to one decision in respect of the invalidity of the appellants election in Appeal No. 7.It came to another decision in Appeal No. 8 with respect to the justification of the claim of respondent No. 1 to be declared as a duly elected candidate, a decision which had to follow the decision that the election of the appellant was invalid and also the finding that respondent No. 2, as Ghatwal, was not a properly nominated candidate. We are therfore of opinion that so long as the order in the appellants appeal No. 7 confirming the order setting aside his election on the ground that he was a holder of an office of profit under the Bihar Government and therefore could not have been a properly nominated candidate stands, he cannot question the finding about his holding an office of profit, in the present appeal, which is founded on the contention that that finding is incorrect15. It is true that both the appeals Nos. 7 and 8 before the High Court arose out of one proceeding before the Election Tribunal. The subject matter of each appeal was, however, different. The subject matter of appeal No. 7 filed by the appellant related to the question of his election being bad or good, in view of the pleadings raised before the Election Tribunal . It had nothing to do with the question of right of respondent No.1 to be declared as duly elected candidate. The claim on such a right is to follow the decision of the question in appeal No. 7 in case the appeal was dismissed, if appeal No. 7 was allowed, the question in appeal No. 8 would not arise for consideration. The subject matter of appeal No. 8 simply did not relate to the validity or otherwise of the election of the appellant. It related to the further action to be taken in case the election of the appellant was bad, on the ground that a Ghatwal holds an office of profit. The decision of the High Court in the two appeals, though stated in one judgment, really amounted to two decisions and not to one decision common to both the appeals. It is true that in his appeal No. 8, the respondent No. 1 had referred to the rejection of his contention by the Election Tribunal about the appellant and respondent No. 2 being holders of an office of profit. He had to challenge the finding on this point because if he did not succeed on it, he could not have got a declaration in his favour when respondent No. 2 was also in the field and had secured a larger number of votes. He could, however, rely on the same contention in supporting the order of the Election Tribunal setting aside the election of the appellant and which was the subject matter of Appeal No. 7. This contention was considered by the High Court in Appeal No. 7 in that context and it was therefore that even though the High Court did not agree with the Election Tribunal about the appellants committing a corrupt practice, it confirmed the setting aside of his election on the ground that he held an office of profitThis does not mean that whenever there be more than one appeal arising out of one suit, only one appeal is competent against the order in any of those appeals irrespective of the fact whether the issues for decision in those appeals were all common or some were common and others raised different prints for determination. The existence of one finding and one decision mentioned in this observation simply contemplates the presence of common points in all the appeals and the absence of any different point in those appeals, and consequently of one decision on those common points in all the appeals.
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MURUGAN Vs. KESAVA GOUNDER (DEAD) THR LRS AND ORS | legal necessity is not relevant in the case of such invalid transfer. A transferee of such an alienation does not acquire any interest in the property. Such an invalid transaction is not required to be set aside by filing a suit or judicial proceeding. The minor, on attaining majority, can repudiate the transfer in any manner as and when occasion for it arises. After attaining majority if he/she transfers his/her interest in the property in a lawful manner asserting his/her title to the same that is sufficient to show that the minor has repudiated the transfer made by the “de facto guardian/manager”.”31. The above observations were made by this Court in the context of Section 11 of the Act, 1956. Section 11 of the Act contains a statutory prohibition on “de facto guardian” of the minor from disposing of the property of the minor. The transfer made by de facto guardian is, thus, void and can be repudiated in any manner. It is well settled that it is not necessary for a minor or any person claiming under him to file a suit for setting aside a void deed. A void deed can be ignored. The above observations cannot be held to be applicable to transfer made by a natural guardian under Section 8(3) of the Act.32. We may notice one more judgment of this Court relied on by the learned counsel for the appellants that is G. Annamalai Pillai vs. District Revenue Officer and others, (1993) 2 SCC 402. The question which arose for consideration in the said case has been noticed in paragraph 1 of the judgment in following words:“1. The short question for consideration in this appeal is whether lease deed in dispute, which was voidable in terms of Section 8(3) of the Hindu Minority and Guardianship Act, 1956 (the Act) when validly avoided, was effective from the date of the lease deed so as to make the transaction void and unenforceable from the very inception.”33. The land in dispute was owned by one Janarthanan. His father, Purushothaman executed a registered lease deed in favour of appellant on 12.12.1971 on which date the owner was minor. The appellant filed application before Tehsildar to be registered as a tenant which was contested by Janarthanan. Janarthanan contended that his father has no right or title to deal with land and lease by his father is in contravention of Section 8 of Hindu Minority and Guardianship Act, 1956. Tehsildar held that there was no valid lease which order was confirmed by the High Court against which judgment appeal was filed. In paragraphs 5 and 6 following has been laid down:"5. We have heard learned counsel for the parties. We have been taken through the orders of the Revenue authorities, judgment of the learned Single Judge and of the Division Bench of the High Court in writ appeal. The Division Bench of the High Court, in a lucid judgment, answered the question — posed by us in the beginning — in the affirmative and against the appellant-Annamalai Pillai on the following reasoning:“We have already seen that clause (3) of Section 8 of the Hindu Minority and Guardianship Act, 1956, specifically makes the transaction voidable. The lease executed by the guardian in this case is prohibited and in that sense it was without any authority. On the legal efficacy and the distinction between valid, void and voidable agreements, we find the following passage in Salmond on Jurisprudence, Twelfth Edition at page 341:‘… A valid agreement is one which is fully operative in accordance with the intent of the parties. A void agreement is one which entirely fails to receive legal recognition or sanction, the declared will of the parties being wholly destitute of legal efficacy. A voidable agreement stands midway between these two cases. It is not a nullity, but its operation is conditional and not absolute. By reason of some defect in its origin it is liable to be destroyed or cancelled at the option of one of the parties to it. On the exercise of this power the agreement not only ceases to have any efficacy, but is deemed to have been void ab initio. The avoidance of it relates back to the making of it. The hypothetical or contingent efficacy which has hitherto been attributed to it wholly disappears, as if it had never existed. In other words, a voidable agreement is one which is void or valid at the election of one of the parties to it.’This distinction has also been judicially noticed in the Privy Council judgment reported in Satgur Prasad v. Harnarain Das and in the Division Bench judgment in S.N.R. Sundara Rao and Sons, Madurai v. CIT. The Division Bench held, following the said Privy Council judgment as follows:‘When a person, who is entitled to dissent from the alienation, does so, his dissent is in relation to the transaction as such and not merely to the possession of the alienee on the date of such dissent.The effect of the evidence is, therefore, to get rid of the transaction with the result that in law it is as if the transaction had never taken place.’We have, therefore, no doubt that when the fifth respondent avoided the lease executed by his father, the fourth respondent, the lease became void from its inception and no statutory rights, could, therefore, accrue in favour of the appellant herein.”6. We agree with the reasoning and the conclusions reached by the Division Bench of the High Court and as such this appeal has to be dismissed.”34. Learned counsel for the appellants relying on the above decision contends that sale by Balaraman when has been avoided by release deed it became void from the very beginning. There can be no quarrel to the proposition laid down in G. Annamalai Pillai vs. District Revenue Officer and others(supra). In the present case there having been no repudiation of sale deed on behalf of minor, the question of voidable sale deed becoming void does not arise. | 0[ds]7. The trial court has held that suit has been filed within time relying on Article 65 whereas the Appellate Court as well as the High Court relied on Article 60 and held that suit was barred by time.Article 60(b)(ii) refers to a suit when a ward dies before attaining majority. The present is a case where Palanivel died on 11.02.1986 before attaining majority, his date of birth being 16.07.1978, the limitation to avoid instrument made by guardian of the ward is 03 years from the death of ward when he dies before attaining majority. This Court had occasion to consider Articles 60 and 65 of the Limitation Act in reference to alienation made by a de-facto guardian of a minor. In the case of Madhukar Vishwanath Vs. Madahav and Others, (1999) 9 SCC 446, the maternal uncle of the appellant has executed a sale deed. The appellant after becoming major on 22.08.1966 filed a suit on 07.02.1973 praying that transferors be required to deliver the possession of the property. On behalf of appellant, Article 65 was relied for the purposes of limitation. This Court held that it is Article 60 and not Article 65, which is applicable.Now, coming to Article 65, on which reliance has been placed by learned counsel for the appellants. The said period of limitation is available when suit is filed for possession of immovable property on any interest therein based on title. The present is a case where by registered sale deeds the property was conveyed by the father of the minor was eonominee party. Thus, when sale deed was executed by Balaraman he purported to convey the right of the minor also. The sale deeds being voidable and not void, plaintiffs cannot rely on Article 65. We, thus, are of the view that first Appellate Court and the High Court has rightly held that limitation for suit was governed by Article 60 and the suit was clearly barred by time.12. It is important to find from the sale deed what was conveyed. This we say, as appellant has a case that the father of the minor was given a life estate and after his death alone the minor was to get a right. In this regard we may notice the distinction between a vested right and a contingent right. Vested right is the subject matter of Section 19 of the Transfer of Property Act whereas a contingent interest is dealt with Section 21 of the Transfer of Property Act. Since the life estate followed by an absolute right is created by a will, the relevant provision is Section 119 of the Indian Succession Act, 1925.. In the present case, there is no dispute that sale deeds executed by Balaraman on behalf of himself and his minor son Palanivel were executed without obtaining permission of the Court.The alienations, which were voidable, at the instance of minor or on his behalf were required to be set aside before relief for possession can be claimed by the plaintiffs. Suit filed on behalf of the plaintiffs without seeking prayer for setting aside the sale deeds was, thus, not properly framed and could not have beene release deed has been brought on the record as Annexure P-1. A perusal of the release deed does not indicate that there is any reference of alienation made by Balaraman in favour of the defendants. There being no reference of the alienation made by Balaraman on behalf of minor, there is no occasion to read release deed as repudiation of the claim on behalf of the minor. Section 8(3) gives a right to the minor or any person claiming under him, the relevant words in Section 8(3) arethe instance of the minor or any person claiming under, alienation made on behalf of the minor can be avoided by minor or any person claiming under him. In event, minor dies before attaining majority, obviously, his legal heirs will have right to avoid the alienation.We have noticed above that sub-section (3) of Section 8 refers to a disposal of immovable property by a natural guardian in contravention of sub-section (1) or sub-section (2) as voidable. When a registered sale deed is voidable, it is valid till it is avoided in accordance with law. The rights conferred by a registered sale deed are good enough against the whole world and the sale can be avoided in case the property sold is of a minor by a natural guardian atthe instance of the minor or any person claiming underhim. A document which is voidable has to be actually set aside before taking its legal effect.person entitled to avoid such a sale is either the minor or any person claiming under him. This Court held that either the minor, or his legal representative in the event of his death, or his successor-in-interest claiming under him by reason of transfer inter vivos, must bring action within the period prescribed for such a suit, i.e. three years.28. This Court time and again held that setting aside of a sale which is voidable under Section 8(3) is necessary for avoiding a registered sale deed. We may, however, not to be understood that we are holding that in all cases where minor has to avoid disposal of immovable property, it is necessary to bring a suit. There may be creation of charge or lease of immovable property which may not be by registered document. It may depend on facts of each case as to whether it is necessary to bring a suit for avoiding disposal of the immovable property or it can be done in any other manner. We in the present case are concerned with disposal of immovable property by natural guardian of minor by a registered sale deed, hence, we are confining our consideration and discussion only with respect to transfer of immovable property by a registered deed by a natural guardian of minor.29. The Limitation Act, 1963 has been enacted by the Parliament after the enactment of Hindu Minority and Guardianship Act, 1956. Article 60 of the Limitation Act, 1963 which provides for limitationrelating to decrees andThe Limitation Act contemplates suit to set aside a transfer of property made by the guardian of a ward for which limitation is contemplated as three years. Article 60 of the Limitation Act although provides for a limitation of a suit but also clearly indicates that to set aside a transfer of property made by the guardian of a ward a suit is contemplated.The above observations were made by this Court in the context of Section 11 of the Act, 1956. Section 11 of the Act contains a statutory prohibition onof the minor from disposing of the property of the minor. The transfer made by de facto guardian is, thus, void and can be repudiated in any manner. It is well settled that it is not necessary for a minor or any person claiming under him to file a suit for setting aside a void deed. A void deed can be ignored. The above observations cannot be held to be applicable to transfer made by a natural guardian under Section 8(3) of the Act.The land in dispute was owned by one Janarthanan. His father, Purushothaman executed a registered lease deed in favour of appellant on 12.12.1971 on which date the owner was minor. The appellant filed application before Tehsildar to be registered as a tenant which was contested by Janarthanan. Janarthanan contended that his father has no right or title to deal with land and lease by his father is in contravention of Section 8 of Hindu Minority and Guardianship Act, 1956. Tehsildar held that there was no valid lease which order was confirmed by the High Court against which judgment appeal was filed.Learned counsel for the appellants relying on the above decision contends that sale by Balaraman when has been avoided by release deed it became void from the very beginning. There can be no quarrel to the proposition laid down in G. Annamalai Pillai vs. District Revenue Officer and others(supra). In the present case there having been no repudiation of sale deed on behalf of minor, the question of voidable sale deed becoming void does not arise. | 0 | 8,291 | 1,494 | ### Instruction:
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legal necessity is not relevant in the case of such invalid transfer. A transferee of such an alienation does not acquire any interest in the property. Such an invalid transaction is not required to be set aside by filing a suit or judicial proceeding. The minor, on attaining majority, can repudiate the transfer in any manner as and when occasion for it arises. After attaining majority if he/she transfers his/her interest in the property in a lawful manner asserting his/her title to the same that is sufficient to show that the minor has repudiated the transfer made by the “de facto guardian/manager”.”31. The above observations were made by this Court in the context of Section 11 of the Act, 1956. Section 11 of the Act contains a statutory prohibition on “de facto guardian” of the minor from disposing of the property of the minor. The transfer made by de facto guardian is, thus, void and can be repudiated in any manner. It is well settled that it is not necessary for a minor or any person claiming under him to file a suit for setting aside a void deed. A void deed can be ignored. The above observations cannot be held to be applicable to transfer made by a natural guardian under Section 8(3) of the Act.32. We may notice one more judgment of this Court relied on by the learned counsel for the appellants that is G. Annamalai Pillai vs. District Revenue Officer and others, (1993) 2 SCC 402. The question which arose for consideration in the said case has been noticed in paragraph 1 of the judgment in following words:“1. The short question for consideration in this appeal is whether lease deed in dispute, which was voidable in terms of Section 8(3) of the Hindu Minority and Guardianship Act, 1956 (the Act) when validly avoided, was effective from the date of the lease deed so as to make the transaction void and unenforceable from the very inception.”33. The land in dispute was owned by one Janarthanan. His father, Purushothaman executed a registered lease deed in favour of appellant on 12.12.1971 on which date the owner was minor. The appellant filed application before Tehsildar to be registered as a tenant which was contested by Janarthanan. Janarthanan contended that his father has no right or title to deal with land and lease by his father is in contravention of Section 8 of Hindu Minority and Guardianship Act, 1956. Tehsildar held that there was no valid lease which order was confirmed by the High Court against which judgment appeal was filed. In paragraphs 5 and 6 following has been laid down:"5. We have heard learned counsel for the parties. We have been taken through the orders of the Revenue authorities, judgment of the learned Single Judge and of the Division Bench of the High Court in writ appeal. The Division Bench of the High Court, in a lucid judgment, answered the question — posed by us in the beginning — in the affirmative and against the appellant-Annamalai Pillai on the following reasoning:“We have already seen that clause (3) of Section 8 of the Hindu Minority and Guardianship Act, 1956, specifically makes the transaction voidable. The lease executed by the guardian in this case is prohibited and in that sense it was without any authority. On the legal efficacy and the distinction between valid, void and voidable agreements, we find the following passage in Salmond on Jurisprudence, Twelfth Edition at page 341:‘… A valid agreement is one which is fully operative in accordance with the intent of the parties. A void agreement is one which entirely fails to receive legal recognition or sanction, the declared will of the parties being wholly destitute of legal efficacy. A voidable agreement stands midway between these two cases. It is not a nullity, but its operation is conditional and not absolute. By reason of some defect in its origin it is liable to be destroyed or cancelled at the option of one of the parties to it. On the exercise of this power the agreement not only ceases to have any efficacy, but is deemed to have been void ab initio. The avoidance of it relates back to the making of it. The hypothetical or contingent efficacy which has hitherto been attributed to it wholly disappears, as if it had never existed. In other words, a voidable agreement is one which is void or valid at the election of one of the parties to it.’This distinction has also been judicially noticed in the Privy Council judgment reported in Satgur Prasad v. Harnarain Das and in the Division Bench judgment in S.N.R. Sundara Rao and Sons, Madurai v. CIT. The Division Bench held, following the said Privy Council judgment as follows:‘When a person, who is entitled to dissent from the alienation, does so, his dissent is in relation to the transaction as such and not merely to the possession of the alienee on the date of such dissent.The effect of the evidence is, therefore, to get rid of the transaction with the result that in law it is as if the transaction had never taken place.’We have, therefore, no doubt that when the fifth respondent avoided the lease executed by his father, the fourth respondent, the lease became void from its inception and no statutory rights, could, therefore, accrue in favour of the appellant herein.”6. We agree with the reasoning and the conclusions reached by the Division Bench of the High Court and as such this appeal has to be dismissed.”34. Learned counsel for the appellants relying on the above decision contends that sale by Balaraman when has been avoided by release deed it became void from the very beginning. There can be no quarrel to the proposition laid down in G. Annamalai Pillai vs. District Revenue Officer and others(supra). In the present case there having been no repudiation of sale deed on behalf of minor, the question of voidable sale deed becoming void does not arise.
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### Explanation:
get a right. In this regard we may notice the distinction between a vested right and a contingent right. Vested right is the subject matter of Section 19 of the Transfer of Property Act whereas a contingent interest is dealt with Section 21 of the Transfer of Property Act. Since the life estate followed by an absolute right is created by a will, the relevant provision is Section 119 of the Indian Succession Act, 1925.. In the present case, there is no dispute that sale deeds executed by Balaraman on behalf of himself and his minor son Palanivel were executed without obtaining permission of the Court.The alienations, which were voidable, at the instance of minor or on his behalf were required to be set aside before relief for possession can be claimed by the plaintiffs. Suit filed on behalf of the plaintiffs without seeking prayer for setting aside the sale deeds was, thus, not properly framed and could not have beene release deed has been brought on the record as Annexure P-1. A perusal of the release deed does not indicate that there is any reference of alienation made by Balaraman in favour of the defendants. There being no reference of the alienation made by Balaraman on behalf of minor, there is no occasion to read release deed as repudiation of the claim on behalf of the minor. Section 8(3) gives a right to the minor or any person claiming under him, the relevant words in Section 8(3) arethe instance of the minor or any person claiming under, alienation made on behalf of the minor can be avoided by minor or any person claiming under him. In event, minor dies before attaining majority, obviously, his legal heirs will have right to avoid the alienation.We have noticed above that sub-section (3) of Section 8 refers to a disposal of immovable property by a natural guardian in contravention of sub-section (1) or sub-section (2) as voidable. When a registered sale deed is voidable, it is valid till it is avoided in accordance with law. The rights conferred by a registered sale deed are good enough against the whole world and the sale can be avoided in case the property sold is of a minor by a natural guardian atthe instance of the minor or any person claiming underhim. A document which is voidable has to be actually set aside before taking its legal effect.person entitled to avoid such a sale is either the minor or any person claiming under him. This Court held that either the minor, or his legal representative in the event of his death, or his successor-in-interest claiming under him by reason of transfer inter vivos, must bring action within the period prescribed for such a suit, i.e. three years.28. This Court time and again held that setting aside of a sale which is voidable under Section 8(3) is necessary for avoiding a registered sale deed. We may, however, not to be understood that we are holding that in all cases where minor has to avoid disposal of immovable property, it is necessary to bring a suit. There may be creation of charge or lease of immovable property which may not be by registered document. It may depend on facts of each case as to whether it is necessary to bring a suit for avoiding disposal of the immovable property or it can be done in any other manner. We in the present case are concerned with disposal of immovable property by natural guardian of minor by a registered sale deed, hence, we are confining our consideration and discussion only with respect to transfer of immovable property by a registered deed by a natural guardian of minor.29. The Limitation Act, 1963 has been enacted by the Parliament after the enactment of Hindu Minority and Guardianship Act, 1956. Article 60 of the Limitation Act, 1963 which provides for limitationrelating to decrees andThe Limitation Act contemplates suit to set aside a transfer of property made by the guardian of a ward for which limitation is contemplated as three years. Article 60 of the Limitation Act although provides for a limitation of a suit but also clearly indicates that to set aside a transfer of property made by the guardian of a ward a suit is contemplated.The above observations were made by this Court in the context of Section 11 of the Act, 1956. Section 11 of the Act contains a statutory prohibition onof the minor from disposing of the property of the minor. The transfer made by de facto guardian is, thus, void and can be repudiated in any manner. It is well settled that it is not necessary for a minor or any person claiming under him to file a suit for setting aside a void deed. A void deed can be ignored. The above observations cannot be held to be applicable to transfer made by a natural guardian under Section 8(3) of the Act.The land in dispute was owned by one Janarthanan. His father, Purushothaman executed a registered lease deed in favour of appellant on 12.12.1971 on which date the owner was minor. The appellant filed application before Tehsildar to be registered as a tenant which was contested by Janarthanan. Janarthanan contended that his father has no right or title to deal with land and lease by his father is in contravention of Section 8 of Hindu Minority and Guardianship Act, 1956. Tehsildar held that there was no valid lease which order was confirmed by the High Court against which judgment appeal was filed.Learned counsel for the appellants relying on the above decision contends that sale by Balaraman when has been avoided by release deed it became void from the very beginning. There can be no quarrel to the proposition laid down in G. Annamalai Pillai vs. District Revenue Officer and others(supra). In the present case there having been no repudiation of sale deed on behalf of minor, the question of voidable sale deed becoming void does not arise.
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Messrs Karnal Distillery Company Limited Vs. The Union Of India | up to the quantity agreed to in Clause 1 (i.e. 12, 000 L. P. gallons) ex-warehouse Mandi at the rates per dozen bottles, mentioned therein. The undertaking is by the contractors to supply up to the quantity agreed. Clause 1 contemplates the supply to the liquor licences but the two clauses are silent as to from whom the contractors will get payment. As the contracting parties are the plaintiffs and the Government, in the absence of specific provision to the contrary, it is only the contracting party i.e. the Government which will have to pay for the goods supplied at the rate mentioned to the person supplying the goods. The clause does not contemplate that the contractor should look forward to the liquor licences for payment. There is no privity of contract between the contractor and the liquor licences. The construction of the first 3 clauses of the agreement would show that by the terms of the contract the Government had agreed to pay the contractor for the liquor supply. The other clause of the agreement also envisage the right of the Government to terminate the contract without any notice for breach of any of the conditions and for confiscation of the security deposit in the event of the breach of the terms of the contract. It was submitted by Mr. Mahajan, the learned Counsel for the respondents, that Ex. P-1 cannot be construed as an agreement between parties as the Government was acting in exercise of its powers as a sovereign body and as the liquor trade has to be regulated for the benefit of the public, it is incumbent on the Government to lay down rules and to regulate supply. By virtue of this sovereign power the plaintiff was licensed under Ex. P-1 to manufacture and to supply to the liquor licensees the quantity of liquor at the rates specified. As the terms of the contract were regulatory in character on March 31, 1951 when the period expired, the Collector as a sovereign authority had a right to seize the liquor and dispose it of according to the rules without reference to the terms of the contract. In support of his contention the learned Counsel relied on a decision of this Court reported in Har Shankar v. The Deputy Excise & Taxation Commissioner (1975) 3 SCR 254 : (1975) 1 SCC 737 ). The decision is not helpful in deciding the question at issue for there is no dispute that the regulation of production and distribution of liquor is one of sovereign functions and the authorities could act under the several enactments and rules armed for the above purpose. But in the present case the agreement was entered into purely as a contract between the plaintiff and the Government for the supply of liquor at the particular rate. There is no doubt that a licence from the Government is necessary for the manufacture and the Government had in fact permitted the plaintiff to manufacture and supply the liquor and had contracted for the price to be paid and has also agreed on the price for the liquor supplied. We have also found that under the terms of the contract the Government had agreed to pay the price of the liquor supplied. Therefore the receipt of the supply and payment of the price for it is purely a bilateral contract and does not involve exercise of any sovereign power. The contractor having supplied the quantity is entitled to be paid at the rates specified. If on March 31 the Government wanted to seize or impound the liquor their obligation to pay at the contract rate does not cease. 7. The trial Court was therefore right in holding that Ex. P-1 is a bilateral contract and that its terms cannot be changed according to the will of the defendant. The trial Court is also right in coming to the conclusion that the quantity of the disputed liquor was not sold by the plaintiff to liquor licensees but was taken over by the Government. We are unable to agree with the view taken by the High Court that according to the terms of the contract the liquor was to be paid for by the liquor licensees direct at the price agreed to between the plaintiff and the Government. We are also unable to agree with the High Courts conclusion that the contract came to an end by efflux of time and as the plaintiff still had 264.8 L. P. gallons lying undisposed of the plaintiff is not entitled to be paid according to the contract price. As we have pointed out the contractors have fulfilled their part of the contract by supplying the quantity of liquor agreed upon. In the view that we have taken that the contract was between the plaintiff and the Government and the plaintiff can look to the Government for the value of the liquor supplied it is not necessary for us to consider the question whether the High Court should have permitted to treat the suit as one for award of compensation for the los suffered by the plaintiff due to the Governments wrongful seizure of the liquor. We are satisfied that on the terms of the contract the Government was bound to pay the price of 2645.8 L. P. gallons at the contracted rate and the plea of the Government that the contract had come to an end by efflux of time and that they could fix the price according to the Excise Rules and Regulations cannot be acceded. 8. The High Court had also declined to award costs to the plaintiff. Mr. S. P. Jaiswal, the party in person, brought to our notice the letter Ex. P-11 dated August 1, 1952 in which he requested that the agreed sum of Rs. 16, 333/5/- may be paid to him without prejudice pending a settlement but this request was not granted. We find therefore that the plaintiff is entitled to the interest on the amount due. | 1[ds]The clause does not contemplate that the contractor should look forward to the liquor licences for payment. There is no privity of contract between the contractor and the liquor licences. The construction of the first 3 clauses of the agreement would show that by the terms of the contract the Government had agreed to pay the contractor for the liquor supply. The other clause of the agreement also envisage the right of the Government to terminate the contract without any notice for breach of any of the conditions and for confiscation of the security deposit in the event of the breach of the terms of the contractThe decision is not helpful in deciding the question at issue for there is no dispute that the regulation of production and distribution of liquor is one of sovereign functions and the authorities could act under the several enactments and rules armed for the above purpose. But in the present case the agreement was entered into purely as a contract between the plaintiff and the Government for the supply of liquor at the particular rate. There is no doubt that a licence from the Government is necessary for the manufacture and the Government had in fact permitted the plaintiff to manufacture and supply the liquor and had contracted for the price to be paid and has also agreed on the price for the liquor supplied. We have also found that under the terms of the contract the Government had agreed to pay the price of the liquor supplied. Therefore the receipt of the supply and payment of the price for it is purely a bilateral contract and does not involve exercise of any sovereign power. The contractor having supplied the quantity is entitled to be paid at the rates specified. If on March 31 the Government wanted to seize or impound the liquor their obligation to pay at the contract rate does not cease7. The trial Court was therefore right in holding that Ex.1 is a bilateral contract and that its terms cannot be changed according to the will of the defendant. The trial Court is also right in coming to the conclusion that the quantity of the disputed liquor was not sold by the plaintiff to liquor licensees but was taken over by the Government. We are unable to agree with the view taken by the High Court that according to the terms of the contract the liquor was to be paid for by the liquor licensees direct at the price agreed to between the plaintiff and the Government. We are also unable to agree with the High Courts conclusion that the contract came to an end by efflux of time and as the plaintiff still had 264.8 L. P. gallons lying undisposed of the plaintiff is not entitled to be paid according to the contract price. As we have pointed out the contractors have fulfilled their part of the contract by supplying the quantity of liquor agreed upon. In the view that we have taken that the contract was between the plaintiff and the Government and the plaintiff can look to the Government for the value of the liquor supplied it is not necessary for us to consider the question whether the High Court should have permitted to treat the suit as one for award of compensation for the los suffered by the plaintiff due to the Governments wrongful seizure of the liquor. We are satisfied that on the terms of the contract the Government was bound to pay the price of 2645.8 L. P. gallons at the contracted rate and the plea of the Government that the contract had come to an end by efflux of time and that they could fix the price according to the Excise Rules and Regulations cannot be acceded8. The High Court had also declined to award costs to the plaintiff. Mr. S. P. Jaiswal, the party in person, brought to our notice the letter Ex.1 dated August 1, 1952 in which he requested that the agreed sum of Rs. 16, 333/5/may be paid to him without prejudice pending a settlement but this request was not granted. We find therefore that the plaintiff is entitled to the interest on the amount due. | 1 | 2,514 | 737 | ### Instruction:
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up to the quantity agreed to in Clause 1 (i.e. 12, 000 L. P. gallons) ex-warehouse Mandi at the rates per dozen bottles, mentioned therein. The undertaking is by the contractors to supply up to the quantity agreed. Clause 1 contemplates the supply to the liquor licences but the two clauses are silent as to from whom the contractors will get payment. As the contracting parties are the plaintiffs and the Government, in the absence of specific provision to the contrary, it is only the contracting party i.e. the Government which will have to pay for the goods supplied at the rate mentioned to the person supplying the goods. The clause does not contemplate that the contractor should look forward to the liquor licences for payment. There is no privity of contract between the contractor and the liquor licences. The construction of the first 3 clauses of the agreement would show that by the terms of the contract the Government had agreed to pay the contractor for the liquor supply. The other clause of the agreement also envisage the right of the Government to terminate the contract without any notice for breach of any of the conditions and for confiscation of the security deposit in the event of the breach of the terms of the contract. It was submitted by Mr. Mahajan, the learned Counsel for the respondents, that Ex. P-1 cannot be construed as an agreement between parties as the Government was acting in exercise of its powers as a sovereign body and as the liquor trade has to be regulated for the benefit of the public, it is incumbent on the Government to lay down rules and to regulate supply. By virtue of this sovereign power the plaintiff was licensed under Ex. P-1 to manufacture and to supply to the liquor licensees the quantity of liquor at the rates specified. As the terms of the contract were regulatory in character on March 31, 1951 when the period expired, the Collector as a sovereign authority had a right to seize the liquor and dispose it of according to the rules without reference to the terms of the contract. In support of his contention the learned Counsel relied on a decision of this Court reported in Har Shankar v. The Deputy Excise & Taxation Commissioner (1975) 3 SCR 254 : (1975) 1 SCC 737 ). The decision is not helpful in deciding the question at issue for there is no dispute that the regulation of production and distribution of liquor is one of sovereign functions and the authorities could act under the several enactments and rules armed for the above purpose. But in the present case the agreement was entered into purely as a contract between the plaintiff and the Government for the supply of liquor at the particular rate. There is no doubt that a licence from the Government is necessary for the manufacture and the Government had in fact permitted the plaintiff to manufacture and supply the liquor and had contracted for the price to be paid and has also agreed on the price for the liquor supplied. We have also found that under the terms of the contract the Government had agreed to pay the price of the liquor supplied. Therefore the receipt of the supply and payment of the price for it is purely a bilateral contract and does not involve exercise of any sovereign power. The contractor having supplied the quantity is entitled to be paid at the rates specified. If on March 31 the Government wanted to seize or impound the liquor their obligation to pay at the contract rate does not cease. 7. The trial Court was therefore right in holding that Ex. P-1 is a bilateral contract and that its terms cannot be changed according to the will of the defendant. The trial Court is also right in coming to the conclusion that the quantity of the disputed liquor was not sold by the plaintiff to liquor licensees but was taken over by the Government. We are unable to agree with the view taken by the High Court that according to the terms of the contract the liquor was to be paid for by the liquor licensees direct at the price agreed to between the plaintiff and the Government. We are also unable to agree with the High Courts conclusion that the contract came to an end by efflux of time and as the plaintiff still had 264.8 L. P. gallons lying undisposed of the plaintiff is not entitled to be paid according to the contract price. As we have pointed out the contractors have fulfilled their part of the contract by supplying the quantity of liquor agreed upon. In the view that we have taken that the contract was between the plaintiff and the Government and the plaintiff can look to the Government for the value of the liquor supplied it is not necessary for us to consider the question whether the High Court should have permitted to treat the suit as one for award of compensation for the los suffered by the plaintiff due to the Governments wrongful seizure of the liquor. We are satisfied that on the terms of the contract the Government was bound to pay the price of 2645.8 L. P. gallons at the contracted rate and the plea of the Government that the contract had come to an end by efflux of time and that they could fix the price according to the Excise Rules and Regulations cannot be acceded. 8. The High Court had also declined to award costs to the plaintiff. Mr. S. P. Jaiswal, the party in person, brought to our notice the letter Ex. P-11 dated August 1, 1952 in which he requested that the agreed sum of Rs. 16, 333/5/- may be paid to him without prejudice pending a settlement but this request was not granted. We find therefore that the plaintiff is entitled to the interest on the amount due.
### Response:
1
### Explanation:
The clause does not contemplate that the contractor should look forward to the liquor licences for payment. There is no privity of contract between the contractor and the liquor licences. The construction of the first 3 clauses of the agreement would show that by the terms of the contract the Government had agreed to pay the contractor for the liquor supply. The other clause of the agreement also envisage the right of the Government to terminate the contract without any notice for breach of any of the conditions and for confiscation of the security deposit in the event of the breach of the terms of the contractThe decision is not helpful in deciding the question at issue for there is no dispute that the regulation of production and distribution of liquor is one of sovereign functions and the authorities could act under the several enactments and rules armed for the above purpose. But in the present case the agreement was entered into purely as a contract between the plaintiff and the Government for the supply of liquor at the particular rate. There is no doubt that a licence from the Government is necessary for the manufacture and the Government had in fact permitted the plaintiff to manufacture and supply the liquor and had contracted for the price to be paid and has also agreed on the price for the liquor supplied. We have also found that under the terms of the contract the Government had agreed to pay the price of the liquor supplied. Therefore the receipt of the supply and payment of the price for it is purely a bilateral contract and does not involve exercise of any sovereign power. The contractor having supplied the quantity is entitled to be paid at the rates specified. If on March 31 the Government wanted to seize or impound the liquor their obligation to pay at the contract rate does not cease7. The trial Court was therefore right in holding that Ex.1 is a bilateral contract and that its terms cannot be changed according to the will of the defendant. The trial Court is also right in coming to the conclusion that the quantity of the disputed liquor was not sold by the plaintiff to liquor licensees but was taken over by the Government. We are unable to agree with the view taken by the High Court that according to the terms of the contract the liquor was to be paid for by the liquor licensees direct at the price agreed to between the plaintiff and the Government. We are also unable to agree with the High Courts conclusion that the contract came to an end by efflux of time and as the plaintiff still had 264.8 L. P. gallons lying undisposed of the plaintiff is not entitled to be paid according to the contract price. As we have pointed out the contractors have fulfilled their part of the contract by supplying the quantity of liquor agreed upon. In the view that we have taken that the contract was between the plaintiff and the Government and the plaintiff can look to the Government for the value of the liquor supplied it is not necessary for us to consider the question whether the High Court should have permitted to treat the suit as one for award of compensation for the los suffered by the plaintiff due to the Governments wrongful seizure of the liquor. We are satisfied that on the terms of the contract the Government was bound to pay the price of 2645.8 L. P. gallons at the contracted rate and the plea of the Government that the contract had come to an end by efflux of time and that they could fix the price according to the Excise Rules and Regulations cannot be acceded8. The High Court had also declined to award costs to the plaintiff. Mr. S. P. Jaiswal, the party in person, brought to our notice the letter Ex.1 dated August 1, 1952 in which he requested that the agreed sum of Rs. 16, 333/5/may be paid to him without prejudice pending a settlement but this request was not granted. We find therefore that the plaintiff is entitled to the interest on the amount due.
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Peninsular Traders, Perumbavoor and Another Vs. Dy. Commissioner, Sales Tax (Law), Kerala | by them on the date from which the revised price became effective. Clause (6) required the firm to send to the company monthly statements showing the total quantity of the said chemicals received from the company during the month, the quantity and value of the sales effected by the firm on the companys behalf during that month and the closing stock remaining unsold at the end of the month. The firm was required to send true copies of invoices showing full details of the sales effected by the firm. The sale proceeds were to be debited to the firms account with the company. Clause (9) required the firm to collect sales tax on the sales of the companys products effected by the firm and remit the same to the company. By reason of clause (10) the firm was entitled to commission at the rate of 6% on the value of goods sold by the firm and remitted to the company, the commission being credited to the firms account at the end of every month. Clause (11) stated that enquiries received by the company for the firms territory would generally be passed on to the firm. Clause (12) required the firm to push the sales of the companys chemicals in its territory and required the firm not to deal in any product of a similar nature which was likely to affect adversely the sales of the companys said chemicals 6. As against these clauses in the agreement, which are strongly indicative of the relationship of principal and agent between the company and the firm, there are clauses 4, 5, 7 and 8 upon which the High Court relied and which are stressed by learned counsel for the Sales Tax authorities. Clause (4) read thus "Full payment for the total quantity lifted by you should be made at the end of the month. For any delay beyond 30 days from the date of delivery of the material you will pay interest at the rate of 9% per annum on the amount outstanding from time to time. If you make default in payment for a period of 2 months, the company reserves the right to terminate this appointment without notice to you. But the termination of the appointment will not prejudice the right of the company to proceed against you for the balance amount due to the company." * Clause (5) stated that the company would endeavour to make regular supplies of the said chemicals to the firm but that the firm should arrange to collect the same from its works. It fixed the quota to which the firm was entitled. Clauses (7) and (8) read thus "7. You will be responsible for the realisation of the sale proceeds against all sales effected by you and you will be responsible for any bad debts or delays in payment by the parties concerned 8. You will be responsible for the safe custody of the material collected by you and keeping it in good condition and no expenses or charges incurred by you on this account will be borne by us. You will not be entitled to any credit or damaged material." * 7. The overall effect the agreement produced on our mind is that it is an agreement of agency and that there is no transfer of the said chemicals from the company to the firm. As is clear from several clauses in the agreement, particularly clauses (6) and (10), a running account was to be maintained by the company of its dealings with the firm and that the value of the said chemicals was to be debited to the firms account only when sold by the firm. Clause (4), when it required payment to be made of the quantity lifted by the firm by the end of the month or be charged interest at the rate of 9%, therefore, suggests that the firms account would be debited only in the event that payment for all the chemicals lifted delivery during the month had not been sold by the month-end. There is nothing in it which indicates that the property in the unsold chemicals would pass to the firm at the month-end. Clause (5) does not carry the matter further. Clause (7) is not an unusual clause, of the agent being responsible for the solvency of purchasers from itself; so also clause (8), the terms whereof are not an unusual obligation undertaken by an agent8. The view that we take is supported by the observations of the Tribunal made in regard to the books of account of the company. The relevant entry, quoted below, speaks of the manner in which the parties implemented the agreement "We hereby certify that the sum of Rs. 11, 79, 097.00 being the value of 1100.70 metric tonnes of trisodium phosphate sold by Messrs Peninsular Traders, Perumbavoor, Kerala State on our behalf during the period from 1-4-1971 to 31-3-1972 have been included in our annual return for the year 1971-72 submitted to the Assistant Commissioner of Sales Tax (Assessment), Sales Tax Office, Special Circle, Ernakulam, and that the sales tax collected from them in respect of the above sales have been remitted to him." * (emphasis supplied) 9. The stress by learned counsel for the Sales Tax authorities on the judgment of this Court in Alwaye Agencies v. Dy. Commr. of Agricultural Income Tax and Sales Tax would appear to be somewhat misplaced for what the distributor got under the agreement that was construed in that case was a rebate and not a commission. It was also pointed out that supplies were made to the distributor against payment, either immediate or deferred, and even when the goods were lifted directly by customers it was the distributor who had to guarantee their payment. These circumstances showed that in respect of such transactions the property in those goods passed to the distributor when the bills were endorsed and handed over to it. The agreement before us does not contain such clauses | 1[ds]9. The stress by learned counsel for the Sales Tax authorities on the judgment of this Court in Alwaye Agencies v. Dy. Commr. of Agricultural Income Tax and Sales Tax would appear to be somewhat misplaced for what the distributor got under the agreement that was construed in that case was a rebate and not a commission. It was also pointed out that supplies were made to the distributor against payment, either immediate or deferred, and even when the goods were lifted directly by customers it was the distributor who had to guarantee their payment. These circumstances showed that in respect of such transactions the property in those goods passed to the distributor when the bills were endorsed and handed over to it. The agreement before us does not contain suchThe overall effect the agreement produced on our mind is that it is an agreement of agency and that there is no transfer of the said chemicals from the company to the firm. As is clear from several clauses in the agreement, particularly clauses (6) and (10), a running account was to be maintained by the company of its dealings with the firm and that the value of the said chemicals was to be debited to the firms account only when sold by the firm. Clause (4), when it required payment to be made of the quantity lifted by the firm by the end of the month or be charged interest at the rate of 9%, therefore, suggests that the firms account would be debited only in the event that payment for all the chemicals lifted delivery during the month had not been sold by theThere is nothing in it which indicates that the property in the unsold chemicals would pass to the firm at theClause (5) does not carry the matter further. Clause (7) is not an unusual clause, of the agent being responsible for the solvency of purchasers from itself; so also clause (8), the terms whereof are not an unusual obligation undertaken by an agent8. The view that we take is supported by the observations of the Tribunal made in regard to the books of account of the company. | 1 | 1,610 | 400 | ### Instruction:
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by them on the date from which the revised price became effective. Clause (6) required the firm to send to the company monthly statements showing the total quantity of the said chemicals received from the company during the month, the quantity and value of the sales effected by the firm on the companys behalf during that month and the closing stock remaining unsold at the end of the month. The firm was required to send true copies of invoices showing full details of the sales effected by the firm. The sale proceeds were to be debited to the firms account with the company. Clause (9) required the firm to collect sales tax on the sales of the companys products effected by the firm and remit the same to the company. By reason of clause (10) the firm was entitled to commission at the rate of 6% on the value of goods sold by the firm and remitted to the company, the commission being credited to the firms account at the end of every month. Clause (11) stated that enquiries received by the company for the firms territory would generally be passed on to the firm. Clause (12) required the firm to push the sales of the companys chemicals in its territory and required the firm not to deal in any product of a similar nature which was likely to affect adversely the sales of the companys said chemicals 6. As against these clauses in the agreement, which are strongly indicative of the relationship of principal and agent between the company and the firm, there are clauses 4, 5, 7 and 8 upon which the High Court relied and which are stressed by learned counsel for the Sales Tax authorities. Clause (4) read thus "Full payment for the total quantity lifted by you should be made at the end of the month. For any delay beyond 30 days from the date of delivery of the material you will pay interest at the rate of 9% per annum on the amount outstanding from time to time. If you make default in payment for a period of 2 months, the company reserves the right to terminate this appointment without notice to you. But the termination of the appointment will not prejudice the right of the company to proceed against you for the balance amount due to the company." * Clause (5) stated that the company would endeavour to make regular supplies of the said chemicals to the firm but that the firm should arrange to collect the same from its works. It fixed the quota to which the firm was entitled. Clauses (7) and (8) read thus "7. You will be responsible for the realisation of the sale proceeds against all sales effected by you and you will be responsible for any bad debts or delays in payment by the parties concerned 8. You will be responsible for the safe custody of the material collected by you and keeping it in good condition and no expenses or charges incurred by you on this account will be borne by us. You will not be entitled to any credit or damaged material." * 7. The overall effect the agreement produced on our mind is that it is an agreement of agency and that there is no transfer of the said chemicals from the company to the firm. As is clear from several clauses in the agreement, particularly clauses (6) and (10), a running account was to be maintained by the company of its dealings with the firm and that the value of the said chemicals was to be debited to the firms account only when sold by the firm. Clause (4), when it required payment to be made of the quantity lifted by the firm by the end of the month or be charged interest at the rate of 9%, therefore, suggests that the firms account would be debited only in the event that payment for all the chemicals lifted delivery during the month had not been sold by the month-end. There is nothing in it which indicates that the property in the unsold chemicals would pass to the firm at the month-end. Clause (5) does not carry the matter further. Clause (7) is not an unusual clause, of the agent being responsible for the solvency of purchasers from itself; so also clause (8), the terms whereof are not an unusual obligation undertaken by an agent8. The view that we take is supported by the observations of the Tribunal made in regard to the books of account of the company. The relevant entry, quoted below, speaks of the manner in which the parties implemented the agreement "We hereby certify that the sum of Rs. 11, 79, 097.00 being the value of 1100.70 metric tonnes of trisodium phosphate sold by Messrs Peninsular Traders, Perumbavoor, Kerala State on our behalf during the period from 1-4-1971 to 31-3-1972 have been included in our annual return for the year 1971-72 submitted to the Assistant Commissioner of Sales Tax (Assessment), Sales Tax Office, Special Circle, Ernakulam, and that the sales tax collected from them in respect of the above sales have been remitted to him." * (emphasis supplied) 9. The stress by learned counsel for the Sales Tax authorities on the judgment of this Court in Alwaye Agencies v. Dy. Commr. of Agricultural Income Tax and Sales Tax would appear to be somewhat misplaced for what the distributor got under the agreement that was construed in that case was a rebate and not a commission. It was also pointed out that supplies were made to the distributor against payment, either immediate or deferred, and even when the goods were lifted directly by customers it was the distributor who had to guarantee their payment. These circumstances showed that in respect of such transactions the property in those goods passed to the distributor when the bills were endorsed and handed over to it. The agreement before us does not contain such clauses
### Response:
1
### Explanation:
9. The stress by learned counsel for the Sales Tax authorities on the judgment of this Court in Alwaye Agencies v. Dy. Commr. of Agricultural Income Tax and Sales Tax would appear to be somewhat misplaced for what the distributor got under the agreement that was construed in that case was a rebate and not a commission. It was also pointed out that supplies were made to the distributor against payment, either immediate or deferred, and even when the goods were lifted directly by customers it was the distributor who had to guarantee their payment. These circumstances showed that in respect of such transactions the property in those goods passed to the distributor when the bills were endorsed and handed over to it. The agreement before us does not contain suchThe overall effect the agreement produced on our mind is that it is an agreement of agency and that there is no transfer of the said chemicals from the company to the firm. As is clear from several clauses in the agreement, particularly clauses (6) and (10), a running account was to be maintained by the company of its dealings with the firm and that the value of the said chemicals was to be debited to the firms account only when sold by the firm. Clause (4), when it required payment to be made of the quantity lifted by the firm by the end of the month or be charged interest at the rate of 9%, therefore, suggests that the firms account would be debited only in the event that payment for all the chemicals lifted delivery during the month had not been sold by theThere is nothing in it which indicates that the property in the unsold chemicals would pass to the firm at theClause (5) does not carry the matter further. Clause (7) is not an unusual clause, of the agent being responsible for the solvency of purchasers from itself; so also clause (8), the terms whereof are not an unusual obligation undertaken by an agent8. The view that we take is supported by the observations of the Tribunal made in regard to the books of account of the company.
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ALD AUTOMOTIVE PVT LTD Vs. THE COMMERCIAL TAX OFFICER AND ORS NOW UPGRADED AS THE ASSISTANT COMMISSIONER (CT) | the main object of the statute. The interpretation of the Rule 9(j) in the above case was on its own statutory scheme and has no bearing in the present case. We, thus, are of the view that time period as provided in Section 19(11) is mandatory. Issue no. 5 43. One of the submission advanced by learned counsel for the appellant was that appellant assessee had valid explanation for not claiming Input Tax Credit within the time provided under Section 19(11), hence, the authority had jurisdiction to extend the time. It is submitted that time period as contained in Section 19(11) is not akin to the law of limitation. We have already found that expression ?shall? occurring in Section 19(11) is mandatory whose compliance is necessary for claiming Input Tax Credit. The appellant has placed reliance on judgment of this Court reported in Surinder Singh versus Central Government and Others, 1986 (4) SCC 667. Learned Counsel submits that in the above case Central Government which was exercising authority under Displaced Persons (Compensation and Rehabilitation) Act, 1954 was held to be entitled to extend the time which was required for depositing the auction amount. In the above case, the officials of the Central Government were exercising Revisional Jurisdiction as conferred under Section 33 of the Act to the Central Government. Facts of the case were noticed in paragraph 9 to the following effect: - ?9. The second question relates to the validity of the order of Shri Rajni Kant the officer to whom power under Section 33 was delegated, extending time to enable the appellant to deposit the auction-sale money. Shri Rajni Kant by his order dated February 6, 1970 exercising the delegated powers of the Central Government under Section 33 of the Act set aside the order cancelling the auction- sale held in August 1959 and permitted the appellant to deposit the balance of the purchase money within fifteen days from the date of the order with a default clause that on his failure his petition would stand dismissed. In accordance with that order appellant was entitled to deposit the money till February 21, 1970. It appears that on appellant?s request the office prepared a challan which was valid up to February 20, 1970. The appellant went to the State Bank on February 20, 1970 to make the deposit but due to rush he could not make the deposit. On his application Shri Rajni Kant extended the time permitting the deposit by February 28, 1970 as a result of which a fresh challan was prepared which was valid up to February 28, 1970 and within that period appellant deposited the balance purchase money………? 44. Section 33 has been extracted in paragraph 10 of the judgment which is to the following effect: - ?10. Section 33 reads as under: ?Certain residuary powers of Central Government. —The Central Government may at any time call for the record of any proceeding under this Act and may pass such order in relation thereto as in its opinion the circumstances of the case require and as is not inconsistent with any of the provisions contained in this Act or the rules made thereunder.? 45. This Court in the above case held that the officer was exercising power of Central Government under Section 33 and had ample jurisdiction to set aside the Orders of the sub-ordinate authorities canceling the order and to permit the appellant to deposit the balance amount of the purchase money. Following observations while examining the power given under Section 33 had been made: ?11. The power conferred upon the Central Government under this provision is a residuary power in nature as the title of the section itself indicates. By enacting this section Parliament has conferred wide powers on the Central Government to call for the record of any case and to pass any order which it may think fit in the circumstances of the case. The only limitation on exercise of this power is that the Central Government shall not pass any order which may be inconsistent with any of the provisions of the Act and the rules made thereunder. Therefore, the Central Government or the delegated authority has power to set aside any order of the subordinate authorities, or to issue directions which it may consider necessary on the facts of a case subject to the aforesaid rider. This power is intended to be used to do justice and to mitigate hardship to a party unriddled by technicalities. Shri Rajni Kant while exercising powers of the Central Government under Section 33 of the Act had ample jurisdiction to set aside the orders of the subordinate authorities cancelling the auction held on August 24, 1959 and to permit the appellant to deposit the balance amount of the purchase money and he further had jurisdiction to extend the time initially granted by him. Extension of time to enable the appellant to deposit the money did not amount to review of the earlier order dated February 6, 1970 ? 46. The above case was thus on its own facts, this Court held that in exercise of residuary power of Central Government, it had jurisdiction to pass such order in relation thereto as in its opinion the circumstances in the case require. In the scheme of Tamil Nadu Value Added Tax Act, 2006, there is no power conferred on any authority under the Act to dilute the mandatory requirement under Section 19(11). The taxing statute has to be strictly construed. Nothing is to be read in, noting is to be implied and language used in taxing statute had to be looked into fairly. The benefits envisaged in the taxing statute had to be extended as per the restrictions and conditions envisaged therein. The statute having not given any indication for extension of time which is a condition for claiming Input Tax Credit, the submission that period could have been extended by assessing authority is unfounded and cannot be accepted. Issue number 5 is answered accordingly. | 1[ds]27. The ground on which Rule 6 was held as ultra vires has been clearly noticed by this Court in paragraph 6 as noticed above. It is relevant to notice that in the same paragraph this Court had noticed Section 13(4)(g) of the Act where the State was empowered to make rule with regard to the time. Thus, this Court noticed the contradiction in phraseology of Section 8 sub-Section (4) and Section 13 sub-section (4) and held that non-mention of time in Section 8(4) is for clearly denying the rule making power to make any rule pertaining to the time. Thus, the above case has no bearing in the present controversy, since, in the present case the time period is prescribed in Section 19(11) itself which is a part of the Act and has to be read with Section 3 sub-section (3).The above case also does not come to help the appellant in the present appeal. In the above case there was no case that manufacturer does not fulfill any essential eligibility to obtain MODVAT credit on the additional duty paid by the manufacturer. The amendment which was made effective w.e.f. 15.04.2017 providing availability of MODVAT credit on additional duty paid was held to be clarificatory, hence, did not affect the right of MODVAT credit. The above case was thus on its own facts.The Constitutional validity of Section 19(20) was upheld. The above decision is a clear authority with proposition that Input Tax Credit is admissible only as per conditions enumerated under Section 19 of the Tamil Nadu Value Added Tax Act, 2016. The interpretation put up by this Court on Section 3(2) and 3(3) and Section 19(2) is fully attracted while considering the same provisions of Section 3(2) and 3(3) and provision of Section 19(11) of the Act. The Statutory scheme delineated by Section 19(11) neither can be said to be arbitrary nor can be said to violate the right guaranteed to the dealer under Article 19(1) (g) of the Constitution. We thus do not find any infirmity in the judgment of the High Court upholding the validity of Section 19(11) of the Act. Both the issues are answered accordingly.Issue Number 3 and 4The alternative submission pressed by learned Counsel for the appellant was that Section 19(11) cannot be held to be mandatory and it is only a directory provision, non-compliance of which cannot be ground of denial of Input Tax Credit to the appellant. The conditions under which Input Tax Credit is to be given are all enumerated in Section 19 as noticed above. The condition under which the concession and benefit is given is always to be strictly construed. In event, it is accepted that there is no time period for claiming Input Tax Credit as contained in Section 19(11), the provision become too flexible and give rise to large number of difficulties including difficulty in verification of claim of Input Credit. Taxing Statutes contains self-contained scheme of levy, computation and collection of tax. The time under which a return is to be filed for purpose of assessment of the tax cannot be dependent on the will of a dealer. The use of word ‘shall? in Section 19(11) does not admit to any other interpretation except that the submission of Input claimed cannot be beyond the time prescribed. Section 19(11), in fact, gives additional time period for claim of Input Credit. The Statutory scheme contemplates filing of the timely return before 20th of the succeeding month.Section 19(11) thus allowed an extended period for Input Credit which if not claimed in any month can be claimed before the end of the financial year or before the 90 days from the date of purchase whichever is later. The provision of Section 19(11) is thus an additional benefit given to dealer for claiming Input Credit in extended period. The use of word ?shall make the claim? needs no other interpretation.This Court in the above case clearly laid down that whether particular provision is mandatory or directory has to be determined on the basis of object of particular provision and design of the statute. The period of 10 days in submitting the report of the public analyst was held to be directory for the reason that on the negligence of those to whom public duties are entrusted no one should suffer. Such interpretation should not be put which may promote the public mischief and cause public inconvenience and defeat the main object of the statute. The interpretation of the Rule 9(j) in the above case was on its own statutory scheme and has no bearing in the present case. We, thus, are of the view that time period as provided in Section 19(11) is mandatory.Issue no. 5the above case, the officials of the Central Government were exercising Revisional Jurisdiction as conferred under Section 33 of the Act to the Central Government.This Court in the above case held that the officer was exercising power of Central Government under Section 33 and had ample jurisdiction to set aside the Orders of the sub-ordinate authorities canceling the order and to permit the appellant to deposit the balance amount of the purchase money.The above case was thus on its own facts, this Court held that in exercise of residuary power of Central Government, it had jurisdiction to pass such order in relation thereto as in its opinion the circumstances in the case require. In the scheme of Tamil Nadu Value Added Tax Act, 2006, there is no power conferred on any authority under the Act to dilute the mandatory requirement under Section 19(11). The taxing statute has to be strictly construed. Nothing is to be read in, noting is to be implied and language used in taxing statute had to be looked into fairly. The benefits envisaged in the taxing statute had to be extended as per the restrictions and conditions envisaged therein. The statute having not given any indication for extension of time which is a condition for claiming Input Tax Credit, the submission that period could have been extended by assessing authority is unfounded and cannot be accepted. Issue number 5 is answered accordingly. | 1 | 11,114 | 1,169 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
the main object of the statute. The interpretation of the Rule 9(j) in the above case was on its own statutory scheme and has no bearing in the present case. We, thus, are of the view that time period as provided in Section 19(11) is mandatory. Issue no. 5 43. One of the submission advanced by learned counsel for the appellant was that appellant assessee had valid explanation for not claiming Input Tax Credit within the time provided under Section 19(11), hence, the authority had jurisdiction to extend the time. It is submitted that time period as contained in Section 19(11) is not akin to the law of limitation. We have already found that expression ?shall? occurring in Section 19(11) is mandatory whose compliance is necessary for claiming Input Tax Credit. The appellant has placed reliance on judgment of this Court reported in Surinder Singh versus Central Government and Others, 1986 (4) SCC 667. Learned Counsel submits that in the above case Central Government which was exercising authority under Displaced Persons (Compensation and Rehabilitation) Act, 1954 was held to be entitled to extend the time which was required for depositing the auction amount. In the above case, the officials of the Central Government were exercising Revisional Jurisdiction as conferred under Section 33 of the Act to the Central Government. Facts of the case were noticed in paragraph 9 to the following effect: - ?9. The second question relates to the validity of the order of Shri Rajni Kant the officer to whom power under Section 33 was delegated, extending time to enable the appellant to deposit the auction-sale money. Shri Rajni Kant by his order dated February 6, 1970 exercising the delegated powers of the Central Government under Section 33 of the Act set aside the order cancelling the auction- sale held in August 1959 and permitted the appellant to deposit the balance of the purchase money within fifteen days from the date of the order with a default clause that on his failure his petition would stand dismissed. In accordance with that order appellant was entitled to deposit the money till February 21, 1970. It appears that on appellant?s request the office prepared a challan which was valid up to February 20, 1970. The appellant went to the State Bank on February 20, 1970 to make the deposit but due to rush he could not make the deposit. On his application Shri Rajni Kant extended the time permitting the deposit by February 28, 1970 as a result of which a fresh challan was prepared which was valid up to February 28, 1970 and within that period appellant deposited the balance purchase money………? 44. Section 33 has been extracted in paragraph 10 of the judgment which is to the following effect: - ?10. Section 33 reads as under: ?Certain residuary powers of Central Government. —The Central Government may at any time call for the record of any proceeding under this Act and may pass such order in relation thereto as in its opinion the circumstances of the case require and as is not inconsistent with any of the provisions contained in this Act or the rules made thereunder.? 45. This Court in the above case held that the officer was exercising power of Central Government under Section 33 and had ample jurisdiction to set aside the Orders of the sub-ordinate authorities canceling the order and to permit the appellant to deposit the balance amount of the purchase money. Following observations while examining the power given under Section 33 had been made: ?11. The power conferred upon the Central Government under this provision is a residuary power in nature as the title of the section itself indicates. By enacting this section Parliament has conferred wide powers on the Central Government to call for the record of any case and to pass any order which it may think fit in the circumstances of the case. The only limitation on exercise of this power is that the Central Government shall not pass any order which may be inconsistent with any of the provisions of the Act and the rules made thereunder. Therefore, the Central Government or the delegated authority has power to set aside any order of the subordinate authorities, or to issue directions which it may consider necessary on the facts of a case subject to the aforesaid rider. This power is intended to be used to do justice and to mitigate hardship to a party unriddled by technicalities. Shri Rajni Kant while exercising powers of the Central Government under Section 33 of the Act had ample jurisdiction to set aside the orders of the subordinate authorities cancelling the auction held on August 24, 1959 and to permit the appellant to deposit the balance amount of the purchase money and he further had jurisdiction to extend the time initially granted by him. Extension of time to enable the appellant to deposit the money did not amount to review of the earlier order dated February 6, 1970 ? 46. The above case was thus on its own facts, this Court held that in exercise of residuary power of Central Government, it had jurisdiction to pass such order in relation thereto as in its opinion the circumstances in the case require. In the scheme of Tamil Nadu Value Added Tax Act, 2006, there is no power conferred on any authority under the Act to dilute the mandatory requirement under Section 19(11). The taxing statute has to be strictly construed. Nothing is to be read in, noting is to be implied and language used in taxing statute had to be looked into fairly. The benefits envisaged in the taxing statute had to be extended as per the restrictions and conditions envisaged therein. The statute having not given any indication for extension of time which is a condition for claiming Input Tax Credit, the submission that period could have been extended by assessing authority is unfounded and cannot be accepted. Issue number 5 is answered accordingly.
### Response:
1
### Explanation:
6 as noticed above. It is relevant to notice that in the same paragraph this Court had noticed Section 13(4)(g) of the Act where the State was empowered to make rule with regard to the time. Thus, this Court noticed the contradiction in phraseology of Section 8 sub-Section (4) and Section 13 sub-section (4) and held that non-mention of time in Section 8(4) is for clearly denying the rule making power to make any rule pertaining to the time. Thus, the above case has no bearing in the present controversy, since, in the present case the time period is prescribed in Section 19(11) itself which is a part of the Act and has to be read with Section 3 sub-section (3).The above case also does not come to help the appellant in the present appeal. In the above case there was no case that manufacturer does not fulfill any essential eligibility to obtain MODVAT credit on the additional duty paid by the manufacturer. The amendment which was made effective w.e.f. 15.04.2017 providing availability of MODVAT credit on additional duty paid was held to be clarificatory, hence, did not affect the right of MODVAT credit. The above case was thus on its own facts.The Constitutional validity of Section 19(20) was upheld. The above decision is a clear authority with proposition that Input Tax Credit is admissible only as per conditions enumerated under Section 19 of the Tamil Nadu Value Added Tax Act, 2016. The interpretation put up by this Court on Section 3(2) and 3(3) and Section 19(2) is fully attracted while considering the same provisions of Section 3(2) and 3(3) and provision of Section 19(11) of the Act. The Statutory scheme delineated by Section 19(11) neither can be said to be arbitrary nor can be said to violate the right guaranteed to the dealer under Article 19(1) (g) of the Constitution. We thus do not find any infirmity in the judgment of the High Court upholding the validity of Section 19(11) of the Act. Both the issues are answered accordingly.Issue Number 3 and 4The alternative submission pressed by learned Counsel for the appellant was that Section 19(11) cannot be held to be mandatory and it is only a directory provision, non-compliance of which cannot be ground of denial of Input Tax Credit to the appellant. The conditions under which Input Tax Credit is to be given are all enumerated in Section 19 as noticed above. The condition under which the concession and benefit is given is always to be strictly construed. In event, it is accepted that there is no time period for claiming Input Tax Credit as contained in Section 19(11), the provision become too flexible and give rise to large number of difficulties including difficulty in verification of claim of Input Credit. Taxing Statutes contains self-contained scheme of levy, computation and collection of tax. The time under which a return is to be filed for purpose of assessment of the tax cannot be dependent on the will of a dealer. The use of word ‘shall? in Section 19(11) does not admit to any other interpretation except that the submission of Input claimed cannot be beyond the time prescribed. Section 19(11), in fact, gives additional time period for claim of Input Credit. The Statutory scheme contemplates filing of the timely return before 20th of the succeeding month.Section 19(11) thus allowed an extended period for Input Credit which if not claimed in any month can be claimed before the end of the financial year or before the 90 days from the date of purchase whichever is later. The provision of Section 19(11) is thus an additional benefit given to dealer for claiming Input Credit in extended period. The use of word ?shall make the claim? needs no other interpretation.This Court in the above case clearly laid down that whether particular provision is mandatory or directory has to be determined on the basis of object of particular provision and design of the statute. The period of 10 days in submitting the report of the public analyst was held to be directory for the reason that on the negligence of those to whom public duties are entrusted no one should suffer. Such interpretation should not be put which may promote the public mischief and cause public inconvenience and defeat the main object of the statute. The interpretation of the Rule 9(j) in the above case was on its own statutory scheme and has no bearing in the present case. We, thus, are of the view that time period as provided in Section 19(11) is mandatory.Issue no. 5the above case, the officials of the Central Government were exercising Revisional Jurisdiction as conferred under Section 33 of the Act to the Central Government.This Court in the above case held that the officer was exercising power of Central Government under Section 33 and had ample jurisdiction to set aside the Orders of the sub-ordinate authorities canceling the order and to permit the appellant to deposit the balance amount of the purchase money.The above case was thus on its own facts, this Court held that in exercise of residuary power of Central Government, it had jurisdiction to pass such order in relation thereto as in its opinion the circumstances in the case require. In the scheme of Tamil Nadu Value Added Tax Act, 2006, there is no power conferred on any authority under the Act to dilute the mandatory requirement under Section 19(11). The taxing statute has to be strictly construed. Nothing is to be read in, noting is to be implied and language used in taxing statute had to be looked into fairly. The benefits envisaged in the taxing statute had to be extended as per the restrictions and conditions envisaged therein. The statute having not given any indication for extension of time which is a condition for claiming Input Tax Credit, the submission that period could have been extended by assessing authority is unfounded and cannot be accepted. Issue number 5 is answered accordingly.
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Commissioner Of Income-Tax, Calcutta Vs. M/S. Moon Mills Ltd | actually paid or incurred according to the method of accounting upon the basis of which the profits or gains are computed under this section. If the concepts of mercantile system of accountancy were incorporated by implication in the various clauses of S. 10 (2), the definition of paid in Section 10 (5) would be redundant. We cannot attribute redundancy to the Legislature unless for compelling reasons. On the other hand, the definition of the expression paid is a clear indication that in the case of the other terms the Legislature intended to give those expressions their natural meanings. 11. The distinction between the scope of commercial accountancy for the purpose of ascertaining the trading profits and that of the statutory allowances is brought out by this Court in Commissioner of Income-tax, Bombay City v. Bipinchandra Maganlal and Co. Ltd., 1961-41 LTR 290: (AIR 1961 SC 1040 ). Shah, J., speaking for the Court, made the following observations: There is no definable relation between the assessable income and the profits of a business concern in a commercial sense. Computation of income for purposes of assessment of income-tax is based on a variety of artificial rules and takes into account several fictional receipts, deductions and allowances. If the contention advanced on behalf of the Revenue is accepted, this distinction is effaced. The decision of the House of Lords in Green (H. M. Inspector of Taxes) v. J. Gliksten and Son, Ltd., (1929) 14 Tax Cas 364 at p. 384, which is relied upon by the learned counsel for the Revenue, does not support his contention. There, the Companys timber, its stock-in-trade, was destroyed by fire. It received from the insurers a large sum of money as compensation towards the said loans. A part of the said amount was not entered in the profit and loss account but was shown as a reserve in the balance sheet. The House of Lords held that the whole sum recovered was a trading receipt to be taken into account in computing the profits assessable to income-tax under Case 1 of Schedule D and to Corporation Profits Tax. In the context of those facts, Lord Buckmaster observed: What has happened has been this, that the timber which the Appellants held has been converted into cash. It is quite true it has been converted into cash through the operation of the fire, which is no part of their trade, but loss due to it is protected through the usual trade insurance, and the timber has thus been realised. It is now represented by money, whereas formerly it was represented by wood. If this results in a gain, as it has done, it appears to me to be an ordinary gain-a gain which has taken place in the course of their trade . . . . Viscount Dunedin puts the same idea in different words thus: The whole point is that the business of the Company is to buy timber and to sell timber, and when they sell timber they turn it into money. This particular timber was turned into money, not because it was sold, but because it was burned and they had an insurance policy over it. The whole question comes to be whether that is a turnover in the ordinary course of their business. I think it was . . . . . . . . the result of this fire was that they got rid of so much timber and got the insurance money at that figure, and that seems to me precisely in the same position as if they got rid of it by giving it to a customer. Lord Warrington of Clyffe stated much to the same effect, though he emphasized the commercial method. He said: . . . . . the normal commercial method of dealing with moneys recovered by a trader under a policy of insurance, in respect of stock destroyed by fire, was to include the actual amount received in the accounts as an ordinary trading receipt in the same way as the proceeds of an ordinary sale of stock. These observations were made in the context of destruction by fire of stock-in-trade. The House of Lords unanimously held that the compensation received was only a trading receipt, for it represented the timber which was part of the stock-in-trade lost by fire. Far from helping the Revenue, this decision brings out with clarity the distinction between loss by fire of stock-in-trade and of a capital asset. The compensation received from an insurance company towards the loss of capital asset does not represent profit in a commercial sense: it was made a profit by fiction under the Act. 12. The legal position may be stated thus: The profit and loss of a business concern is ascertained on commercial principles Section 13 of the Act, subject to the proviso, imposes a duty on the Revenue to compute the profits of a business in accordance with the methods of accounting adopted by an assessee under the said principles. But the concept of assessable income under the Act is different from profit and loss in a commercial sense. Though profit and loss ascertained under the system adopted by an assessee is the basis, the assessable income is arrived at by adopting rules, some artificial, incorporated in S. 10 (2) of the Act. Prima facie, the allowances, deductions and deemed profits shall be ascertained in terms of the statutory provisions, unless the statute itself accepts the principles of commercial accountancy in a particular case. 13. In the present case, the compensation to the extent mentioned in the proviso received only in the accounting year was by fiction treated as profit. There is, therefore, no scope for holding that the expression received means receivable. 14. For the aforesaid reasons, we hold that, as the compensation for the loss of machinery and buildings by fire was not actually received by the Company during the accounting year, the said amount could not be assessed during the assessment year. | 0[ds]12. The legal position may be stated thus: The profit and loss of a business concern is ascertained on commercial principles Section 13 of the Act, subject to the proviso, imposes a duty on the Revenue to compute the profits of a business in accordance with the methods of accounting adopted by an assessee under the said principles. But the concept of assessable income under the Act is different from profit and loss in a commercial sense. Though profit and loss ascertained under the system adopted by an assessee is the basis, the assessable income is arrived at by adopting rules, some artificial, incorporated in S. 10 (2) of the Act. Prima facie, the allowances, deductions and deemed profits shall be ascertained in terms of the statutory provisions, unless the statute itself accepts the principles of commercial accountancy in a particular case13. In the present case, the compensation to the extent mentioned in the proviso received only in the accounting year was by fiction treated as profit. There is, therefore, no scope for holding that the expression received means receivable14. For the aforesaid reasons, we hold that, as the compensation for the loss of machinery and buildings by fire was not actually received by the Company during the accounting year, the said amount could not be assessed during the assessment year. | 0 | 3,557 | 250 | ### 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:
actually paid or incurred according to the method of accounting upon the basis of which the profits or gains are computed under this section. If the concepts of mercantile system of accountancy were incorporated by implication in the various clauses of S. 10 (2), the definition of paid in Section 10 (5) would be redundant. We cannot attribute redundancy to the Legislature unless for compelling reasons. On the other hand, the definition of the expression paid is a clear indication that in the case of the other terms the Legislature intended to give those expressions their natural meanings. 11. The distinction between the scope of commercial accountancy for the purpose of ascertaining the trading profits and that of the statutory allowances is brought out by this Court in Commissioner of Income-tax, Bombay City v. Bipinchandra Maganlal and Co. Ltd., 1961-41 LTR 290: (AIR 1961 SC 1040 ). Shah, J., speaking for the Court, made the following observations: There is no definable relation between the assessable income and the profits of a business concern in a commercial sense. Computation of income for purposes of assessment of income-tax is based on a variety of artificial rules and takes into account several fictional receipts, deductions and allowances. If the contention advanced on behalf of the Revenue is accepted, this distinction is effaced. The decision of the House of Lords in Green (H. M. Inspector of Taxes) v. J. Gliksten and Son, Ltd., (1929) 14 Tax Cas 364 at p. 384, which is relied upon by the learned counsel for the Revenue, does not support his contention. There, the Companys timber, its stock-in-trade, was destroyed by fire. It received from the insurers a large sum of money as compensation towards the said loans. A part of the said amount was not entered in the profit and loss account but was shown as a reserve in the balance sheet. The House of Lords held that the whole sum recovered was a trading receipt to be taken into account in computing the profits assessable to income-tax under Case 1 of Schedule D and to Corporation Profits Tax. In the context of those facts, Lord Buckmaster observed: What has happened has been this, that the timber which the Appellants held has been converted into cash. It is quite true it has been converted into cash through the operation of the fire, which is no part of their trade, but loss due to it is protected through the usual trade insurance, and the timber has thus been realised. It is now represented by money, whereas formerly it was represented by wood. If this results in a gain, as it has done, it appears to me to be an ordinary gain-a gain which has taken place in the course of their trade . . . . Viscount Dunedin puts the same idea in different words thus: The whole point is that the business of the Company is to buy timber and to sell timber, and when they sell timber they turn it into money. This particular timber was turned into money, not because it was sold, but because it was burned and they had an insurance policy over it. The whole question comes to be whether that is a turnover in the ordinary course of their business. I think it was . . . . . . . . the result of this fire was that they got rid of so much timber and got the insurance money at that figure, and that seems to me precisely in the same position as if they got rid of it by giving it to a customer. Lord Warrington of Clyffe stated much to the same effect, though he emphasized the commercial method. He said: . . . . . the normal commercial method of dealing with moneys recovered by a trader under a policy of insurance, in respect of stock destroyed by fire, was to include the actual amount received in the accounts as an ordinary trading receipt in the same way as the proceeds of an ordinary sale of stock. These observations were made in the context of destruction by fire of stock-in-trade. The House of Lords unanimously held that the compensation received was only a trading receipt, for it represented the timber which was part of the stock-in-trade lost by fire. Far from helping the Revenue, this decision brings out with clarity the distinction between loss by fire of stock-in-trade and of a capital asset. The compensation received from an insurance company towards the loss of capital asset does not represent profit in a commercial sense: it was made a profit by fiction under the Act. 12. The legal position may be stated thus: The profit and loss of a business concern is ascertained on commercial principles Section 13 of the Act, subject to the proviso, imposes a duty on the Revenue to compute the profits of a business in accordance with the methods of accounting adopted by an assessee under the said principles. But the concept of assessable income under the Act is different from profit and loss in a commercial sense. Though profit and loss ascertained under the system adopted by an assessee is the basis, the assessable income is arrived at by adopting rules, some artificial, incorporated in S. 10 (2) of the Act. Prima facie, the allowances, deductions and deemed profits shall be ascertained in terms of the statutory provisions, unless the statute itself accepts the principles of commercial accountancy in a particular case. 13. In the present case, the compensation to the extent mentioned in the proviso received only in the accounting year was by fiction treated as profit. There is, therefore, no scope for holding that the expression received means receivable. 14. For the aforesaid reasons, we hold that, as the compensation for the loss of machinery and buildings by fire was not actually received by the Company during the accounting year, the said amount could not be assessed during the assessment year.
### Response:
0
### Explanation:
12. The legal position may be stated thus: The profit and loss of a business concern is ascertained on commercial principles Section 13 of the Act, subject to the proviso, imposes a duty on the Revenue to compute the profits of a business in accordance with the methods of accounting adopted by an assessee under the said principles. But the concept of assessable income under the Act is different from profit and loss in a commercial sense. Though profit and loss ascertained under the system adopted by an assessee is the basis, the assessable income is arrived at by adopting rules, some artificial, incorporated in S. 10 (2) of the Act. Prima facie, the allowances, deductions and deemed profits shall be ascertained in terms of the statutory provisions, unless the statute itself accepts the principles of commercial accountancy in a particular case13. In the present case, the compensation to the extent mentioned in the proviso received only in the accounting year was by fiction treated as profit. There is, therefore, no scope for holding that the expression received means receivable14. For the aforesaid reasons, we hold that, as the compensation for the loss of machinery and buildings by fire was not actually received by the Company during the accounting year, the said amount could not be assessed during the assessment year.
|
Commissioner Of Income-Tax,Bombay City I, Bombay Vs. Afco (P) Ltd., Bombay | benefit of rebate is not admissible in their favour. The Tribunal and the High Court held that the expression "cannot be made applicable" only refers to a state of affairs in which having regard to the circumstances an order under s. 23k of the Indian Income-tax Act cannot be made. In our judgment the Income-tax Appellate Tribunal and the High Court were right in so holding. The Legislature has used the expression "cannot be made applicable" which clearly means that the applicability of s. 23A depends upon an order to be made by the Income-tax Officer, and not upon any exclusion by the provisions of the Act. Before an order can be made under s. 23A of the Income-tax Act, the Income- tax Officer has to ascertain (i) whether the company conforms to the description in sub-s. (9) of s. 23A; if it does the lncome-tax Officer has no power to make an order ; and (ii) if the company is not one which falls within cl. (9) of s. 23A whether having regard to inadequacy of the declaration of dividend, an order for payment of super-tax should not, because of the losses incurred by the company in the earlier years, or to the smallness of the profits in the previous year, be made. Satisfaction of the Income-tax Officer as to the existence of several conditions prescribed thereby- even if the company is one which does not fall within sub-s. (9) of s. 23A is a condition of the making of the order. The language used by the Legislature clearly indicates that it is only when an order under s. 23A will not, having regard to the circumstances be justified that the right to obtain rebate under the Finance Act 15 of 1955 is claimable. The Legislature has not enacted that the benefit of rebate is admissible only to companies against which the order under sub-s. (1) of s. 23A can never be made. The Legislative history as disclosed by the earlier Finance Acts supports this interpretation of the relevant provision. In the Finance Acts prior to 1955 rebate under Part I of the 1st Schedule Item B was admissible if the company had in respect of profits liable to tax under the Indian Income-tax Act made the prescribed arrangements for declaration and payment of dividends payable out of the profits and had deducted super-tax from the dividends in accordance with s. 18(3D) & (3E), where the total income reduced by seven annas in the rupee and the amount exempt from income-tax exceeded the amount of any dividends declared and no order had been made under sub-s. (1) of s. 23A of the Income-tax Act. The right to rebate arose under those Finance Acts if no order under s. 23A was made. The Income-tax Officer had therefore to decide even before completing the assessment of the company whether the circumstances justified the making of an order under S. 23A, and unless an order under s. 23A was made the assessee became entitled automatically to the rebate of one anna in the rupee. Such a provision led to delay in the disposal of assessment proceedings and caused administrative inconvenience. It appears that the Legislature modified the scheme of granting rebate in enacting the Finance Act of 1955 with a view to simplify the procedure and avoid delays, and not with the object of depriving the private limited companies as a class, of the benefit of rebate which was permissible under the earlier Acts.Counsel for the Income-tax Commissioner invited our attention to the Finance Acts of 1956 and 1957 contended that the Legislature in dealing with the right to rebate under Part II relating to the rates of super-tax used phraseology which restricted the right of rebate only to public companies. Ie must be noticed that even under the Finance Act of 1955 by Part II of Schedule 1, item D, a rebate of three annas per rupee of the total income was to bf allowed to companies in respect of profits liable to tax under the Income-tax Act for the year ending March 31, 1956, if the company had made prescribed arrangements for payment of dividend payable out of profits and for reduction of super-tax from dividends in accordance with the provisions of sub-s. 3D of s. 18 of the Act and the company was a public company with a total income not exceeding Rs. 25, 000/-. This provision was slightly modified in the Finance Act of 1956 where the rebate admissible was at the rate of five annas in the rupee, (other condition being fulfilled) if the company was a public company with total income not exceeding Rs. 25, 000/to which the provisions of s. 23A could not be made applicable. Under the Finance Act of 1957 rebate was admissible in favour of companies "referred to in sub-s. (9) of s. 23A of the income-tax Act with total income not exceeding Rs. 25, 000/-." All these provisions about rebate were enacted in prescribing the rates of super-tax. In the Finance Act of 1955 the Legislature in dealing with the right of rebate under Part I prescribing rates of income-tax, made it admissible in respect of companies to which provisions of s. 23A of the Income-tax Act could not be made applicable, whereas under Part II prescribing rates of super-tax, rebate was made admissible in respect of public companies having income not exceeding the prescribed amount and rebate at a lower rate where the income exceeded the prescribed limit. If it was intended by the Legislature to exclude private limited companies from the benefit of rebate the Legislature would have adopted the same phraseology as was used in that Act in dealing with the rebates in prescribing rates of super-tax. The legislative history instead of supporting the case of the Income-tax Department yields inference against their interpretation.We are therefore of the view that the High Court was right in holding that the company was entitled to the rebate claimed by it. | 0[ds]It is manifest that the order under s. 23A(1) would (excluding certain procedural conditions) be ordinarily made if the company has distributed by way of dividend within the twelve months immediately following the expiry of the accounting year less than the prescribed percentage of the total income as reduced by the, amount of taxes paid in the case of non- Banking Companies and reserve fund in addition thereto in the case of Bankingour judgment the Income-tax Appellate Tribunal and the High Court were right in so holding. The Legislature has used the expression "cannot be made applicable" which clearly means that the applicability of s. 23A depends upon an order to be made by the Income-tax Officer, and not upon any exclusion by the provisions of the Act. Before an order can be made under s. 23A of the Income-tax Act, the Income- tax Officer has to ascertain (i) whether the company conforms to the description in sub-s. (9) of s. 23A; if it does the lncome-tax Officer has no power to make an order ; and (ii) if the company is not one which falls within cl. (9) of s. 23A whether having regard to inadequacy of the declaration of dividend, an order for payment of super-tax should not, because of the losses incurred by the company in the earlier years, or to the smallness of the profits in the previous year, be made. Satisfaction of the Income-tax Officer as to the existence of several conditions prescribed thereby- even if the company is one which does not fall within sub-s. (9) of s. 23A is a condition of the making of the order. The language used by the Legislature clearly indicates that it is only when an order under s. 23A will not, having regard to the circumstances be justified that the right to obtain rebate under the Finance Act 15 of 1955 is claimable. The Legislature has not enacted that the benefit of rebate is admissible only to companies against which the order under sub-s. (1) of s. 23A can never be made. The Legislative history as disclosed by the earlier Finance Acts supports this interpretation of the relevant provision. In the Finance Acts prior to 1955 rebate under Part I of the 1st Schedule Item B was admissible if the company had in respect of profits liable to tax under the Indian Income-tax Act made the prescribed arrangements for declaration and payment of dividends payable out of the profits and had deducted super-tax from the dividends in accordance with s. 18(3D) & (3E), where the total income reduced by seven annas in the rupee and the amount exempt from income-tax exceeded the amount of any dividends declared and no order had been made under sub-s. (1) of s. 23A of the Income-tax Act. The right to rebate arose under those Finance Acts if no order under s. 23A was made. The Income-tax Officer had therefore to decide even before completing the assessment of the company whether the circumstances justified the making of an order under S. 23A, and unless an order under s. 23A was made the assessee became entitled automatically to the rebate of one anna in the rupee. Such a provision led to delay in the disposal of assessment proceedings and caused administrative inconvenience. It appears that the Legislature modified the scheme of granting rebate in enacting the Finance Act of 1955 with a view to simplify the procedure and avoid delays, and not with the object of depriving the private limited companies as a class, of the benefit of rebate which was permissible under the earlier Acts.Counsel for the Income-tax Commissioner invited our attention to the Finance Acts of 1956 and 1957 contended that the Legislature in dealing with the right to rebate under Part II relating to the rates of super-tax used phraseology which restricted the right of rebate only to public companies. Ie must be noticed that even under the Finance Act of 1955 by Part II of Schedule 1, item D, a rebate of three annas per rupee of the total income was to bf allowed to companies in respect of profits liable to tax under the Income-tax Act for the year ending March 31, 1956, if the company had made prescribed arrangements for payment of dividend payable out of profits and for reduction of super-tax from dividends in accordance with the provisions of sub-s. 3D of s. 18 of the Act and the company was a public company with a total income not exceeding Rs. 25, 000/-. This provision was slightly modified in the Finance Act of 1956 where the rebate admissible was at the rate of five annas in the rupee, (other condition being fulfilled) if the company was a public company with total income not exceeding Rs. 25, 000/to which the provisions of s. 23A could not be made applicable. Under the Finance Act of 1957 rebate was admissible in favour of companies "referred to in sub-s. (9) of s. 23A of the income-tax Act with total income not exceeding Rs. 25, 000/-." All these provisions about rebate were enacted in prescribing the rates of super-tax. In the Finance Act of 1955 the Legislature in dealing with the right of rebate under Part I prescribing rates of income-tax, made it admissible in respect of companies to which provisions of s. 23A of the Income-tax Act could not be made applicable, whereas under Part II prescribing rates of super-tax, rebate was made admissible in respect of public companies having income not exceeding the prescribed amount and rebate at a lower rate where the income exceeded the prescribed limit. If it was intended by the Legislature to exclude private limited companies from the benefit of rebate the Legislature would have adopted the same phraseology as was used in that Act in dealing with the rebates in prescribing rates of super-tax. The legislative history instead of supporting the case of the Income-tax Department yields inference against their interpretation.We are therefore of the view that the High Court was right in holding that the company was entitled to the rebate claimed by it. | 0 | 2,779 | 1,105 | ### 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:
benefit of rebate is not admissible in their favour. The Tribunal and the High Court held that the expression "cannot be made applicable" only refers to a state of affairs in which having regard to the circumstances an order under s. 23k of the Indian Income-tax Act cannot be made. In our judgment the Income-tax Appellate Tribunal and the High Court were right in so holding. The Legislature has used the expression "cannot be made applicable" which clearly means that the applicability of s. 23A depends upon an order to be made by the Income-tax Officer, and not upon any exclusion by the provisions of the Act. Before an order can be made under s. 23A of the Income-tax Act, the Income- tax Officer has to ascertain (i) whether the company conforms to the description in sub-s. (9) of s. 23A; if it does the lncome-tax Officer has no power to make an order ; and (ii) if the company is not one which falls within cl. (9) of s. 23A whether having regard to inadequacy of the declaration of dividend, an order for payment of super-tax should not, because of the losses incurred by the company in the earlier years, or to the smallness of the profits in the previous year, be made. Satisfaction of the Income-tax Officer as to the existence of several conditions prescribed thereby- even if the company is one which does not fall within sub-s. (9) of s. 23A is a condition of the making of the order. The language used by the Legislature clearly indicates that it is only when an order under s. 23A will not, having regard to the circumstances be justified that the right to obtain rebate under the Finance Act 15 of 1955 is claimable. The Legislature has not enacted that the benefit of rebate is admissible only to companies against which the order under sub-s. (1) of s. 23A can never be made. The Legislative history as disclosed by the earlier Finance Acts supports this interpretation of the relevant provision. In the Finance Acts prior to 1955 rebate under Part I of the 1st Schedule Item B was admissible if the company had in respect of profits liable to tax under the Indian Income-tax Act made the prescribed arrangements for declaration and payment of dividends payable out of the profits and had deducted super-tax from the dividends in accordance with s. 18(3D) & (3E), where the total income reduced by seven annas in the rupee and the amount exempt from income-tax exceeded the amount of any dividends declared and no order had been made under sub-s. (1) of s. 23A of the Income-tax Act. The right to rebate arose under those Finance Acts if no order under s. 23A was made. The Income-tax Officer had therefore to decide even before completing the assessment of the company whether the circumstances justified the making of an order under S. 23A, and unless an order under s. 23A was made the assessee became entitled automatically to the rebate of one anna in the rupee. Such a provision led to delay in the disposal of assessment proceedings and caused administrative inconvenience. It appears that the Legislature modified the scheme of granting rebate in enacting the Finance Act of 1955 with a view to simplify the procedure and avoid delays, and not with the object of depriving the private limited companies as a class, of the benefit of rebate which was permissible under the earlier Acts.Counsel for the Income-tax Commissioner invited our attention to the Finance Acts of 1956 and 1957 contended that the Legislature in dealing with the right to rebate under Part II relating to the rates of super-tax used phraseology which restricted the right of rebate only to public companies. Ie must be noticed that even under the Finance Act of 1955 by Part II of Schedule 1, item D, a rebate of three annas per rupee of the total income was to bf allowed to companies in respect of profits liable to tax under the Income-tax Act for the year ending March 31, 1956, if the company had made prescribed arrangements for payment of dividend payable out of profits and for reduction of super-tax from dividends in accordance with the provisions of sub-s. 3D of s. 18 of the Act and the company was a public company with a total income not exceeding Rs. 25, 000/-. This provision was slightly modified in the Finance Act of 1956 where the rebate admissible was at the rate of five annas in the rupee, (other condition being fulfilled) if the company was a public company with total income not exceeding Rs. 25, 000/to which the provisions of s. 23A could not be made applicable. Under the Finance Act of 1957 rebate was admissible in favour of companies "referred to in sub-s. (9) of s. 23A of the income-tax Act with total income not exceeding Rs. 25, 000/-." All these provisions about rebate were enacted in prescribing the rates of super-tax. In the Finance Act of 1955 the Legislature in dealing with the right of rebate under Part I prescribing rates of income-tax, made it admissible in respect of companies to which provisions of s. 23A of the Income-tax Act could not be made applicable, whereas under Part II prescribing rates of super-tax, rebate was made admissible in respect of public companies having income not exceeding the prescribed amount and rebate at a lower rate where the income exceeded the prescribed limit. If it was intended by the Legislature to exclude private limited companies from the benefit of rebate the Legislature would have adopted the same phraseology as was used in that Act in dealing with the rebates in prescribing rates of super-tax. The legislative history instead of supporting the case of the Income-tax Department yields inference against their interpretation.We are therefore of the view that the High Court was right in holding that the company was entitled to the rebate claimed by it.
### Response:
0
### Explanation:
by way of dividend within the twelve months immediately following the expiry of the accounting year less than the prescribed percentage of the total income as reduced by the, amount of taxes paid in the case of non- Banking Companies and reserve fund in addition thereto in the case of Bankingour judgment the Income-tax Appellate Tribunal and the High Court were right in so holding. The Legislature has used the expression "cannot be made applicable" which clearly means that the applicability of s. 23A depends upon an order to be made by the Income-tax Officer, and not upon any exclusion by the provisions of the Act. Before an order can be made under s. 23A of the Income-tax Act, the Income- tax Officer has to ascertain (i) whether the company conforms to the description in sub-s. (9) of s. 23A; if it does the lncome-tax Officer has no power to make an order ; and (ii) if the company is not one which falls within cl. (9) of s. 23A whether having regard to inadequacy of the declaration of dividend, an order for payment of super-tax should not, because of the losses incurred by the company in the earlier years, or to the smallness of the profits in the previous year, be made. Satisfaction of the Income-tax Officer as to the existence of several conditions prescribed thereby- even if the company is one which does not fall within sub-s. (9) of s. 23A is a condition of the making of the order. The language used by the Legislature clearly indicates that it is only when an order under s. 23A will not, having regard to the circumstances be justified that the right to obtain rebate under the Finance Act 15 of 1955 is claimable. The Legislature has not enacted that the benefit of rebate is admissible only to companies against which the order under sub-s. (1) of s. 23A can never be made. The Legislative history as disclosed by the earlier Finance Acts supports this interpretation of the relevant provision. In the Finance Acts prior to 1955 rebate under Part I of the 1st Schedule Item B was admissible if the company had in respect of profits liable to tax under the Indian Income-tax Act made the prescribed arrangements for declaration and payment of dividends payable out of the profits and had deducted super-tax from the dividends in accordance with s. 18(3D) & (3E), where the total income reduced by seven annas in the rupee and the amount exempt from income-tax exceeded the amount of any dividends declared and no order had been made under sub-s. (1) of s. 23A of the Income-tax Act. The right to rebate arose under those Finance Acts if no order under s. 23A was made. The Income-tax Officer had therefore to decide even before completing the assessment of the company whether the circumstances justified the making of an order under S. 23A, and unless an order under s. 23A was made the assessee became entitled automatically to the rebate of one anna in the rupee. Such a provision led to delay in the disposal of assessment proceedings and caused administrative inconvenience. It appears that the Legislature modified the scheme of granting rebate in enacting the Finance Act of 1955 with a view to simplify the procedure and avoid delays, and not with the object of depriving the private limited companies as a class, of the benefit of rebate which was permissible under the earlier Acts.Counsel for the Income-tax Commissioner invited our attention to the Finance Acts of 1956 and 1957 contended that the Legislature in dealing with the right to rebate under Part II relating to the rates of super-tax used phraseology which restricted the right of rebate only to public companies. Ie must be noticed that even under the Finance Act of 1955 by Part II of Schedule 1, item D, a rebate of three annas per rupee of the total income was to bf allowed to companies in respect of profits liable to tax under the Income-tax Act for the year ending March 31, 1956, if the company had made prescribed arrangements for payment of dividend payable out of profits and for reduction of super-tax from dividends in accordance with the provisions of sub-s. 3D of s. 18 of the Act and the company was a public company with a total income not exceeding Rs. 25, 000/-. This provision was slightly modified in the Finance Act of 1956 where the rebate admissible was at the rate of five annas in the rupee, (other condition being fulfilled) if the company was a public company with total income not exceeding Rs. 25, 000/to which the provisions of s. 23A could not be made applicable. Under the Finance Act of 1957 rebate was admissible in favour of companies "referred to in sub-s. (9) of s. 23A of the income-tax Act with total income not exceeding Rs. 25, 000/-." All these provisions about rebate were enacted in prescribing the rates of super-tax. In the Finance Act of 1955 the Legislature in dealing with the right of rebate under Part I prescribing rates of income-tax, made it admissible in respect of companies to which provisions of s. 23A of the Income-tax Act could not be made applicable, whereas under Part II prescribing rates of super-tax, rebate was made admissible in respect of public companies having income not exceeding the prescribed amount and rebate at a lower rate where the income exceeded the prescribed limit. If it was intended by the Legislature to exclude private limited companies from the benefit of rebate the Legislature would have adopted the same phraseology as was used in that Act in dealing with the rebates in prescribing rates of super-tax. The legislative history instead of supporting the case of the Income-tax Department yields inference against their interpretation.We are therefore of the view that the High Court was right in holding that the company was entitled to the rebate claimed by it.
|
Parimal Sarkar Vs. State of West Bengal | 1971 and thirdly the police were actuated by a improper motive because six or seven years prior to his detention he had made a complaint that the final report given by the Police Officer in respect of the first information given by him in connection with an incident at Sealdah, the accused was punished and departmental action was taken against the investigating Police Officer. In view of this grudge the police have often threatened the petitioner and tried to harass him in various ways which culminated in this false allegation made against him.4. Whether the act committed by the petitioner on the sole ground communicated to him would amount to a disturbance of public order or is likely to disturb public order has been considered in several decisions of this Court one of which was pronounced only yesterday, in S. K. Kader v. State of West Bengal, to which both of us were parties. In that case also the grounds were similar to the ground on which the petitioner has been detained. In fact the second ground in that case is almost identical. It was there observed by Mathew, J. :"The question whether a person has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order is one of degree and the extent of the reach of the act upon the society. An act by itself is not determinative of its own gravity. In its quality it may not differ from another but in its potentiality it may be very different. Similar acts in different contexts affect differently law and order on the one hand and public order on the other. It is always a question of degree of the harm and its effect upon the community. Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. It is the degree of disturbance and its effect upon the life of the community in a locality which determines whether the disturbance amounts only to a breach of the law and order. In the final analysis, one must always return to the facts of the case to see whether the acts perpetrated are of such a nature or of such potentiality as to travel beyond the immediate victims and affect the general or local public. A case by case adjudication gives the judicial process the impact of actuality and thereby saves it from the hazards of generalisation."5. By the application of the principles set out above, we held that the acts alleged against the detenu in the grounds served on him had the potentiality of affecting the even tempo of the life of the community in the locality by their reverberations and were sufficient to sustain the order of detention on the ground that the acts of the petitioner would disturb or would be likely to disturb the maintenance of public order.6. The ground in this case as we said earlier being similar, we must hold likewise that the acts alleged to have been committed by the petitioner are prejudicial to the maintenance of public order. Similar grounds have been considered in the other cases of this Court where it has been held that they disclose that the act or acts alleged against the detenu would disturb or would be likely to disturb public order : (See Nandlal Roy alias Nanda Dulal Rao alias Pagla v. State of West Bengal. Netaipada Shah v. The State of Bengal and Jagannath v. State of West Bengal.7. The second and third grounds are those set out in the latter of the petitioner from jail to this Court, dated March 14/16, 1972, long after the Advisory Board had met. Even so on a perusal of that letter and the second representation, it will appear that the petitioner had made similar allegations in the said second representation, which was considered by the Advisory Board after giving him a personal hearing. In that petition also he has stated that on June 15, 1971, he went to his father-in-laws house at Bhadreshwar in Hooghly. After going there he fell ill and was under medical treatment from June 16, 1971, till June 22, 1971. In view of the illness he had even lost the power to walk. He also stated therein the circumstances in which he had incurred the wrath of the police for making a complaint against them because they had sent a final report : as a result of that complaint the accused was prosecuted, convicted and sentenced and the Sub-Inspector who was investigating was also departmentally punished. Ever since, the police has been angry with him, had threatened him in various ways and was harassing him. While he stated in the letter of March 14/16, 1972 that he was arrested on July 16, 1971, by the C. R. P. which if true makes the statement in the counter-affidavit that he was arrested on July 21, 1971, to be false, he did not complain about it in any of his representations to the State Government. As these were went to the Advisory Board, it would have enquired into it. No doubt, the allegation that he had attracted the ill-will of the police as well as the fact of his illness were stated in those representations and the Board must have gone into it because it appears from the affidavit filed by the Assistant Secretary of the Home Department of West Bengal that the question of his illness at the relevant time and the medical certificate was considered by the State Government and also by the Board. What this Court has to be satisfied with is that the mandatory provisions of the Act have been complained of prejudicial to the maintenance of public order and the detenu has been given an opportunity to make his representation to the Advisory Board which after full consideration has formed an opinion that the detention is justified. | 0[ds]4. Whether the act committed by the petitioner on the sole ground communicated to him would amount to a disturbance of public order or is likely to disturb public order has been considered in several decisions of this Court one of which was pronounced only yesterday, in S. K. Kader v. State of West Bengal, to which both of us were parties. In that case also the grounds were similar to the ground on which the petitioner has been detained. In fact the second ground in that case is almost identical. It was there observed by Mathew, J. :"The question whether a person has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order is one of degree and the extent of the reach of the act upon the society. An act by itself is not determinative of its own gravity. In its quality it may not differ from another but in its potentiality it may be very different. Similar acts in different contexts affect differently law and order on the one hand and public order on the other. It is always a question of degree of the harm and its effect upon the community. Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. It is the degree of disturbance and its effect upon the life of the community in a locality which determines whether the disturbance amounts only to a breach of the law and order. In the final analysis, one must always return to the facts of the case to see whether the acts perpetrated are of such a nature or of such potentiality as to travel beyond the immediate victims and affect the general or local public. A case by case adjudication gives the judicial process the impact of actuality and thereby saves it from the hazards of generalisation."5. By the application of the principles set out above, we held that the acts alleged against the detenu in the grounds served on him had the potentiality of affecting the even tempo of the life of the community in the locality by their reverberations and were sufficient to sustain the order of detention on the ground that the acts of the petitioner would disturb or would be likely to disturb the maintenance of public order.6. The ground in this case as we said earlier being similar, we must hold likewise that the acts alleged to have been committed by the petitioner are prejudicial to the maintenance of public order. Similar grounds have been considered in the other cases of this Court where it has been held that they disclose that the act or acts alleged against the detenu would disturb or would be likely to disturb public order : (See Nandlal Roy alias Nanda Dulal Rao alias Pagla v. State of West Bengal. Netaipada Shah v. The State of Bengal and Jagannath v. State of West Bengal.7. The second and third grounds are those set out in the latter of the petitioner from jail to this Court, dated March 14/16, 1972, long after the Advisory Board had met. Even so on a perusal of that letter and the second representation, it will appear that the petitioner had made similar allegations in the said second representation, which was considered by the Advisory Board after giving him a personal hearing. In that petition also he has stated that on June 15, 1971, he went to hishouse at Bhadreshwar in Hooghly. After going there he fell ill and was under medical treatment from June 16, 1971, till June 22, 1971. In view of the illness he had even lost the power to walk. He also stated therein the circumstances in which he had incurred the wrath of the police for making a complaint against them because they had sent a final report : as a result of that complaint the accused was prosecuted, convicted and sentenced and thewho was investigating was also departmentally punished. Ever since, the police has been angry with him, had threatened him in various ways and was harassing him. While he stated in the letter of March 14/16, 1972 that he was arrested on July 16, 1971, by the C. R. P. which if true makes the statement in thethat he was arrested on July 21, 1971, to be false, he did not complain about it in any of his representations to the State Government. As these were went to the Advisory Board, it would have enquired into it. No doubt, the allegation that he had attracted theof the police as well as the fact of his illness were stated in those representations and the Board must have gone into it because it appears from the affidavit filed by the Assistant Secretary of the Home Department of West Bengal that the question of his illness at the relevant time and the medical certificate was considered by the State Government and also by the Board. What this Court has to be satisfied with is that the mandatory provisions of the Act have been complained of prejudicial to the maintenance of public order and the detenu has been given an opportunity to make his representation to the Advisory Board which after full consideration has formed an opinion that the detention is justified. | 0 | 1,914 | 964 | ### 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:
1971 and thirdly the police were actuated by a improper motive because six or seven years prior to his detention he had made a complaint that the final report given by the Police Officer in respect of the first information given by him in connection with an incident at Sealdah, the accused was punished and departmental action was taken against the investigating Police Officer. In view of this grudge the police have often threatened the petitioner and tried to harass him in various ways which culminated in this false allegation made against him.4. Whether the act committed by the petitioner on the sole ground communicated to him would amount to a disturbance of public order or is likely to disturb public order has been considered in several decisions of this Court one of which was pronounced only yesterday, in S. K. Kader v. State of West Bengal, to which both of us were parties. In that case also the grounds were similar to the ground on which the petitioner has been detained. In fact the second ground in that case is almost identical. It was there observed by Mathew, J. :"The question whether a person has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order is one of degree and the extent of the reach of the act upon the society. An act by itself is not determinative of its own gravity. In its quality it may not differ from another but in its potentiality it may be very different. Similar acts in different contexts affect differently law and order on the one hand and public order on the other. It is always a question of degree of the harm and its effect upon the community. Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. It is the degree of disturbance and its effect upon the life of the community in a locality which determines whether the disturbance amounts only to a breach of the law and order. In the final analysis, one must always return to the facts of the case to see whether the acts perpetrated are of such a nature or of such potentiality as to travel beyond the immediate victims and affect the general or local public. A case by case adjudication gives the judicial process the impact of actuality and thereby saves it from the hazards of generalisation."5. By the application of the principles set out above, we held that the acts alleged against the detenu in the grounds served on him had the potentiality of affecting the even tempo of the life of the community in the locality by their reverberations and were sufficient to sustain the order of detention on the ground that the acts of the petitioner would disturb or would be likely to disturb the maintenance of public order.6. The ground in this case as we said earlier being similar, we must hold likewise that the acts alleged to have been committed by the petitioner are prejudicial to the maintenance of public order. Similar grounds have been considered in the other cases of this Court where it has been held that they disclose that the act or acts alleged against the detenu would disturb or would be likely to disturb public order : (See Nandlal Roy alias Nanda Dulal Rao alias Pagla v. State of West Bengal. Netaipada Shah v. The State of Bengal and Jagannath v. State of West Bengal.7. The second and third grounds are those set out in the latter of the petitioner from jail to this Court, dated March 14/16, 1972, long after the Advisory Board had met. Even so on a perusal of that letter and the second representation, it will appear that the petitioner had made similar allegations in the said second representation, which was considered by the Advisory Board after giving him a personal hearing. In that petition also he has stated that on June 15, 1971, he went to his father-in-laws house at Bhadreshwar in Hooghly. After going there he fell ill and was under medical treatment from June 16, 1971, till June 22, 1971. In view of the illness he had even lost the power to walk. He also stated therein the circumstances in which he had incurred the wrath of the police for making a complaint against them because they had sent a final report : as a result of that complaint the accused was prosecuted, convicted and sentenced and the Sub-Inspector who was investigating was also departmentally punished. Ever since, the police has been angry with him, had threatened him in various ways and was harassing him. While he stated in the letter of March 14/16, 1972 that he was arrested on July 16, 1971, by the C. R. P. which if true makes the statement in the counter-affidavit that he was arrested on July 21, 1971, to be false, he did not complain about it in any of his representations to the State Government. As these were went to the Advisory Board, it would have enquired into it. No doubt, the allegation that he had attracted the ill-will of the police as well as the fact of his illness were stated in those representations and the Board must have gone into it because it appears from the affidavit filed by the Assistant Secretary of the Home Department of West Bengal that the question of his illness at the relevant time and the medical certificate was considered by the State Government and also by the Board. What this Court has to be satisfied with is that the mandatory provisions of the Act have been complained of prejudicial to the maintenance of public order and the detenu has been given an opportunity to make his representation to the Advisory Board which after full consideration has formed an opinion that the detention is justified.
### Response:
0
### Explanation:
4. Whether the act committed by the petitioner on the sole ground communicated to him would amount to a disturbance of public order or is likely to disturb public order has been considered in several decisions of this Court one of which was pronounced only yesterday, in S. K. Kader v. State of West Bengal, to which both of us were parties. In that case also the grounds were similar to the ground on which the petitioner has been detained. In fact the second ground in that case is almost identical. It was there observed by Mathew, J. :"The question whether a person has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order is one of degree and the extent of the reach of the act upon the society. An act by itself is not determinative of its own gravity. In its quality it may not differ from another but in its potentiality it may be very different. Similar acts in different contexts affect differently law and order on the one hand and public order on the other. It is always a question of degree of the harm and its effect upon the community. Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. It is the degree of disturbance and its effect upon the life of the community in a locality which determines whether the disturbance amounts only to a breach of the law and order. In the final analysis, one must always return to the facts of the case to see whether the acts perpetrated are of such a nature or of such potentiality as to travel beyond the immediate victims and affect the general or local public. A case by case adjudication gives the judicial process the impact of actuality and thereby saves it from the hazards of generalisation."5. By the application of the principles set out above, we held that the acts alleged against the detenu in the grounds served on him had the potentiality of affecting the even tempo of the life of the community in the locality by their reverberations and were sufficient to sustain the order of detention on the ground that the acts of the petitioner would disturb or would be likely to disturb the maintenance of public order.6. The ground in this case as we said earlier being similar, we must hold likewise that the acts alleged to have been committed by the petitioner are prejudicial to the maintenance of public order. Similar grounds have been considered in the other cases of this Court where it has been held that they disclose that the act or acts alleged against the detenu would disturb or would be likely to disturb public order : (See Nandlal Roy alias Nanda Dulal Rao alias Pagla v. State of West Bengal. Netaipada Shah v. The State of Bengal and Jagannath v. State of West Bengal.7. The second and third grounds are those set out in the latter of the petitioner from jail to this Court, dated March 14/16, 1972, long after the Advisory Board had met. Even so on a perusal of that letter and the second representation, it will appear that the petitioner had made similar allegations in the said second representation, which was considered by the Advisory Board after giving him a personal hearing. In that petition also he has stated that on June 15, 1971, he went to hishouse at Bhadreshwar in Hooghly. After going there he fell ill and was under medical treatment from June 16, 1971, till June 22, 1971. In view of the illness he had even lost the power to walk. He also stated therein the circumstances in which he had incurred the wrath of the police for making a complaint against them because they had sent a final report : as a result of that complaint the accused was prosecuted, convicted and sentenced and thewho was investigating was also departmentally punished. Ever since, the police has been angry with him, had threatened him in various ways and was harassing him. While he stated in the letter of March 14/16, 1972 that he was arrested on July 16, 1971, by the C. R. P. which if true makes the statement in thethat he was arrested on July 21, 1971, to be false, he did not complain about it in any of his representations to the State Government. As these were went to the Advisory Board, it would have enquired into it. No doubt, the allegation that he had attracted theof the police as well as the fact of his illness were stated in those representations and the Board must have gone into it because it appears from the affidavit filed by the Assistant Secretary of the Home Department of West Bengal that the question of his illness at the relevant time and the medical certificate was considered by the State Government and also by the Board. What this Court has to be satisfied with is that the mandatory provisions of the Act have been complained of prejudicial to the maintenance of public order and the detenu has been given an opportunity to make his representation to the Advisory Board which after full consideration has formed an opinion that the detention is justified.
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M. V. CHANDRAKANTH Vs. SANGAPPA & ORS | that reservation to backward classes had not been introduced when the Respondent No.1s father had been admitted to school in 1953. By the time the Appellant came to be admitted to school, Reservation Policy for backward classes had been introduced. This could be the reason why the caste was not entered in the school records of the Respondent No.1s father where only Lingayat was mentioned but in the case of the Respondent No.1 the caste was mentioned as Hindu- Ganiga. 30. The Division Bench rightly held that, if the Respondent No.1s father was, in fact, Ganiga, the mere fact that his caste may not have been mentioned in his school records, or elsewhere, would not mean that he would have to be treated as a non-Ganiga by caste. The Division Bench referred to a report of the Karnataka Backward Classes Commission constituted under the Chairmanship of L.J. Havanur and in particular Paragraph 11 thereof which reads:- 11. Veerashaivas (Lingayats) claim to belong to a religion of their own, though legally they are considered as a Hindu denomination. It originated by uniting certain caste-blocks, and has grown by adding new ones which did not accept the principle of status or rank ascribed by birth. The unit of endogamy amongst veerashaivas in principle, is their denominational community, but in the process of expanding itself into a still larger community, it has allowed, perhaps, the new entrants to retain their autonomy and identity. That appears to be the reason why we find separate religious heads and monasteries of each section widespread in the State. The cases of those caste-units who have not yet been wholly assimilated into, or are half-way to, the Veerashaiva community but who could be readily identified and whose population could be ascertained have been considered separately. Such cases include the Ganigas (oil pressers), the Kumbaras (potters), the Kshowrikas (barbers), the Agasas (washermen), some Neygis (weavers), etc. 31. It appears that the finding of the Single Bench that the earlier notification in which Category II-A comprised many castes of which Ganiga was one, did not include Lingayat-Ganiga is misconceived. In the Government notification issued on 3rd March 2002, Category II-A comprised of Ganiga and other castes without referring to Lingayat Ganigas. Subsequently, on 27th January 2009, an order was issued by the Government of Karnataka to the effect that 19 sub-castes within Veerashaiva Lingayat were included in Category III-B. One of the castes so brought under Category III-B was Lingayat/Veerashaiva- Ganiga. Subsequently, however the Government issued a Notification on 28th February 2009 to the effect that the caste in Serial No.1 to 12 and 14 to 19 which were included in Category III-B as per the order/notification dated 27th January 2009 were deleted from the Category III-B and restored to the earlier position prevailing before 27th January 2009. 32. As observed by the Division Bench, the order dated 27th January 2009 shows that 19 sub-castes of Lingayat/Veerashaiva were included in Category III-B. One of the sub-castes was Lingayat/Veerashaiva- Ganiga. However, by another notification issued within a month that is 28th February 2009, the caste mentioned in Serial Nos. 1 to 12 and 14 to 19 Category III-B were deleted and the position prevailing before 27th January 2009 was restored. Lingayat/Veerashaiva-Ganiga was deleted. The intent of the order was to extend the benefit of reservation under Category II-A to the Lingayat-Ganigas also. 33. The Division Bench found that the finding of the Single Judge that Hindu-Ganiga and Lingayat-Ganiga were two different castes was not possible to accept. A Lingayat is also a Hindu governed by the Hindu Succession Act 1956, the Hindu Marriage Act 1955, the Hindu Minority and Guardianship Act 1956 and the Hindu Adoption and Maintenance Act 1956. The caste of the Respondent No.1 was thus shown as Hindu-Lingayat in the school registers by the Respondent No.1s father. 34. The Division Bench was correct in its finding that, the mere fact that the Caste Verification Committee gave a report of about 16 candidates in a few days cannot be a reason to doubt the correctness of the report. The Division Bench found that the report was made in accordance with the provisions of SC/ST and OBC Reservation Act. 35. Furthermore, during the pendency of the Writ Petition, Respondent No.1 produced a registered document of the year 1909 where the caste of the great grandfather of the Respondent No.1 was shown as Ganiger. The said document was taken on record by the Writ Court, but there was no discussion about it in the impugned order. The document is relevant in that it proves the caste of the Respondent No.1 to be Ganiga. Ganiger is a variant of the word Ganiga found in north Karnataka region. Respondent No.1 had also relied upon caste certificates issued to the relatives of the Respondent No.1 showing their caste as Ganiga. 36. The Respondent No.1 also referred to an order of this Court in Lawrence Salvador DSouza v. State of Maharashtra & Ors. (Civil Appeal No.6539/2016), where this Court directed the Committee to consider the caste certificate of the niece of the Appellant in that case for making a report about his caste. In this case, the Appellant has produced a number of caste certificates of his relatives indicating their caste as Hindu-Ganiga. After perusing the documents produced, this Court held that since the caste of the forefather of the Appellant was mentioned as Ganiger, an inference may be drawn with the help of this document that the caste of the Appellant was also Ganiga. 37. The decision of the Civil Enforcement Cell not to initiate the prosecution may have been against the directions issued by the Respondent No.2. The decision however, was justified, considering the materials on record showing the caste of the forefather and relatives of the Respondent No.1 as Ganiger or Ganiga. Even if the Caste Certificate and the Validity Certificate are ignored, there are materials including a pre-constitution registered sale deed of the Respondent No.1s grandfather showing his caste was Ganiga. | 0[ds]27. The Division Bench referred to the judgments of Karnataka High Court in Somashekhar Veerappa B. Murgod v. State of Karnataka and Another AIR 1980 Karnataka 62 and Prabhushankar K.V. v. Selection Committee for Medical Colleges & others (1981) 1 Kant.L.J. 255. In Somashekhar Veerappa B. Murgod (supra), the Single Bench held:-6. The evidence recorded and the conclusion reached by the Commission, in particular the underlined portions, clearly disclose that in the State there is a community which is called Kuruhina Setty. The hereditary avocation of this community is neyge(weaving). At some point of time in the past some of the Kuruhina Settys adopted Veerashaiva or Lingayat faith. Among Kuruhina Settys, there are both vegetarians and non-vegetarians and those who have adopted Lingayat faith are vegetarians. From the finding recorded by the Commission, it is clear that all persons belonging to Kuruhina Setty community are considered as backward irrespective of the fact that some of them are Lingayats and others are not. The petitioner has claimed that he is a Kuruhina Setty, though he is a Lingayat. He had also produced certificate issued by the Tahasildar in which it is specifically stated that the petitioner belongs to Kuruhina Setty Community. The only reason given by the Selection Committee for rejecting the claim of the petitioner is that in the transfer certificate produced by the petitioner, the community of the petitioner is given as Lingayat. Even the petitioner does not dispute that he is a Lingayat. The fact that he is a Lingayat does not mean that he does not belong to Kuruhina Setty community. As pointed out by the commission, among persons belonging to Kuruhina Setty community some have become Lingayats, but all of them are considered and identified as belonging to backward community. Therefore, a Kuruhina Setty who has become a Lingayat is not disentitled to the benefit of reservation. In this behalf it is necessary to set out the relevant portion in the appendix-1 to Government Order No. ED 44 TGL 77, Bangalore, dated 18th May, 1977, which sets out all the communities falling under the category of Neygi who are considered as Backward Community. The relevant portion reads:(i) BACKWARD COMMUNITIES XXX XXX XXX XXX10. Neygi : Kuruhinasetti, Bilimagga, Thogata, Seniga, Jamkhana, Ayiri, Avir, Sale, Padmasale, Saale, Kaikolan, Neikar, Jadar, Jandra, Swakulasale.9. In the result, I hold that every person who belongs to Kuruhina Setty community whether a Lingayat or not belongs to Backward community for the purpose of the Government Order, and can claim the benefit of special provisions subject to the income test prescribed in the Government Order and, therefore, the Selection Committee erred in rejecting the claim of the petitioner for selection to 1st Year M.B.B.S. Course as against seats reserved for Backward Communities.28. In Prabhushankar v. Selection Committee for Medical Colleges (supra), a Single Bench of Karnataka High Court held:-6. In my view there is nothing unnatural in the conduct of the petitioner or his parents in not indicating that the petitioner apart from being a Lingayat also belonged to Ganiga Community, as no one knew at that stage that special provisions would be made in their favour and omission to do so does not preclude the petitioner from claiming the benefit of reservation if in truth the petitioner belongs to Ganiga community as indicated in the certificate issued by the Tahsildar who is the competent authority to issue the necessary certificate.7. In the face of the certificate issued by the Tahsildar, it was not open for the Selection Committee to reject the claim of the petitioner on the mere ground that in the transfer certificate the community of the petitioner was shown as Lingayat as the possibility of a Lingayat being a Ganiga could not be excluded. Therefore in the absence of any other material evidence before the Selection Committee on the basis of which it could have come to the conclusion that the positioner did not belong to Ganiga Community, the application could not have been rejected. Therefore, the petitioner is entitled to the reconsideration of his case.29. The Division Bench analysed the facts of the case but found that reservation to backward classes had not been introduced when the Respondent No.1s father had been admitted to school in 1953. By the time the Appellant came to be admitted to school, Reservation Policy for backward classes had been introduced. This could be the reason why the caste was not entered in the school records of the Respondent No.1s father where only Lingayat was mentioned but in the case of the Respondent No.1 the caste was mentioned as Hindu- Ganiga.30. The Division Bench rightly held that, if the Respondent No.1s father was, in fact, Ganiga, the mere fact that his caste may not have been mentioned in his school records, or elsewhere, would not mean that he would have to be treated as a non-Ganiga by caste. The Division Bench referred to a report of the Karnataka Backward Classes Commission constituted under the Chairmanship of L.J. Havanur and in particular Paragraph 11 thereof which reads:-11. Veerashaivas (Lingayats) claim to belong to a religion of their own, though legally they are considered as a Hindu denomination. It originated by uniting certain caste-blocks, and has grown by adding new ones which did not accept the principle of status or rank ascribed by birth. The unit of endogamy amongst veerashaivas in principle, is their denominational community, but in the process of expanding itself into a still larger community, it has allowed, perhaps, the new entrants to retain their autonomy and identity. That appears to be the reason why we find separate religious heads and monasteries of each section widespread in the State. The cases of those caste-units who have not yet been wholly assimilated into, or are half-way to, the Veerashaiva community but who could be readily identified and whose population could be ascertained have been considered separately. Such cases include the Ganigas (oil pressers), the Kumbaras (potters), the Kshowrikas (barbers), the Agasas (washermen), some Neygis (weavers), etc.31. It appears that the finding of the Single Bench that the earlier notification in which Category II-A comprised many castes of which Ganiga was one, did not include Lingayat-Ganiga is misconceived. In the Government notification issued on 3rd March 2002, Category II-A comprised of Ganiga and other castes without referring to Lingayat Ganigas. Subsequently, on 27th January 2009, an order was issued by the Government of Karnataka to the effect that 19 sub-castes within Veerashaiva Lingayat were included in Category III-B. One of the castes so brought under Category III-B was Lingayat/Veerashaiva- Ganiga. Subsequently, however the Government issued a Notification on 28th February 2009 to the effect that the caste in Serial No.1 to 12 and 14 to 19 which were included in Category III-B as per the order/notification dated 27th January 2009 were deleted from the Category III-B and restored to the earlier position prevailing before 27th January 2009.32. As observed by the Division Bench, the order dated 27th January 2009 shows that 19 sub-castes of Lingayat/Veerashaiva were included in Category III-B. One of the sub-castes was Lingayat/Veerashaiva- Ganiga. However, by another notification issued within a month that is 28th February 2009, the caste mentioned in Serial Nos. 1 to 12 and 14 to 19 Category III-B were deleted and the position prevailing before 27th January 2009 was restored. Lingayat/Veerashaiva-Ganiga was deleted. The intent of the order was to extend the benefit of reservation under Category II-A to the Lingayat-Ganigas also.33. The Division Bench found that the finding of the Single Judge that Hindu-Ganiga and Lingayat-Ganiga were two different castes was not possible to accept. A Lingayat is also a Hindu governed by the Hindu Succession Act 1956, the Hindu Marriage Act 1955, the Hindu Minority and Guardianship Act 1956 and the Hindu Adoption and Maintenance Act 1956. The caste of the Respondent No.1 was thus shown as Hindu-Lingayat in the school registers by the Respondent No.1s father.34. The Division Bench was correct in its finding that, the mere fact that the Caste Verification Committee gave a report of about 16 candidates in a few days cannot be a reason to doubt the correctness of the report. The Division Bench found that the report was made in accordance with the provisions of SC/ST and OBC Reservation Act.35. Furthermore, during the pendency of the Writ Petition, Respondent No.1 produced a registered document of the year 1909 where the caste of the great grandfather of the Respondent No.1 was shown as Ganiger. The said document was taken on record by the Writ Court, but there was no discussion about it in the impugned order. The document is relevant in that it proves the caste of the Respondent No.1 to be Ganiga. Ganiger is a variant of the word Ganiga found in north Karnataka region. Respondent No.1 had also relied upon caste certificates issued to the relatives of the Respondent No.1 showing their caste as Ganiga.37. The decision of the Civil Enforcement Cell not to initiate the prosecution may have been against the directions issued by the Respondent No.2. The decision however, was justified, considering the materials on record showing the caste of the forefather and relatives of the Respondent No.1 as Ganiger or Ganiga. Even if the Caste Certificate and the Validity Certificate are ignored, there are materials including a pre-constitution registered sale deed of the Respondent No.1s grandfather showing his caste was Ganiga. | 0 | 3,823 | 1,740 | ### 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:
that reservation to backward classes had not been introduced when the Respondent No.1s father had been admitted to school in 1953. By the time the Appellant came to be admitted to school, Reservation Policy for backward classes had been introduced. This could be the reason why the caste was not entered in the school records of the Respondent No.1s father where only Lingayat was mentioned but in the case of the Respondent No.1 the caste was mentioned as Hindu- Ganiga. 30. The Division Bench rightly held that, if the Respondent No.1s father was, in fact, Ganiga, the mere fact that his caste may not have been mentioned in his school records, or elsewhere, would not mean that he would have to be treated as a non-Ganiga by caste. The Division Bench referred to a report of the Karnataka Backward Classes Commission constituted under the Chairmanship of L.J. Havanur and in particular Paragraph 11 thereof which reads:- 11. Veerashaivas (Lingayats) claim to belong to a religion of their own, though legally they are considered as a Hindu denomination. It originated by uniting certain caste-blocks, and has grown by adding new ones which did not accept the principle of status or rank ascribed by birth. The unit of endogamy amongst veerashaivas in principle, is their denominational community, but in the process of expanding itself into a still larger community, it has allowed, perhaps, the new entrants to retain their autonomy and identity. That appears to be the reason why we find separate religious heads and monasteries of each section widespread in the State. The cases of those caste-units who have not yet been wholly assimilated into, or are half-way to, the Veerashaiva community but who could be readily identified and whose population could be ascertained have been considered separately. Such cases include the Ganigas (oil pressers), the Kumbaras (potters), the Kshowrikas (barbers), the Agasas (washermen), some Neygis (weavers), etc. 31. It appears that the finding of the Single Bench that the earlier notification in which Category II-A comprised many castes of which Ganiga was one, did not include Lingayat-Ganiga is misconceived. In the Government notification issued on 3rd March 2002, Category II-A comprised of Ganiga and other castes without referring to Lingayat Ganigas. Subsequently, on 27th January 2009, an order was issued by the Government of Karnataka to the effect that 19 sub-castes within Veerashaiva Lingayat were included in Category III-B. One of the castes so brought under Category III-B was Lingayat/Veerashaiva- Ganiga. Subsequently, however the Government issued a Notification on 28th February 2009 to the effect that the caste in Serial No.1 to 12 and 14 to 19 which were included in Category III-B as per the order/notification dated 27th January 2009 were deleted from the Category III-B and restored to the earlier position prevailing before 27th January 2009. 32. As observed by the Division Bench, the order dated 27th January 2009 shows that 19 sub-castes of Lingayat/Veerashaiva were included in Category III-B. One of the sub-castes was Lingayat/Veerashaiva- Ganiga. However, by another notification issued within a month that is 28th February 2009, the caste mentioned in Serial Nos. 1 to 12 and 14 to 19 Category III-B were deleted and the position prevailing before 27th January 2009 was restored. Lingayat/Veerashaiva-Ganiga was deleted. The intent of the order was to extend the benefit of reservation under Category II-A to the Lingayat-Ganigas also. 33. The Division Bench found that the finding of the Single Judge that Hindu-Ganiga and Lingayat-Ganiga were two different castes was not possible to accept. A Lingayat is also a Hindu governed by the Hindu Succession Act 1956, the Hindu Marriage Act 1955, the Hindu Minority and Guardianship Act 1956 and the Hindu Adoption and Maintenance Act 1956. The caste of the Respondent No.1 was thus shown as Hindu-Lingayat in the school registers by the Respondent No.1s father. 34. The Division Bench was correct in its finding that, the mere fact that the Caste Verification Committee gave a report of about 16 candidates in a few days cannot be a reason to doubt the correctness of the report. The Division Bench found that the report was made in accordance with the provisions of SC/ST and OBC Reservation Act. 35. Furthermore, during the pendency of the Writ Petition, Respondent No.1 produced a registered document of the year 1909 where the caste of the great grandfather of the Respondent No.1 was shown as Ganiger. The said document was taken on record by the Writ Court, but there was no discussion about it in the impugned order. The document is relevant in that it proves the caste of the Respondent No.1 to be Ganiga. Ganiger is a variant of the word Ganiga found in north Karnataka region. Respondent No.1 had also relied upon caste certificates issued to the relatives of the Respondent No.1 showing their caste as Ganiga. 36. The Respondent No.1 also referred to an order of this Court in Lawrence Salvador DSouza v. State of Maharashtra & Ors. (Civil Appeal No.6539/2016), where this Court directed the Committee to consider the caste certificate of the niece of the Appellant in that case for making a report about his caste. In this case, the Appellant has produced a number of caste certificates of his relatives indicating their caste as Hindu-Ganiga. After perusing the documents produced, this Court held that since the caste of the forefather of the Appellant was mentioned as Ganiger, an inference may be drawn with the help of this document that the caste of the Appellant was also Ganiga. 37. The decision of the Civil Enforcement Cell not to initiate the prosecution may have been against the directions issued by the Respondent No.2. The decision however, was justified, considering the materials on record showing the caste of the forefather and relatives of the Respondent No.1 as Ganiger or Ganiga. Even if the Caste Certificate and the Validity Certificate are ignored, there are materials including a pre-constitution registered sale deed of the Respondent No.1s grandfather showing his caste was Ganiga.
### Response:
0
### Explanation:
the necessary certificate.7. In the face of the certificate issued by the Tahsildar, it was not open for the Selection Committee to reject the claim of the petitioner on the mere ground that in the transfer certificate the community of the petitioner was shown as Lingayat as the possibility of a Lingayat being a Ganiga could not be excluded. Therefore in the absence of any other material evidence before the Selection Committee on the basis of which it could have come to the conclusion that the positioner did not belong to Ganiga Community, the application could not have been rejected. Therefore, the petitioner is entitled to the reconsideration of his case.29. The Division Bench analysed the facts of the case but found that reservation to backward classes had not been introduced when the Respondent No.1s father had been admitted to school in 1953. By the time the Appellant came to be admitted to school, Reservation Policy for backward classes had been introduced. This could be the reason why the caste was not entered in the school records of the Respondent No.1s father where only Lingayat was mentioned but in the case of the Respondent No.1 the caste was mentioned as Hindu- Ganiga.30. The Division Bench rightly held that, if the Respondent No.1s father was, in fact, Ganiga, the mere fact that his caste may not have been mentioned in his school records, or elsewhere, would not mean that he would have to be treated as a non-Ganiga by caste. The Division Bench referred to a report of the Karnataka Backward Classes Commission constituted under the Chairmanship of L.J. Havanur and in particular Paragraph 11 thereof which reads:-11. Veerashaivas (Lingayats) claim to belong to a religion of their own, though legally they are considered as a Hindu denomination. It originated by uniting certain caste-blocks, and has grown by adding new ones which did not accept the principle of status or rank ascribed by birth. The unit of endogamy amongst veerashaivas in principle, is their denominational community, but in the process of expanding itself into a still larger community, it has allowed, perhaps, the new entrants to retain their autonomy and identity. That appears to be the reason why we find separate religious heads and monasteries of each section widespread in the State. The cases of those caste-units who have not yet been wholly assimilated into, or are half-way to, the Veerashaiva community but who could be readily identified and whose population could be ascertained have been considered separately. Such cases include the Ganigas (oil pressers), the Kumbaras (potters), the Kshowrikas (barbers), the Agasas (washermen), some Neygis (weavers), etc.31. It appears that the finding of the Single Bench that the earlier notification in which Category II-A comprised many castes of which Ganiga was one, did not include Lingayat-Ganiga is misconceived. In the Government notification issued on 3rd March 2002, Category II-A comprised of Ganiga and other castes without referring to Lingayat Ganigas. Subsequently, on 27th January 2009, an order was issued by the Government of Karnataka to the effect that 19 sub-castes within Veerashaiva Lingayat were included in Category III-B. One of the castes so brought under Category III-B was Lingayat/Veerashaiva- Ganiga. Subsequently, however the Government issued a Notification on 28th February 2009 to the effect that the caste in Serial No.1 to 12 and 14 to 19 which were included in Category III-B as per the order/notification dated 27th January 2009 were deleted from the Category III-B and restored to the earlier position prevailing before 27th January 2009.32. As observed by the Division Bench, the order dated 27th January 2009 shows that 19 sub-castes of Lingayat/Veerashaiva were included in Category III-B. One of the sub-castes was Lingayat/Veerashaiva- Ganiga. However, by another notification issued within a month that is 28th February 2009, the caste mentioned in Serial Nos. 1 to 12 and 14 to 19 Category III-B were deleted and the position prevailing before 27th January 2009 was restored. Lingayat/Veerashaiva-Ganiga was deleted. The intent of the order was to extend the benefit of reservation under Category II-A to the Lingayat-Ganigas also.33. The Division Bench found that the finding of the Single Judge that Hindu-Ganiga and Lingayat-Ganiga were two different castes was not possible to accept. A Lingayat is also a Hindu governed by the Hindu Succession Act 1956, the Hindu Marriage Act 1955, the Hindu Minority and Guardianship Act 1956 and the Hindu Adoption and Maintenance Act 1956. The caste of the Respondent No.1 was thus shown as Hindu-Lingayat in the school registers by the Respondent No.1s father.34. The Division Bench was correct in its finding that, the mere fact that the Caste Verification Committee gave a report of about 16 candidates in a few days cannot be a reason to doubt the correctness of the report. The Division Bench found that the report was made in accordance with the provisions of SC/ST and OBC Reservation Act.35. Furthermore, during the pendency of the Writ Petition, Respondent No.1 produced a registered document of the year 1909 where the caste of the great grandfather of the Respondent No.1 was shown as Ganiger. The said document was taken on record by the Writ Court, but there was no discussion about it in the impugned order. The document is relevant in that it proves the caste of the Respondent No.1 to be Ganiga. Ganiger is a variant of the word Ganiga found in north Karnataka region. Respondent No.1 had also relied upon caste certificates issued to the relatives of the Respondent No.1 showing their caste as Ganiga.37. The decision of the Civil Enforcement Cell not to initiate the prosecution may have been against the directions issued by the Respondent No.2. The decision however, was justified, considering the materials on record showing the caste of the forefather and relatives of the Respondent No.1 as Ganiger or Ganiga. Even if the Caste Certificate and the Validity Certificate are ignored, there are materials including a pre-constitution registered sale deed of the Respondent No.1s grandfather showing his caste was Ganiga.
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Srikant Roy Vs. State Of Jharkhand | Shankar Mukhopaddya)Deputy Secretary of StateNo. 6/Estab Jud 610/2001 Perso. 4544/after Ranchi Date 20.08.2004Copy to- Superintendent, Government press, Doranda Ranchi, with request that be published in next edition of Jharkhand official Gazette.Deputy Secretary of Govt,"17. The position as it stood as on 30th April 2008, is stated in paragraph 4 of the affidavit filed by the High Court dated 30th March, 2016, which reads thus:"That it is stated that as on 30.04.2008, the sanctioned strength of the Jharkhand Superior Judicial Service was 145 and working strength was 93, which is shown herein below:-By Promotion from Sub-Judges on the basis of merit-cum-seniority (50%)Promotion (By way of selection) through limited competitive Examination (25%)By direct recruitment from Bar (25%)Sanctioned Strength - 145733636Working strength = 93550038Vacancies = 521836-2=3402 (surplus)18. Considering the fact that no vacancy existed in the quota of direct recruit as on 30th August 2008, the writ petitioners (respondents 4 to 11 in the leading appeal), who could participate in the selection process for direct recruit alone and not by way of promotion through Limited Competitive Examination, had no locus to challenge the selection process of 2008.19. The High Court has overlooked the distinction between "post" and "vacancy". If the requisite posts were already exhausted by the direct recruits against the earmarked quota for direct recruitment, merely because some vacancies occur, it would not be open to the aspiring candidates against the direct recruit quota to challenge the selection process commenced for the in service judicial officers by promotion through Limited Competitive Examination. The cadre strength is always measured by the number of posts comprising the cadre. The right to be considered for appointment can only be claimed in respect of a post in the given cadre. The percentage of quota has to be worked out in relation to number of posts which form the cadre and has no relevance to the vacancy that would occur. This aspect has been glossed over by the High Court in the impugned judgment. Suffice it to observe that as no post for direct recruits existed as on 30th April, 2008, the challenge to the selection process to fill up the vacancy by promotion through Limited Competitive Examination, at the instance of aspiring candidates by direct recruitment cannot be countenanced. The Writ Petition filed by such aspiring candidates (WP(S) No. 4159/2008), therefore, ought to have been dismissed by the High Court.20. Having said this, it must follow that the selection process of 2008 which has been completed pursuant to the liberty given by this Court by way of interim order is proper and has become final. On this finding, the challenge in the companion Writ Petitions to the selection process commenced for the year 2010 does not merit interference. In that, the vacancy position as on the date of the notification (i.e. 4th November, 2010), for commencing selection process in 2010, were only upto 8 vacancies for appointment by direct recruitment from the Bar. None of the writ petitioners before this Court claim to be within the first 8 merit list candidates. The petitioners were placed at serial No.9 onwards. The first 8 candidates having been appointed, the selection process for 2010 would get exhausted and considered as complete. Merely because the names of the writ petitioners appear in the selection list, they do not acquire any indefeasible right in getting appointed. The vacancies have to be filled up in conformity with the extant Regulations. The selection process in which the writ petitioners participated, was commenced on the basis of the stated notification for 8 notified vacancies and appointments have been made of the meritorious candidates. That selection process must be treated as having come to an end. The fact that the notifications for subsequent selection process (commenced after 2010), issued by the High Court notifying different or higher number of posts for direct recruitment, can be of no avail to the selection process of 2010. That changed position is ascribable to subsequent period on the basis of availability of posts for direct recruits. Not for selection process of 2010. Similarly, the fact that one candidate amongst the appointed eight candidates after due selection subsequently resigned, no right can accrue to the Writ Petitioner(s) on completion of the selection process of 2010. Reliance placed on Rule 21 which requires preparation of select list and to notify the same or to remain valid for one year from the date of being notified, is also inapposite. That is not a Rule mandating preparation of a wait list of the selected candidates. No express provision for retaining the select list as wait list for one year has been brought to our notice. On the other hand, the effect of Rule 22 is that once the names of candidates from the notified select list are recommended to the Government proportionate to the vacancies available for appointment; and recommended candidates are so appointed or on expiry of one year from notifying the select list whichever is earlier, the select list would become ineffective qua the subject selection process. For, that selection process is concluded. None of the writ petitioners can, therefore, succeed in getting the relief claimed by them.21. The decision in the case of Rakhi Ray & Ors. v. High Court of Delhi and Ors., 2010(1) S.C.T. 720 : 2010(1) Recent Apex Judgments (R.A.J.) 520 : (2010) 2 SCC 637 will be of no avail to the writ petitioners and would instead support the view we have already taken. The writ petitioners cannot be heard to claim relief on the basis of the subsequent selection process commenced pursuant to the notification dated 22nd February 2013. The High Court was not expected to fill the vacancies over and above the vacancies advertised for selection process of 2010. Moreover, since the writ petitioners have participated in the earlier selection process of 2010 and not in the subsequent selection process conducted on the basis of Notification dated 22nd February 2013 for the year 2012, they cannot be given any relief.22. Considering the above, the | 1[ds]18. Considering the fact that no vacancy existed in the quota of direct recruit as on 30th August 2008, the writ petitioners (respondents 4 to 11 in the leading appeal), who could participate in the selection process for direct recruit alone and notion through Limited Competitive Examination, had no locus to challenge the selection process of 2008.19. The High Court has overlooked the distinction between "post" and "vacancy". If the requisite posts were already exhausted by the direct recruits against the earmarked quota for direct recruitment, merely because some vacancies occur, it would not be open to the aspiring candidates against the direct recruit quota to challenge the selection process commenced for the in service judicial officers by promotion through Limited Competitive Examination. The cadre strength is always measured by the number of posts comprising the cadre. The right to be considered for appointment can only be claimed in respect of a post in the given cadre. The percentage of quota has to be worked out in relation to number of posts which form the cadre and has no relevance to the vacancy that would occur. This aspect has been glossed over by the High Court in the impugned judgment. Suffice it to observe that as no post for direct recruits existed as on 30th April, 2008, the challenge to the selection process to fill up the vacancy by promotion through Limited Competitive Examination, at the instance of aspiring candidates by direct recruitment cannot be countenanced. The Writ Petition filed by such aspiring candidates (WP(S) No. 4159/2008), therefore, ought to have been dismissed by the High Court.20. Having said this, it must follow that the selection process of 2008 which has been completed pursuant to the liberty given by this Courtrim order is proper and has become final. On this finding, the challenge in the companion Writ Petitions to the selection process commenced for the year 2010 does not merit interference. In that, the vacancy position as on the date of the notification (i.e. 4th November, 2010), for commencing selection process in 2010, were only upto 8 vacancies for appointment by direct recruitment from the Bar. None of the writ petitioners before this Court claim to be within the first 8 merit list candidates. The petitioners were placed at serial No.9 onwards. The first 8 candidates having been appointed, the selection process for 2010 would get exhausted and considered as complete. Merely because the names of the writ petitioners appear in the selection list, they do not acquire any indefeasible right in getting appointed. The vacancies have to be filled up in conformity with the extant Regulations. The selection process in which the writ petitioners participated, was commenced on the basis of the stated notification for 8 notified vacancies and appointments have been made of the meritorious candidates. That selection process must be treated as having come to an end. The fact that the notifications for subsequent selection process (commenced after 2010), issued by the High Court notifying different or higher number of posts for direct recruitment, can be of no avail to the selection process of 2010. That changed position is ascribable to subsequent period on the basis of availability of posts for direct recruits. Not for selection process of 2010. Similarly, the fact that one candidate amongst the appointed eight candidates after due selection subsequently resigned, no right can accrue to the Writ Petitioner(s) on completion of the selection process of 2010. Reliance placed on Rule 21 which requires preparation of select list and to notify the same or to remain valid for one year from the date of being notified, is also inapposite. That is not a Rule mandating preparation of a wait list of the selected candidates. No express provision for retaining the select list as wait list for one year has been brought to our notice. On the other hand, the effect of Rule 22 is that once the names of candidates from the notified select list are recommended to the Government proportionate to the vacancies available for appointment; and recommended candidates are so appointed or on expiry of one year from notifying the select list whichever is earlier, the select list would become ineffective qua the subject selection process. For, that selection process is concluded. None of the writ petitioners can, therefore, succeed in getting the relief claimed by them. | 1 | 6,956 | 811 | ### Instruction:
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Shankar Mukhopaddya)Deputy Secretary of StateNo. 6/Estab Jud 610/2001 Perso. 4544/after Ranchi Date 20.08.2004Copy to- Superintendent, Government press, Doranda Ranchi, with request that be published in next edition of Jharkhand official Gazette.Deputy Secretary of Govt,"17. The position as it stood as on 30th April 2008, is stated in paragraph 4 of the affidavit filed by the High Court dated 30th March, 2016, which reads thus:"That it is stated that as on 30.04.2008, the sanctioned strength of the Jharkhand Superior Judicial Service was 145 and working strength was 93, which is shown herein below:-By Promotion from Sub-Judges on the basis of merit-cum-seniority (50%)Promotion (By way of selection) through limited competitive Examination (25%)By direct recruitment from Bar (25%)Sanctioned Strength - 145733636Working strength = 93550038Vacancies = 521836-2=3402 (surplus)18. Considering the fact that no vacancy existed in the quota of direct recruit as on 30th August 2008, the writ petitioners (respondents 4 to 11 in the leading appeal), who could participate in the selection process for direct recruit alone and not by way of promotion through Limited Competitive Examination, had no locus to challenge the selection process of 2008.19. The High Court has overlooked the distinction between "post" and "vacancy". If the requisite posts were already exhausted by the direct recruits against the earmarked quota for direct recruitment, merely because some vacancies occur, it would not be open to the aspiring candidates against the direct recruit quota to challenge the selection process commenced for the in service judicial officers by promotion through Limited Competitive Examination. The cadre strength is always measured by the number of posts comprising the cadre. The right to be considered for appointment can only be claimed in respect of a post in the given cadre. The percentage of quota has to be worked out in relation to number of posts which form the cadre and has no relevance to the vacancy that would occur. This aspect has been glossed over by the High Court in the impugned judgment. Suffice it to observe that as no post for direct recruits existed as on 30th April, 2008, the challenge to the selection process to fill up the vacancy by promotion through Limited Competitive Examination, at the instance of aspiring candidates by direct recruitment cannot be countenanced. The Writ Petition filed by such aspiring candidates (WP(S) No. 4159/2008), therefore, ought to have been dismissed by the High Court.20. Having said this, it must follow that the selection process of 2008 which has been completed pursuant to the liberty given by this Court by way of interim order is proper and has become final. On this finding, the challenge in the companion Writ Petitions to the selection process commenced for the year 2010 does not merit interference. In that, the vacancy position as on the date of the notification (i.e. 4th November, 2010), for commencing selection process in 2010, were only upto 8 vacancies for appointment by direct recruitment from the Bar. None of the writ petitioners before this Court claim to be within the first 8 merit list candidates. The petitioners were placed at serial No.9 onwards. The first 8 candidates having been appointed, the selection process for 2010 would get exhausted and considered as complete. Merely because the names of the writ petitioners appear in the selection list, they do not acquire any indefeasible right in getting appointed. The vacancies have to be filled up in conformity with the extant Regulations. The selection process in which the writ petitioners participated, was commenced on the basis of the stated notification for 8 notified vacancies and appointments have been made of the meritorious candidates. That selection process must be treated as having come to an end. The fact that the notifications for subsequent selection process (commenced after 2010), issued by the High Court notifying different or higher number of posts for direct recruitment, can be of no avail to the selection process of 2010. That changed position is ascribable to subsequent period on the basis of availability of posts for direct recruits. Not for selection process of 2010. Similarly, the fact that one candidate amongst the appointed eight candidates after due selection subsequently resigned, no right can accrue to the Writ Petitioner(s) on completion of the selection process of 2010. Reliance placed on Rule 21 which requires preparation of select list and to notify the same or to remain valid for one year from the date of being notified, is also inapposite. That is not a Rule mandating preparation of a wait list of the selected candidates. No express provision for retaining the select list as wait list for one year has been brought to our notice. On the other hand, the effect of Rule 22 is that once the names of candidates from the notified select list are recommended to the Government proportionate to the vacancies available for appointment; and recommended candidates are so appointed or on expiry of one year from notifying the select list whichever is earlier, the select list would become ineffective qua the subject selection process. For, that selection process is concluded. None of the writ petitioners can, therefore, succeed in getting the relief claimed by them.21. The decision in the case of Rakhi Ray & Ors. v. High Court of Delhi and Ors., 2010(1) S.C.T. 720 : 2010(1) Recent Apex Judgments (R.A.J.) 520 : (2010) 2 SCC 637 will be of no avail to the writ petitioners and would instead support the view we have already taken. The writ petitioners cannot be heard to claim relief on the basis of the subsequent selection process commenced pursuant to the notification dated 22nd February 2013. The High Court was not expected to fill the vacancies over and above the vacancies advertised for selection process of 2010. Moreover, since the writ petitioners have participated in the earlier selection process of 2010 and not in the subsequent selection process conducted on the basis of Notification dated 22nd February 2013 for the year 2012, they cannot be given any relief.22. Considering the above, the
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### Explanation:
18. Considering the fact that no vacancy existed in the quota of direct recruit as on 30th August 2008, the writ petitioners (respondents 4 to 11 in the leading appeal), who could participate in the selection process for direct recruit alone and notion through Limited Competitive Examination, had no locus to challenge the selection process of 2008.19. The High Court has overlooked the distinction between "post" and "vacancy". If the requisite posts were already exhausted by the direct recruits against the earmarked quota for direct recruitment, merely because some vacancies occur, it would not be open to the aspiring candidates against the direct recruit quota to challenge the selection process commenced for the in service judicial officers by promotion through Limited Competitive Examination. The cadre strength is always measured by the number of posts comprising the cadre. The right to be considered for appointment can only be claimed in respect of a post in the given cadre. The percentage of quota has to be worked out in relation to number of posts which form the cadre and has no relevance to the vacancy that would occur. This aspect has been glossed over by the High Court in the impugned judgment. Suffice it to observe that as no post for direct recruits existed as on 30th April, 2008, the challenge to the selection process to fill up the vacancy by promotion through Limited Competitive Examination, at the instance of aspiring candidates by direct recruitment cannot be countenanced. The Writ Petition filed by such aspiring candidates (WP(S) No. 4159/2008), therefore, ought to have been dismissed by the High Court.20. Having said this, it must follow that the selection process of 2008 which has been completed pursuant to the liberty given by this Courtrim order is proper and has become final. On this finding, the challenge in the companion Writ Petitions to the selection process commenced for the year 2010 does not merit interference. In that, the vacancy position as on the date of the notification (i.e. 4th November, 2010), for commencing selection process in 2010, were only upto 8 vacancies for appointment by direct recruitment from the Bar. None of the writ petitioners before this Court claim to be within the first 8 merit list candidates. The petitioners were placed at serial No.9 onwards. The first 8 candidates having been appointed, the selection process for 2010 would get exhausted and considered as complete. Merely because the names of the writ petitioners appear in the selection list, they do not acquire any indefeasible right in getting appointed. The vacancies have to be filled up in conformity with the extant Regulations. The selection process in which the writ petitioners participated, was commenced on the basis of the stated notification for 8 notified vacancies and appointments have been made of the meritorious candidates. That selection process must be treated as having come to an end. The fact that the notifications for subsequent selection process (commenced after 2010), issued by the High Court notifying different or higher number of posts for direct recruitment, can be of no avail to the selection process of 2010. That changed position is ascribable to subsequent period on the basis of availability of posts for direct recruits. Not for selection process of 2010. Similarly, the fact that one candidate amongst the appointed eight candidates after due selection subsequently resigned, no right can accrue to the Writ Petitioner(s) on completion of the selection process of 2010. Reliance placed on Rule 21 which requires preparation of select list and to notify the same or to remain valid for one year from the date of being notified, is also inapposite. That is not a Rule mandating preparation of a wait list of the selected candidates. No express provision for retaining the select list as wait list for one year has been brought to our notice. On the other hand, the effect of Rule 22 is that once the names of candidates from the notified select list are recommended to the Government proportionate to the vacancies available for appointment; and recommended candidates are so appointed or on expiry of one year from notifying the select list whichever is earlier, the select list would become ineffective qua the subject selection process. For, that selection process is concluded. None of the writ petitioners can, therefore, succeed in getting the relief claimed by them.
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Sesa Industries Ltd Vs. Krishna H. Bajaj | to promote any interest adverse to that of the latter comprising the same class whom they purport to represent and the scheme as a whole is just, fair and reasonable from the point of view of a prudent and reasonable businessman taking a commercial decision. 36. Thus, the first question is as to whether the appellant and SGL had disclosed sufficient information to the shareholders so as to enable them to arrive at an informed decision? The proviso to Section 391 (2) requires a company to "disclose pendency of any investigation in relation to the company under Sections 235 to 351, and the like". Though it is true that inspection under Section 209A of the Act, strictly speaking, may not be in the nature of an investigation, but at the same time it cannot be construed as an innocuous exercise for record, in as much as if anything objectionable or fraudulent in the conduct of the affairs of the company is detected during the course of inspection, it may lay the foundation for the purpose of investigations under Sections 235 and 237 of the Act, as is the case here. Therefore, existence of proceedings under Section 209A must be disclosed in terms of the proviso to Section 391(2). In any event, we are of the opinion that since the said issue is a question of fact, based on appreciation of evidence, and both the Courts below have held that the information supplied was sufficient, particularly in light of the order passed by the Single Judge on 18th March, 2006, we are not inclined to disturb the said concurrent finding of the Courts below, particularly when it is not shown that the said finding suffers from any demonstrable perversity. (See: Firm Sriniwas Ram Kumar Vs. Mahabir Prasad & Ors. (1951 SCR 277 ) and Ganga Bishnu Swaika Vs. Calcutta Pinjrapole Society (AIR 1968 SC 615 .) 37. The next issue that arises for our determination is whether the Division Bench was correct in holding that the affidavit filed by the Official Liquidator was vitiated on account of non-disclosure of all material facts. From a bare perusal of the affidavit dated 10th February, 2006, it is manifest, ex facie, that before filing the affidavit, the said official had not examined and applied its mind to the findings contained in the inspection report under Section 209A of the Act. While it is true that it was not within the domain of the Official Liquidator to determine the relvency or otherwise of the said report, yet he was obliged to incorporate in his affidavit the contents of the inspection report. We are convinced that the official liquidator had failed to discharge the statutory burden placed on him under the second proviso to Section 394(1) of the Act. 38. An Official Liquidator acts as a watchdog of the Company Court, reposed with the duty of satisfying the Court that the affairs of the company, being dissolved, have not been carried out in a manner prejudicial to the interests of its members and the interest of the public at large. In essence, the Official Liquidator assists the Court in appreciating the other side of the picture before it, and it is only upon consideration of the amalgamation scheme, together with the report of the Official Liquidator, that the Court can arrive at a final conclusion that the scheme is in keeping with the mandate of the Act and that of public interest in general. It, therefore, follows that for examining the questions as to why the transferor-company came into existence; for what purpose it was set up; who were its promoters; who were controlling it; what object was sought to be achieved by dissolving it and merging with another company, by way of a scheme of amalgamation, the report of an official liquidator is of seminal importance and in fact facilitates the Company Judge to record its satisfaction as to whether or not the affairs of the transferor company had been carried on in a manner prejudicial to the interest of the minority and to the public interest. 39. In the present case, we are unable to appreciate why the Official Liquidator, who was aware of the inspection report dated 17th February, 2006 under Section 209A containing adverse comments on the affairs of both the companies, relied only on the report of the auditors, which admittedly was not even verified. We can only lament the conduct of the official liquidator. 40. Having held that the Official Liquidator had failed to discharge the duty cast on him in terms of the second proviso to Section 394(1) of the Act, the next issue that requires consideration is whether sanction of a scheme of amalgamation can be held up merely because the conduct of an Official Liquidator is found to be blameworthy? We are of the view that it will neither be proper nor feasible to lay down absolute parameters in this behalf. The effect of misdemeanour on the part of the official liquidator on the scheme as such would depend on the facts obtaining in each case and ordinarily the Company Judge should be the final arbiter on that issue. In the instant case, indubitably, the findings in the report under Section 209A of the Act were placed before the Company Judge, and he had considered the same while sanctioning the scheme of amalgamation. Therefore, in the facts and circumstances of the present case, the Company Judge had, before him, all material facts which had a direct bearing on the sanction of the amalgamation scheme, despite the aforestated lapse on the part of the Official Liquidator. In this view of the matter, we are of the considered opinion that the Company Judge, having examined all material facts, was justified in sanctioning the scheme of amalgamation, particularly when the current investigation under Section 235 of the Act was initiated pursuant to a complaint filed by respondent No.1 subsequent to the order of the Company Judge sanctioning the scheme. 41. | 1[ds]Thus, the first question is as to whether the appellant and SGL had disclosed sufficient information to the shareholders so as to enable them to arrive at an informed decision?The proviso to Section 391 (2) requires a company to "disclose pendency of any investigation in relation to the company under Sections 235 to 351, and the like". Though it is true that inspection under Section 209A of the Act, strictly speaking, may not be in the nature of an investigation, but at the same time it cannot be construed as an innocuous exercise for record, in as much as if anything objectionable or fraudulent in the conduct of the affairs of the company is detected during the course of inspection, it may lay the foundation for the purpose of investigations under Sections 235 and 237 of the Act, as is the case here. Therefore, existence of proceedings under Section 209A must be disclosed in terms of the proviso to Section 391(2). In any event, we are of the opinion that since the said issue is a question of fact, based on appreciation of evidence, and both the Courts below have held that the information supplied was sufficient, particularly in light of the order passed by the Single Judge on 18th March, 2006, we are not inclined to disturb the said concurrent finding of the Courts below, particularly when it is not shown that the said finding suffers from any demonstrable perversity. (See: Firm Sriniwas Ram Kumar Vs. Mahabir Prasad & Ors. (1951 SCR 277 ) and Ganga Bishnu Swaika Vs. Calcutta Pinjrapole Society (AIR 1968 SC 615 .)e next issue that arises for our determination is whether the Division Bench was correct in holding that the affidavit filed by the Official Liquidator was vitiated on account of non-disclosure of all material facts.From a bare perusal of the affidavit dated 10th February, 2006, it is manifest, ex facie, that before filing the affidavit, the said official had not examined and applied its mind to the findings contained in the inspection report under Section 209A of the Act. While it is true that it was not within the domain of the Official Liquidator to determine the relvency or otherwise of the said report, yet he was obliged to incorporate in his affidavit the contents of the inspection report. We are convinced that the official liquidator had failed to discharge the statutory burden placed on him under the second proviso to Section 394(1) of the Act.An Official Liquidator acts as a watchdog of the Company Court, reposed with the duty of satisfying the Court that the affairs of the company, being dissolved, have not been carried out in a manner prejudicial to the interests of its members and the interest of the public at large. In essence, the Official Liquidator assists the Court in appreciating the other side of the picture before it, and it is only upon consideration of the amalgamation scheme, together with the report of the Official Liquidator, that the Court can arrive at a final conclusion that the scheme is in keeping with the mandate of the Act and that of public interest in general. It, therefore, follows that for examining the questions as to why the transferor-company came into existence; for what purpose it was set up; who were its promoters; who were controlling it; what object was sought to be achieved by dissolving it and merging with another company, by way of a scheme of amalgamation, the report of an official liquidator is of seminal importance and in fact facilitates the Company Judge to record its satisfaction as to whether or not the affairs of the transferor company had been carried on in a manner prejudicial to the interest of the minority and to the public interest.In the present case, we are unable to appreciate why the Official Liquidator, who was aware of the inspection report dated 17th February, 2006 under Section 209A containing adverse comments on the affairs of both the companies, relied only on the report of the auditors, which admittedly was not even verified. We can only lament the conduct of the official liquidator.Having held that the Official Liquidator had failed to discharge the duty cast on him in terms of the second proviso to Section 394(1) of the Act, the next issue that requires consideration is whether sanction of a scheme of amalgamation can be held up merely because the conduct of an Official Liquidator is found to be blameworthy? We are of the view that it will neither be proper nor feasible to lay down absolute parameters in this behalf. The effect of misdemeanour on the part of the official liquidator on the scheme as such would depend on the facts obtaining in each case and ordinarily the Company Judge should be the final arbiter on that issue. In the instant case, indubitably, the findings in the report under Section 209A of the Act were placed before the Company Judge, and he had considered the same while sanctioning the scheme of amalgamation. Therefore, in the facts and circumstances of the present case, the Company Judge had, before him, all material facts which had a direct bearing on the sanction of the amalgamation scheme, despite the aforestated lapse on the part of the Official Liquidator. In this view of the matter, we are of the considered opinion that the Company Judge, having examined all material facts, was justified in sanctioning the scheme of amalgamation, particularly when the current investigation under Section 235 of the Act was initiated pursuant to a complaint filed by respondent No.1 subsequent to the order of the Company Judge sanctioning the scheme. | 1 | 8,893 | 1,040 | ### Instruction:
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to promote any interest adverse to that of the latter comprising the same class whom they purport to represent and the scheme as a whole is just, fair and reasonable from the point of view of a prudent and reasonable businessman taking a commercial decision. 36. Thus, the first question is as to whether the appellant and SGL had disclosed sufficient information to the shareholders so as to enable them to arrive at an informed decision? The proviso to Section 391 (2) requires a company to "disclose pendency of any investigation in relation to the company under Sections 235 to 351, and the like". Though it is true that inspection under Section 209A of the Act, strictly speaking, may not be in the nature of an investigation, but at the same time it cannot be construed as an innocuous exercise for record, in as much as if anything objectionable or fraudulent in the conduct of the affairs of the company is detected during the course of inspection, it may lay the foundation for the purpose of investigations under Sections 235 and 237 of the Act, as is the case here. Therefore, existence of proceedings under Section 209A must be disclosed in terms of the proviso to Section 391(2). In any event, we are of the opinion that since the said issue is a question of fact, based on appreciation of evidence, and both the Courts below have held that the information supplied was sufficient, particularly in light of the order passed by the Single Judge on 18th March, 2006, we are not inclined to disturb the said concurrent finding of the Courts below, particularly when it is not shown that the said finding suffers from any demonstrable perversity. (See: Firm Sriniwas Ram Kumar Vs. Mahabir Prasad & Ors. (1951 SCR 277 ) and Ganga Bishnu Swaika Vs. Calcutta Pinjrapole Society (AIR 1968 SC 615 .) 37. The next issue that arises for our determination is whether the Division Bench was correct in holding that the affidavit filed by the Official Liquidator was vitiated on account of non-disclosure of all material facts. From a bare perusal of the affidavit dated 10th February, 2006, it is manifest, ex facie, that before filing the affidavit, the said official had not examined and applied its mind to the findings contained in the inspection report under Section 209A of the Act. While it is true that it was not within the domain of the Official Liquidator to determine the relvency or otherwise of the said report, yet he was obliged to incorporate in his affidavit the contents of the inspection report. We are convinced that the official liquidator had failed to discharge the statutory burden placed on him under the second proviso to Section 394(1) of the Act. 38. An Official Liquidator acts as a watchdog of the Company Court, reposed with the duty of satisfying the Court that the affairs of the company, being dissolved, have not been carried out in a manner prejudicial to the interests of its members and the interest of the public at large. In essence, the Official Liquidator assists the Court in appreciating the other side of the picture before it, and it is only upon consideration of the amalgamation scheme, together with the report of the Official Liquidator, that the Court can arrive at a final conclusion that the scheme is in keeping with the mandate of the Act and that of public interest in general. It, therefore, follows that for examining the questions as to why the transferor-company came into existence; for what purpose it was set up; who were its promoters; who were controlling it; what object was sought to be achieved by dissolving it and merging with another company, by way of a scheme of amalgamation, the report of an official liquidator is of seminal importance and in fact facilitates the Company Judge to record its satisfaction as to whether or not the affairs of the transferor company had been carried on in a manner prejudicial to the interest of the minority and to the public interest. 39. In the present case, we are unable to appreciate why the Official Liquidator, who was aware of the inspection report dated 17th February, 2006 under Section 209A containing adverse comments on the affairs of both the companies, relied only on the report of the auditors, which admittedly was not even verified. We can only lament the conduct of the official liquidator. 40. Having held that the Official Liquidator had failed to discharge the duty cast on him in terms of the second proviso to Section 394(1) of the Act, the next issue that requires consideration is whether sanction of a scheme of amalgamation can be held up merely because the conduct of an Official Liquidator is found to be blameworthy? We are of the view that it will neither be proper nor feasible to lay down absolute parameters in this behalf. The effect of misdemeanour on the part of the official liquidator on the scheme as such would depend on the facts obtaining in each case and ordinarily the Company Judge should be the final arbiter on that issue. In the instant case, indubitably, the findings in the report under Section 209A of the Act were placed before the Company Judge, and he had considered the same while sanctioning the scheme of amalgamation. Therefore, in the facts and circumstances of the present case, the Company Judge had, before him, all material facts which had a direct bearing on the sanction of the amalgamation scheme, despite the aforestated lapse on the part of the Official Liquidator. In this view of the matter, we are of the considered opinion that the Company Judge, having examined all material facts, was justified in sanctioning the scheme of amalgamation, particularly when the current investigation under Section 235 of the Act was initiated pursuant to a complaint filed by respondent No.1 subsequent to the order of the Company Judge sanctioning the scheme. 41.
### Response:
1
### Explanation:
Thus, the first question is as to whether the appellant and SGL had disclosed sufficient information to the shareholders so as to enable them to arrive at an informed decision?The proviso to Section 391 (2) requires a company to "disclose pendency of any investigation in relation to the company under Sections 235 to 351, and the like". Though it is true that inspection under Section 209A of the Act, strictly speaking, may not be in the nature of an investigation, but at the same time it cannot be construed as an innocuous exercise for record, in as much as if anything objectionable or fraudulent in the conduct of the affairs of the company is detected during the course of inspection, it may lay the foundation for the purpose of investigations under Sections 235 and 237 of the Act, as is the case here. Therefore, existence of proceedings under Section 209A must be disclosed in terms of the proviso to Section 391(2). In any event, we are of the opinion that since the said issue is a question of fact, based on appreciation of evidence, and both the Courts below have held that the information supplied was sufficient, particularly in light of the order passed by the Single Judge on 18th March, 2006, we are not inclined to disturb the said concurrent finding of the Courts below, particularly when it is not shown that the said finding suffers from any demonstrable perversity. (See: Firm Sriniwas Ram Kumar Vs. Mahabir Prasad & Ors. (1951 SCR 277 ) and Ganga Bishnu Swaika Vs. Calcutta Pinjrapole Society (AIR 1968 SC 615 .)e next issue that arises for our determination is whether the Division Bench was correct in holding that the affidavit filed by the Official Liquidator was vitiated on account of non-disclosure of all material facts.From a bare perusal of the affidavit dated 10th February, 2006, it is manifest, ex facie, that before filing the affidavit, the said official had not examined and applied its mind to the findings contained in the inspection report under Section 209A of the Act. While it is true that it was not within the domain of the Official Liquidator to determine the relvency or otherwise of the said report, yet he was obliged to incorporate in his affidavit the contents of the inspection report. We are convinced that the official liquidator had failed to discharge the statutory burden placed on him under the second proviso to Section 394(1) of the Act.An Official Liquidator acts as a watchdog of the Company Court, reposed with the duty of satisfying the Court that the affairs of the company, being dissolved, have not been carried out in a manner prejudicial to the interests of its members and the interest of the public at large. In essence, the Official Liquidator assists the Court in appreciating the other side of the picture before it, and it is only upon consideration of the amalgamation scheme, together with the report of the Official Liquidator, that the Court can arrive at a final conclusion that the scheme is in keeping with the mandate of the Act and that of public interest in general. It, therefore, follows that for examining the questions as to why the transferor-company came into existence; for what purpose it was set up; who were its promoters; who were controlling it; what object was sought to be achieved by dissolving it and merging with another company, by way of a scheme of amalgamation, the report of an official liquidator is of seminal importance and in fact facilitates the Company Judge to record its satisfaction as to whether or not the affairs of the transferor company had been carried on in a manner prejudicial to the interest of the minority and to the public interest.In the present case, we are unable to appreciate why the Official Liquidator, who was aware of the inspection report dated 17th February, 2006 under Section 209A containing adverse comments on the affairs of both the companies, relied only on the report of the auditors, which admittedly was not even verified. We can only lament the conduct of the official liquidator.Having held that the Official Liquidator had failed to discharge the duty cast on him in terms of the second proviso to Section 394(1) of the Act, the next issue that requires consideration is whether sanction of a scheme of amalgamation can be held up merely because the conduct of an Official Liquidator is found to be blameworthy? We are of the view that it will neither be proper nor feasible to lay down absolute parameters in this behalf. The effect of misdemeanour on the part of the official liquidator on the scheme as such would depend on the facts obtaining in each case and ordinarily the Company Judge should be the final arbiter on that issue. In the instant case, indubitably, the findings in the report under Section 209A of the Act were placed before the Company Judge, and he had considered the same while sanctioning the scheme of amalgamation. Therefore, in the facts and circumstances of the present case, the Company Judge had, before him, all material facts which had a direct bearing on the sanction of the amalgamation scheme, despite the aforestated lapse on the part of the Official Liquidator. In this view of the matter, we are of the considered opinion that the Company Judge, having examined all material facts, was justified in sanctioning the scheme of amalgamation, particularly when the current investigation under Section 235 of the Act was initiated pursuant to a complaint filed by respondent No.1 subsequent to the order of the Company Judge sanctioning the scheme.
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Janki Ram Bahadur Ram Vs. Commissioner Of Income Tax, Calcutta | a venture in the nature of trade. These are cases in which the commodity purchased and sold is not ordinarily commercial, and the manner of dealing with the commodity does not stamp the transaction as a trading venture. 11. It may be emphasized from an analysis of these cases that a profit motive in entering a transaction is not decisive, for, an accretion to capital does not become taxable income, merely because an asset was acquired in the expectation that it may be sold at profit. 12. Purchase of the property by the appellant was an isolated transaction not related to the business of the appellant. The Tribunal and the High Court were, in our judgment, in error in holding that the right of the Company was not sold to the appellant in the lands in Sch. II and Sch. III properties. The land in Sch. II was leasehold, and on it was constructed a warehouse and the land in Sch. III was held as a licensee and two warehouses were standing thereon. The conveyance by the Company to the appellant is not on the record, but the recitals in the deed dated September 30, 1943 definitely indicate that the rights of the Company without any reservation was purchased by the appellant, and the appellant sold its entire rights in the properties in Schs. I, II and III without any reservation. It is true that the appellant had put the factory in a working condition, but had not organized a jute pressing business, had not obtained a licence for working the factory, had not attempted to secure orders for pressing jute, and had not employed labourers. The appellants claim that it was not so done because the appellant could not secure labourers has not been accepted. But that is not a decisive circumstance. The factory was in the occupation of the lessee Ramnath Bajoria and possession was obtained after August 10, 1943. But before the 10th of August an agreement of sale was executed by the appellant in favour of Ranada Prasad Saha. In the light of the sequence of events, the inference that the appellant had no intention to commence doing jute pressing business does not necessarily follow. Even if that inference be regarded as binding upon the Court it cannot be presumed that the sole intention of the appellant was to start a venture in the nature of trade. Barring the expectation of profit and realization of profit by sale of the property there is no evidence bearing on the intention with which the property was purchased. 13. In the deed of conveyance dated September 30, 1943 there is a reference to delivery. of "joists, girders, fabricated steel C.I. roofs, bolts, nuts, hooks and ceiling planks, being portions of the materials of the godowns and structures" standing on the land described in the third schedule. It was submitted that after purchasing the factory and the appurtenant premises the appellant demolished "certain godowns" in Sch. III land and sold the material as scrap. This it was claimed, was if not part of the business - a venture similar to the normal business of the appellant. But there is no evidence on the record as to how many warehouses stood originally on Sch. III land. The sale deed dated September 30, 1943 clearly states that there were two warehouses on steel frames on the, land held as licensee by the Company and possession of these was given to the purchaser Ranada Prasad Saha. Besides these warehouses, there were three warehouses on the land described in Sch. I and one warehouse on the land described in Sch. II. It is not claimed that these warehouses were insufficient for carrying on the business of jute pressing; nor is there any, evidence that the warehouse or warehouses which were demolished were in a serviceable condition. The only fact which may be taken to be established is that a warehouse or warehouses were demolished by the appellant and the materials were sold as part of the property sold under the deed dated September 30, 1943. From this circumstance, an inference that the entire property was purchased with intent to demolish, and dispose of as scrap cannot be raised. 14. Granting that the appellant made a profitable bargain when he purchased the property, and granting further that the appellant had when he purchased it a desire to sell the property, if a favourable offer was forthcoming, these could not without other circumstances justify an inference that the appellant intended by purchasing the property to start a venture in the nature of rade. Absence of advertisement inviting offers for purchasing the property, and absence of brokers in the negotiations for sale between the appellant and Ranada Prasad Saha, are circumstances which lead to no positive inference. There is nothing to show that the appellant desired to convert the property to some other use. No workers were employed for entering into a transaction of sale. It appears that Ranada Prasad Saha on coming to learn that the factory was for sale approached the Company after the sale deed was executed in favour of the appellant and he was informed that it had already been sold to the appellant. Thereafter Saha contacted the appellant and agreed to purchase the property. The property purchased was not such that an inference that a venture in the nature of trade must have been intended by the appellant in respect thereof may be raised. A person purchasing a jute press may intend to start his own business even if he is not already in that business, or he may let it out on. favourable terms. The property purchased by the appellant was capable of being let out and it had in fact been let out by the Company before the date of sale in favour of the appellant. It was capable of fetching annual income, and there is no evidence that at the material time it could not be reasonably let out. | 1[ds]12. Purchase of the property by the appellant was an isolated transaction not related to the business of the appellant. The Tribunal and the High Court were, in our judgment, in error in holding that the right of the Company was not sold to the appellant in the lands in Sch. II and Sch. III properties. The land in Sch. II was leasehold, and on it was constructed a warehouse and the land in Sch. III was held as a licensee and two warehouses were standing thereon. The conveyance by the Company to the appellant is not on the record, but the recitals in the deed dated September 30, 1943 definitely indicate that the rights of the Company without any reservation was purchased by the appellant, and the appellant sold its entire rights in the properties in Schs. I, II and III without any reservation. It is true that the appellant had put the factory in a working condition, but had not organized a jute pressing business, had not obtained a licence for working the factory, had not attempted to secure orders for pressing jute, and had not employed labourers. The appellants claim that it was not so done because the appellant could not secure labourers has not been accepted. But that is not a decisive circumstance. The factory was in the occupation of the lessee Ramnath Bajoria and possession was obtained after August 10, 1943. But before the 10th of August an agreement of sale was executed by the appellant in favour of Ranada Prasad Saha. In the light of the sequence of events, the inference that the appellant had no intention to commence doing jute pressing business does not necessarily follow. Even if that inference be regarded as binding upon the Court it cannot be presumed that the sole intention of the appellant was to start a venture in the nature of trade. Barring the expectation of profit and realization of profit by sale of the property there is no evidence bearing on the intention with which the property was purchased13. In the deed of conveyance dated September 30, 1943 there is a reference to delivery. of "joists, girders, fabricated steel C.I. roofs, bolts, nuts, hooks and ceiling planks, being portions of the materials of the godowns and structures" standing on the land described in the third schedule. It was submitted that after purchasing the factory and the appurtenant premises the appellant demolished "certain godowns" in Sch. III land and sold the material as scrap. This it was claimed, was if not part of the business - a venture similar to the normal business of the appellant. But there is no evidence on the record as to how many warehouses stood originally on Sch. III land. The sale deed dated September 30, 1943 clearly states that there were two warehouses on steel frames on the, land held as licensee by the Company and possession of these was given to the purchaser Ranada Prasad Saha. Besides these warehouses, there were three warehouses on the land described in Sch. I and one warehouse on the land described in Sch. II. It is not claimed that these warehouses were insufficient for carrying on the business of jute pressing; nor is there any, evidence that the warehouse or warehouses which were demolished were in a serviceable condition. The only fact which may be taken to be established is that a warehouse or warehouses were demolished by the appellant and the materials were sold as part of the property sold under the deed dated September 30, 1943. From this circumstance, an inference that the entire property was purchased with intent to demolish, and dispose of as scrap cannot be raised14. Granting that the appellant made a profitable bargain when he purchased the property, and granting further that the appellant had when he purchased it a desire to sell the property, if a favourable offer was forthcoming, these could not without other circumstances justify an inference that the appellant intended by purchasing the property to start a venture in the nature of rade. Absence of advertisement inviting offers for purchasing the property, and absence of brokers in the negotiations for sale between the appellant and Ranada Prasad Saha, are circumstances which lead to no positive inference. There is nothing to show that the appellant desired to convert the property to some other use. No workers were employed for entering into a transaction of sale. It appears that Ranada Prasad Saha on coming to learn that the factory was for sale approached the Company after the sale deed was executed in favour of the appellant and he was informed that it had already been sold to the appellant. Thereafter Saha contacted the appellant and agreed to purchase the property. The property purchased was not such that an inference that a venture in the nature of trade must have been intended by the appellant in respect thereof may be raised. A person purchasing a jute press may intend to start his own business even if he is not already in that business, or he may let it out on. favourable terms. The property purchased by the appellant was capable of being let out and it had in fact been let out by the Company before the date of sale in favour of the appellant. It was capable of fetching annual income, and there is no evidence that at the material time it could not be reasonably let out. | 1 | 3,129 | 1,002 | ### 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:
a venture in the nature of trade. These are cases in which the commodity purchased and sold is not ordinarily commercial, and the manner of dealing with the commodity does not stamp the transaction as a trading venture. 11. It may be emphasized from an analysis of these cases that a profit motive in entering a transaction is not decisive, for, an accretion to capital does not become taxable income, merely because an asset was acquired in the expectation that it may be sold at profit. 12. Purchase of the property by the appellant was an isolated transaction not related to the business of the appellant. The Tribunal and the High Court were, in our judgment, in error in holding that the right of the Company was not sold to the appellant in the lands in Sch. II and Sch. III properties. The land in Sch. II was leasehold, and on it was constructed a warehouse and the land in Sch. III was held as a licensee and two warehouses were standing thereon. The conveyance by the Company to the appellant is not on the record, but the recitals in the deed dated September 30, 1943 definitely indicate that the rights of the Company without any reservation was purchased by the appellant, and the appellant sold its entire rights in the properties in Schs. I, II and III without any reservation. It is true that the appellant had put the factory in a working condition, but had not organized a jute pressing business, had not obtained a licence for working the factory, had not attempted to secure orders for pressing jute, and had not employed labourers. The appellants claim that it was not so done because the appellant could not secure labourers has not been accepted. But that is not a decisive circumstance. The factory was in the occupation of the lessee Ramnath Bajoria and possession was obtained after August 10, 1943. But before the 10th of August an agreement of sale was executed by the appellant in favour of Ranada Prasad Saha. In the light of the sequence of events, the inference that the appellant had no intention to commence doing jute pressing business does not necessarily follow. Even if that inference be regarded as binding upon the Court it cannot be presumed that the sole intention of the appellant was to start a venture in the nature of trade. Barring the expectation of profit and realization of profit by sale of the property there is no evidence bearing on the intention with which the property was purchased. 13. In the deed of conveyance dated September 30, 1943 there is a reference to delivery. of "joists, girders, fabricated steel C.I. roofs, bolts, nuts, hooks and ceiling planks, being portions of the materials of the godowns and structures" standing on the land described in the third schedule. It was submitted that after purchasing the factory and the appurtenant premises the appellant demolished "certain godowns" in Sch. III land and sold the material as scrap. This it was claimed, was if not part of the business - a venture similar to the normal business of the appellant. But there is no evidence on the record as to how many warehouses stood originally on Sch. III land. The sale deed dated September 30, 1943 clearly states that there were two warehouses on steel frames on the, land held as licensee by the Company and possession of these was given to the purchaser Ranada Prasad Saha. Besides these warehouses, there were three warehouses on the land described in Sch. I and one warehouse on the land described in Sch. II. It is not claimed that these warehouses were insufficient for carrying on the business of jute pressing; nor is there any, evidence that the warehouse or warehouses which were demolished were in a serviceable condition. The only fact which may be taken to be established is that a warehouse or warehouses were demolished by the appellant and the materials were sold as part of the property sold under the deed dated September 30, 1943. From this circumstance, an inference that the entire property was purchased with intent to demolish, and dispose of as scrap cannot be raised. 14. Granting that the appellant made a profitable bargain when he purchased the property, and granting further that the appellant had when he purchased it a desire to sell the property, if a favourable offer was forthcoming, these could not without other circumstances justify an inference that the appellant intended by purchasing the property to start a venture in the nature of rade. Absence of advertisement inviting offers for purchasing the property, and absence of brokers in the negotiations for sale between the appellant and Ranada Prasad Saha, are circumstances which lead to no positive inference. There is nothing to show that the appellant desired to convert the property to some other use. No workers were employed for entering into a transaction of sale. It appears that Ranada Prasad Saha on coming to learn that the factory was for sale approached the Company after the sale deed was executed in favour of the appellant and he was informed that it had already been sold to the appellant. Thereafter Saha contacted the appellant and agreed to purchase the property. The property purchased was not such that an inference that a venture in the nature of trade must have been intended by the appellant in respect thereof may be raised. A person purchasing a jute press may intend to start his own business even if he is not already in that business, or he may let it out on. favourable terms. The property purchased by the appellant was capable of being let out and it had in fact been let out by the Company before the date of sale in favour of the appellant. It was capable of fetching annual income, and there is no evidence that at the material time it could not be reasonably let out.
### Response:
1
### Explanation:
12. Purchase of the property by the appellant was an isolated transaction not related to the business of the appellant. The Tribunal and the High Court were, in our judgment, in error in holding that the right of the Company was not sold to the appellant in the lands in Sch. II and Sch. III properties. The land in Sch. II was leasehold, and on it was constructed a warehouse and the land in Sch. III was held as a licensee and two warehouses were standing thereon. The conveyance by the Company to the appellant is not on the record, but the recitals in the deed dated September 30, 1943 definitely indicate that the rights of the Company without any reservation was purchased by the appellant, and the appellant sold its entire rights in the properties in Schs. I, II and III without any reservation. It is true that the appellant had put the factory in a working condition, but had not organized a jute pressing business, had not obtained a licence for working the factory, had not attempted to secure orders for pressing jute, and had not employed labourers. The appellants claim that it was not so done because the appellant could not secure labourers has not been accepted. But that is not a decisive circumstance. The factory was in the occupation of the lessee Ramnath Bajoria and possession was obtained after August 10, 1943. But before the 10th of August an agreement of sale was executed by the appellant in favour of Ranada Prasad Saha. In the light of the sequence of events, the inference that the appellant had no intention to commence doing jute pressing business does not necessarily follow. Even if that inference be regarded as binding upon the Court it cannot be presumed that the sole intention of the appellant was to start a venture in the nature of trade. Barring the expectation of profit and realization of profit by sale of the property there is no evidence bearing on the intention with which the property was purchased13. In the deed of conveyance dated September 30, 1943 there is a reference to delivery. of "joists, girders, fabricated steel C.I. roofs, bolts, nuts, hooks and ceiling planks, being portions of the materials of the godowns and structures" standing on the land described in the third schedule. It was submitted that after purchasing the factory and the appurtenant premises the appellant demolished "certain godowns" in Sch. III land and sold the material as scrap. This it was claimed, was if not part of the business - a venture similar to the normal business of the appellant. But there is no evidence on the record as to how many warehouses stood originally on Sch. III land. The sale deed dated September 30, 1943 clearly states that there were two warehouses on steel frames on the, land held as licensee by the Company and possession of these was given to the purchaser Ranada Prasad Saha. Besides these warehouses, there were three warehouses on the land described in Sch. I and one warehouse on the land described in Sch. II. It is not claimed that these warehouses were insufficient for carrying on the business of jute pressing; nor is there any, evidence that the warehouse or warehouses which were demolished were in a serviceable condition. The only fact which may be taken to be established is that a warehouse or warehouses were demolished by the appellant and the materials were sold as part of the property sold under the deed dated September 30, 1943. From this circumstance, an inference that the entire property was purchased with intent to demolish, and dispose of as scrap cannot be raised14. Granting that the appellant made a profitable bargain when he purchased the property, and granting further that the appellant had when he purchased it a desire to sell the property, if a favourable offer was forthcoming, these could not without other circumstances justify an inference that the appellant intended by purchasing the property to start a venture in the nature of rade. Absence of advertisement inviting offers for purchasing the property, and absence of brokers in the negotiations for sale between the appellant and Ranada Prasad Saha, are circumstances which lead to no positive inference. There is nothing to show that the appellant desired to convert the property to some other use. No workers were employed for entering into a transaction of sale. It appears that Ranada Prasad Saha on coming to learn that the factory was for sale approached the Company after the sale deed was executed in favour of the appellant and he was informed that it had already been sold to the appellant. Thereafter Saha contacted the appellant and agreed to purchase the property. The property purchased was not such that an inference that a venture in the nature of trade must have been intended by the appellant in respect thereof may be raised. A person purchasing a jute press may intend to start his own business even if he is not already in that business, or he may let it out on. favourable terms. The property purchased by the appellant was capable of being let out and it had in fact been let out by the Company before the date of sale in favour of the appellant. It was capable of fetching annual income, and there is no evidence that at the material time it could not be reasonably let out.
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Giani Bakshish Singh Vs. Govt. Of India & Ors | this country while residing in another State. We have no doubt that he can be detained by the former State. The same analogy applies to this case. International Law does not seem to deal, with the case of nationals of one country acting in that country to the prejudice of the security and integrity of another country and whether anything could be done about them. To allow a person like the appellant to go back to England at his request in spite of the certainty that while in England he will continue to Indulge in activities prejudicial to the security and integrity of this country would be like the action of some foolish people who take a rat caught in a trap in their house to the road and release it. 5. It was urged that only where the grounds of detention were based on facts which can be held to amount to an offence either in India or in a foreign country for which he could be punished could he be detained. We are not able to appreciate the import of this argument. As is well known, preventive detention is not a punishment for an offence. To accept the argument on behalf of the appellant would make the grounds given in Section 3 (1) of the Maintenance ok Internal Security Act meaningless. Take for instance action prejudicial to the relations of India with foreign powers. As far as we are aware, there is no law enabling anybody in India to be punished for acting in a manner prejudicial to the relations of India with foreign powers. It cannot however be argued that detention on that ground is not permissible. Take again the case of activities prejudicial to the Defence of India. For the present, of course, we have the Defence of India Act still in force. Let us assume a period when it was not in force, does it mean that a person acting in a manner prejudicial to the defence of India cannot be detained even though there is no law dealing with that question. That is why the Preventive Detention Act, 1950. which was passed when there was no war and no emergency, provided for detention on the same grounds as in Maintenance of Internal Security Act. In the absence of a law dealing with that question, naturally enough the courts will have to decide whether the activity for which a person is detained is one prejudicial to the defence of India; so also an activity prejudicial to the security of India. Defence of a country or the security of a country is not a static concept. The days are gone by when one had to worry about the security of a country or its defence only during war time. A country has to be in a perpetual state of preparedness. Eternal vigilance is the price of liberty. So it is that the founding fathers with considerable wisdom and foresight provided for laws for preventive detention and the limitations thereon mentioned in Article 22 of the Constitution Preventive detention is, of course, an anathema to champions of individual liberty But times being what they are, the Constitution makers in their wisdom have provided for it. It is not necessary to give further examples to show that prejudicial activities contemplated under Section 3 (1) of the Maintenance of Internal Security Act are not necessarily activities prohibited or made punishable by a specific provision of law. The cases relied upon to support the contrary proposition should be confined to the facts of those cases. 6. The only other question that remains to be dealt with is the one that arises out of the statement of the Chief Minister of Punjab in the Legislative Assembly on 7-3-1973. The argument is that the Chief Ministers reply shows that the appellant has been detained, and is continued to be detained, not for the reasons which were intimated to him in the form of grounds of detention but really for the reasons mentioned in the Assembly and the detention is therefore, bad It is pertinent to remember in this context firstly that the order for the detention of the appellant was made by the District Magistrate of Amritsar. He could not have known of the activities of the appellant which the Chief Minister mentioned in the Assembly. Secondly, the approval by the Government of Punjab of the appellants detention was made on 16-1-1973. There is nothing to show that on that day the Government of Punjab knew of the matters which the Chief Minister brought up in the Legislative Assembly on 7-3-1973, and the detention was approved by the Government only for those reasons. We are not prepared to assume, as was urged on behalf of the appellant, that the three matters mentioned in the Chief Ministers speech should have come to the notice of the Indian High Commission as soon as they took place and that they should have alerted the Punjab Government at once. There is no warrant for such an assumption. Except that one of the activities is said to be in 1971, we do not even know about the dates of the others. Moreover, the Chief Ministers reply was in answer to the demand of the Akali Dal Party for the appellants release. The grounds of appellants detention must have been known to them. The Chief Minister should, therefore, have been giving them additional information which came to his knowledge subsequently. We are not, therefore, prepared to assume that the grounds for approval of the appellants detention were not the same ground on which he was detained but some others, and therefore malice in law has been established. 7. Furthermore. by a Presidential order Articles 14, 19 and :22 of the Constitution have been suspended during the subsistence of the Proclamation of Emergency. This contention is based on decisions of this Court interpreting Article 22. They are, therefore, irrelevant in considering a petition under Section 491 Cr. P. C. | 0[ds]It is now settled law that preventive detention is not a punishment for the past activities of a person but is intended to prevent the person detained from indulging in future in activities which may produce the results mentioned in Section 3 of the Maintenance of Internal Security Act. It is also well settled that the Court will not go into the truth or otherwise of the facts alleged as grounds of detention. The sufficiency of the grounds for detention is not also a matter which the court will go into. There can also be no doubt that the appellants activities detailed in grounds (a) to (c) bring his case squarely within the ambit of subclauses (i) and (ii) of cl. (a) of sub-section (1) of Section 3 of the Maintenance of Internal Security ActWe are not impressed with this argument. The power of a State to deal with foreigners committing offences inside its territory is not in dispute. The power of a State to detain even a foreigner who is found inside its territory in order to prevent him from indulging in prejudicial activities inside its territory cannot also be questionedWe are unable to accept this contention either. Clause (a) and clause (b) deal with two different kinds of powers. Under clause (a) the power is given to the State to detain any person, including a foreigner for any of the purposes mentioned in that clause. Under clause (b) power is given to detain a foreigner either for regulating his continued presence in India or for making arrangements for his expulsion from India. It is within the competence of the detaining authority to exercise the power conferred on it under clause (a) or clause (b). In this case the order of detention is made under clause (a) and therefore clause (b) does not come into picture at all. We are not able to agree with the contention that clause (b) would be beyond the legislative competence of Parliament unless it is interpreted in the manner in which Mr. Garg wants it to be interpreted. It is well established that the various legislative entries should be interpreted in a broad manner and if any legislation could be brought within the ambit of any one or other of the legislative entries the validity of that legislation cannot be questioned. Entry 10, List I, Schedule VII: Foreign Affairs; all matters which bring the Union into relation with any foreign country, would certainly cover clause (b). We may also refer tothe Foreigners Act, 1946 which confers much more stringent powers in relation to a foreigner than clause (b). It has not been argued that those powers are not valid or that the Foreigners Act is not a valid piece of legislation. We may legitimately presume that the laws of various countries of the world confer similar powers on their respective Governments in relation to foreignersIn the face of the very clear provisions of Section 3 (l) (a) we have no doubt on that point Indeed the Parliament seems to have specifically contemplated the contingency and provided for it. It is not only in a case where a foreigner wants to continue in India that the power is available but even where in order to avoid preventive detention he offers to go out of the country. It was urged that to place such an interpretation on this provision would be contrary to Article 51 of the Constitution, that if at all possible the section should be so interpreted as not to conflict with the provisions of Article 51. We see no such contradiction if it is interpreted as we have doneWe are not able to appreciate the import of this argument. As is well known, preventive detention is not a punishment for an offence. To accept the argument on behalf of the appellant would make the grounds given in Section 3 (1) of the Maintenance ok Internal Security Act meaningless. Take for instance action prejudicial to the relations of India with foreign powers. As far as we are aware, there is no law enabling anybody in India to be punished for acting in a manner prejudicial to the relations of India with foreign powers. It cannot however be argued that detention on that ground is not permissible. Take again the case of activities prejudicial to the Defence of India. For the present, of course, we have the Defence of India Act still in force. Let us assume a period when it was not in force, does it mean that a person acting in a manner prejudicial to the defence of India cannot be detained even though there is no law dealing with that question. That is whythe Preventive Detention Act, 1950. which was passed when there was no war and no emergency, provided for detention on the same grounds as in Maintenance of Internal Security Act. In the absence of a law dealing with that question, naturally enough the courts will have to decide whether the activity for which a person is detained is one prejudicial to the defence of India; so also an activity prejudicial to the security of India. Defence of a country or the security of a country is not a static concept. The days are gone by when one had to worry about the security of a country or its defence only during war time. A country has to be in a perpetual state of preparedness. Eternal vigilance is the price of liberty. So it is that the founding fathers with considerable wisdom and foresight provided for laws for preventive detention and the limitations thereon mentioned in Article 22 of the Constitution Preventive detention is, of course, an anathema to champions of individual liberty But times being what they are, the Constitution makers in their wisdom have provided for it. It is not necessary to give further examples to show that prejudicial activities contemplated under Section 3 (1) of the Maintenance of Internal Security Act are not necessarily activities prohibited or made punishable by a specific provision of law. The cases relied upon to support the contrary proposition should be confined to the facts of those casesIt is pertinent to remember in this context firstly that the order for the detention of the appellant was made by the District Magistrate of Amritsar. He could not have known of the activities of the appellant which the Chief Minister mentioned in the Assembly. Secondly, the approval by the Government of Punjab of the appellants detention was made on 16-1-1973. There is nothing to show that on that day the Government of Punjab knew of the matters which the Chief Minister brought up in the Legislative Assembly on 7-3-1973, and the detention was approved by the Government only for those reasons. We are not prepared to assume, as was urged on behalf of the appellant, that the three matters mentioned in the Chief Ministers speech should have come to the notice of the Indian High Commission as soon as they took place and that they should have alerted the Punjab Government at once. There is no warrant for such an assumption. Except that one of the activities is said to be in 1971, we do not even know about the dates of the others. Moreover, the Chief Ministers reply was in answer to the demand of the Akali Dal Party for the appellants release. The grounds of appellants detention must have been known to them. The Chief Minister should, therefore, have been giving them additional information which came to his knowledge subsequently. We are not, therefore, prepared to assume that the grounds for approval of the appellants detention were not the same ground on which he was detained but some others, and therefore malice in law has been established7. Furthermore. by a Presidential order Articles 14, 19 and :22 of the Constitution have been suspended during the subsistence of the Proclamation of Emergency. This contention is based on decisions of this Court interpreting Article 22. They are, therefore, irrelevant in considering a petition under Section 491 Cr. P. CThe argument is that the Chief Ministers reply shows that the appellant has been detained, and is continued to be detained, not for the reasons which were intimated to him in the form of grounds of detention but really for the reasons mentioned in the Assembly and the detention is therefore, badIt is pertinent to remember in this context firstly that the order for the detention of the appellant was made by the District Magistrate of Amritsar. He could not have known of the activities of the appellant which the Chief Minister mentioned in the Assembly. Secondly, the approval by the Government of Punjab of the appellants detention was made on. There is nothing to show that on that day the Government of Punjab knew of the matters which the Chief Minister brought up in the Legislative Assembly on, and the detention was approved by the Government only for those reasons. We are not prepared to assume, as was urged on behalf of the appellant, that the three matters mentioned in the Chief Ministers speech should have come to the notice of the Indian High Commission as soon as they took place and that they should have alerted the Punjab Government at once. There is no warrant for such an assumption. Except that one of the activities is said to be in 1971, we do not even know about the dates of the others. Moreover, the Chief Ministers reply was in answer to the demand of the Akali Dal Party for the appellants release. The grounds of appellants detention must have been known to them. The Chief Minister should, therefore, have been giving them additional information which came to his knowledge subsequently. We are not, therefore, prepared to assume that the grounds for approval of the appellants detention were not the same ground on which he was detained but some others, and therefore malice in law has been established7. Furthermore. by a Presidential order Articles 14, 19 and :22 of the Constitution have been suspended during the subsistence of the Proclamation of Emergency. This contention is based on decisions of this Court interpreting Article 22. They are, therefore, irrelevant in considering a petition under Section 491 Cr. P. | 0 | 4,313 | 1,882 | ### Instruction:
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this country while residing in another State. We have no doubt that he can be detained by the former State. The same analogy applies to this case. International Law does not seem to deal, with the case of nationals of one country acting in that country to the prejudice of the security and integrity of another country and whether anything could be done about them. To allow a person like the appellant to go back to England at his request in spite of the certainty that while in England he will continue to Indulge in activities prejudicial to the security and integrity of this country would be like the action of some foolish people who take a rat caught in a trap in their house to the road and release it. 5. It was urged that only where the grounds of detention were based on facts which can be held to amount to an offence either in India or in a foreign country for which he could be punished could he be detained. We are not able to appreciate the import of this argument. As is well known, preventive detention is not a punishment for an offence. To accept the argument on behalf of the appellant would make the grounds given in Section 3 (1) of the Maintenance ok Internal Security Act meaningless. Take for instance action prejudicial to the relations of India with foreign powers. As far as we are aware, there is no law enabling anybody in India to be punished for acting in a manner prejudicial to the relations of India with foreign powers. It cannot however be argued that detention on that ground is not permissible. Take again the case of activities prejudicial to the Defence of India. For the present, of course, we have the Defence of India Act still in force. Let us assume a period when it was not in force, does it mean that a person acting in a manner prejudicial to the defence of India cannot be detained even though there is no law dealing with that question. That is why the Preventive Detention Act, 1950. which was passed when there was no war and no emergency, provided for detention on the same grounds as in Maintenance of Internal Security Act. In the absence of a law dealing with that question, naturally enough the courts will have to decide whether the activity for which a person is detained is one prejudicial to the defence of India; so also an activity prejudicial to the security of India. Defence of a country or the security of a country is not a static concept. The days are gone by when one had to worry about the security of a country or its defence only during war time. A country has to be in a perpetual state of preparedness. Eternal vigilance is the price of liberty. So it is that the founding fathers with considerable wisdom and foresight provided for laws for preventive detention and the limitations thereon mentioned in Article 22 of the Constitution Preventive detention is, of course, an anathema to champions of individual liberty But times being what they are, the Constitution makers in their wisdom have provided for it. It is not necessary to give further examples to show that prejudicial activities contemplated under Section 3 (1) of the Maintenance of Internal Security Act are not necessarily activities prohibited or made punishable by a specific provision of law. The cases relied upon to support the contrary proposition should be confined to the facts of those cases. 6. The only other question that remains to be dealt with is the one that arises out of the statement of the Chief Minister of Punjab in the Legislative Assembly on 7-3-1973. The argument is that the Chief Ministers reply shows that the appellant has been detained, and is continued to be detained, not for the reasons which were intimated to him in the form of grounds of detention but really for the reasons mentioned in the Assembly and the detention is therefore, bad It is pertinent to remember in this context firstly that the order for the detention of the appellant was made by the District Magistrate of Amritsar. He could not have known of the activities of the appellant which the Chief Minister mentioned in the Assembly. Secondly, the approval by the Government of Punjab of the appellants detention was made on 16-1-1973. There is nothing to show that on that day the Government of Punjab knew of the matters which the Chief Minister brought up in the Legislative Assembly on 7-3-1973, and the detention was approved by the Government only for those reasons. We are not prepared to assume, as was urged on behalf of the appellant, that the three matters mentioned in the Chief Ministers speech should have come to the notice of the Indian High Commission as soon as they took place and that they should have alerted the Punjab Government at once. There is no warrant for such an assumption. Except that one of the activities is said to be in 1971, we do not even know about the dates of the others. Moreover, the Chief Ministers reply was in answer to the demand of the Akali Dal Party for the appellants release. The grounds of appellants detention must have been known to them. The Chief Minister should, therefore, have been giving them additional information which came to his knowledge subsequently. We are not, therefore, prepared to assume that the grounds for approval of the appellants detention were not the same ground on which he was detained but some others, and therefore malice in law has been established. 7. Furthermore. by a Presidential order Articles 14, 19 and :22 of the Constitution have been suspended during the subsistence of the Proclamation of Emergency. This contention is based on decisions of this Court interpreting Article 22. They are, therefore, irrelevant in considering a petition under Section 491 Cr. P. C.
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Take again the case of activities prejudicial to the Defence of India. For the present, of course, we have the Defence of India Act still in force. Let us assume a period when it was not in force, does it mean that a person acting in a manner prejudicial to the defence of India cannot be detained even though there is no law dealing with that question. That is whythe Preventive Detention Act, 1950. which was passed when there was no war and no emergency, provided for detention on the same grounds as in Maintenance of Internal Security Act. In the absence of a law dealing with that question, naturally enough the courts will have to decide whether the activity for which a person is detained is one prejudicial to the defence of India; so also an activity prejudicial to the security of India. Defence of a country or the security of a country is not a static concept. The days are gone by when one had to worry about the security of a country or its defence only during war time. A country has to be in a perpetual state of preparedness. Eternal vigilance is the price of liberty. So it is that the founding fathers with considerable wisdom and foresight provided for laws for preventive detention and the limitations thereon mentioned in Article 22 of the Constitution Preventive detention is, of course, an anathema to champions of individual liberty But times being what they are, the Constitution makers in their wisdom have provided for it. It is not necessary to give further examples to show that prejudicial activities contemplated under Section 3 (1) of the Maintenance of Internal Security Act are not necessarily activities prohibited or made punishable by a specific provision of law. The cases relied upon to support the contrary proposition should be confined to the facts of those casesIt is pertinent to remember in this context firstly that the order for the detention of the appellant was made by the District Magistrate of Amritsar. He could not have known of the activities of the appellant which the Chief Minister mentioned in the Assembly. Secondly, the approval by the Government of Punjab of the appellants detention was made on 16-1-1973. There is nothing to show that on that day the Government of Punjab knew of the matters which the Chief Minister brought up in the Legislative Assembly on 7-3-1973, and the detention was approved by the Government only for those reasons. We are not prepared to assume, as was urged on behalf of the appellant, that the three matters mentioned in the Chief Ministers speech should have come to the notice of the Indian High Commission as soon as they took place and that they should have alerted the Punjab Government at once. There is no warrant for such an assumption. Except that one of the activities is said to be in 1971, we do not even know about the dates of the others. Moreover, the Chief Ministers reply was in answer to the demand of the Akali Dal Party for the appellants release. The grounds of appellants detention must have been known to them. The Chief Minister should, therefore, have been giving them additional information which came to his knowledge subsequently. We are not, therefore, prepared to assume that the grounds for approval of the appellants detention were not the same ground on which he was detained but some others, and therefore malice in law has been established7. Furthermore. by a Presidential order Articles 14, 19 and :22 of the Constitution have been suspended during the subsistence of the Proclamation of Emergency. This contention is based on decisions of this Court interpreting Article 22. They are, therefore, irrelevant in considering a petition under Section 491 Cr. P. CThe argument is that the Chief Ministers reply shows that the appellant has been detained, and is continued to be detained, not for the reasons which were intimated to him in the form of grounds of detention but really for the reasons mentioned in the Assembly and the detention is therefore, badIt is pertinent to remember in this context firstly that the order for the detention of the appellant was made by the District Magistrate of Amritsar. He could not have known of the activities of the appellant which the Chief Minister mentioned in the Assembly. Secondly, the approval by the Government of Punjab of the appellants detention was made on. There is nothing to show that on that day the Government of Punjab knew of the matters which the Chief Minister brought up in the Legislative Assembly on, and the detention was approved by the Government only for those reasons. We are not prepared to assume, as was urged on behalf of the appellant, that the three matters mentioned in the Chief Ministers speech should have come to the notice of the Indian High Commission as soon as they took place and that they should have alerted the Punjab Government at once. There is no warrant for such an assumption. Except that one of the activities is said to be in 1971, we do not even know about the dates of the others. Moreover, the Chief Ministers reply was in answer to the demand of the Akali Dal Party for the appellants release. The grounds of appellants detention must have been known to them. The Chief Minister should, therefore, have been giving them additional information which came to his knowledge subsequently. We are not, therefore, prepared to assume that the grounds for approval of the appellants detention were not the same ground on which he was detained but some others, and therefore malice in law has been established7. Furthermore. by a Presidential order Articles 14, 19 and :22 of the Constitution have been suspended during the subsistence of the Proclamation of Emergency. This contention is based on decisions of this Court interpreting Article 22. They are, therefore, irrelevant in considering a petition under Section 491 Cr. P.
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Mahant Sri Srinivas Ramnuj Das, Mahant Of Emar Math, Puri Vs. The Agricultural Income Tax Officer, Puri & Anr | counsel for the appellant ?Having regard to the submissions made by counsel for the appellant the question raised for determination may be formulated thus : Whether ss. 8 and 9 while providing for exemption to charitable or religious trusts discriminate between agricultural income derived from lands held under non-Muslim public trusts and those held under Muslim trusts and accord to the latter a favourable treatment as against the former by confining the exemption in the former case to such income as has been actually spent for public purposes of charitable or religious nature ? In other words is s. 8(1) which confers a limited exemption as compared to s. 9 hit by art. 14 ? It has not been disputed before us that Muslim trusts known as wakf-alal-aulad constitute a distinct class from other types of wakfs but the discrimination complained of is founded upon the plea that s. 9 of the Act covers all Mussalman wakfs and not merely wakfs known as the wakf-alal-aulad and, therefore, it will be necessary to examine the provisions of s. 9 in order to ascertain whether the plea that it covers all Mussalman wakfs is warranted or not. Section 9 in terms says that the exemption thereunder is confined to Muslim trusts " referred to in s. 3 of the Mussalman Wakf Validating Act, 1913, " and the question is what wakfs are referred in s. 3 of the Mussalman Wakf Validating Act, 1913 (hereinafter called " the Validating Act "). The Validating Act, as we shall indicate presently, was enacted only for the purpose of validating wakfs in the nature of wakf-alal-aulad. As has been pointed out by this court in Fazlul Rabbi Pradhan v. State of West Bengal, AIR 1965 SC 1722 , wakfs (which were primarily family settlements) in which the benefits to charity or religion were either illusory or postponed indefinitely while the property so dedicated was being enjoyed from generation to generation by the family of the wakf were regarded as opposed to the rule against perpetuity as contained in the Indian Succession Act and the Transfer of Property Act. The leading decision of the Privy Council in that behalf rendered in Abdul Fata Mohamed Ishak v. Rasamaya Dhur Chowdhri [1895] LR 22 IA 76; ILR 22 Cal 619 (PC), caused considerable dissatisfaction in the Muslim community in India resulting in a representation being made to the Government of India and consequently the Validating Act came to be enacted with the primary object of removing the difficulties created by that decision. The preamble of the Act makes this very clear. Section 3 declares the right of a person professing Mussalman faith to create a wakf (which in all other respects is in accordance with the provisions of Mussalman law) for the maintenance and support wholly or partially of his family, children or descendants and in the case of a Hanafi Mussalman also for his own maintenance and support during the lifetime or for payment of his debts out of the rents of the property dedicated provided that the ultimate benefit is in such cases, expressly or impliedly reserved for the poor or for any other purpose recognised by the Mussalman law as a religious, pious or charitable purpose of a permanent character. Section 4 also declares that no such wakf as is referred to in s. 3 shall be deemed to be invalid merely because of remoteness of benefit to charity. In fact, s. 3 is declaratory of a right of a Muslim to create a valid wakf of the type described therein and the proviso makes it clear that but for the reservation of ultimate benefit to charity that has to be made, such family settlement (private wakfs) would be invalid. It is conceivable that a deed or instrument of wakf may be a composite one partly incorporating a public wakf and partly a private wakf but s. 3 of the Validating Act unquestionably refers to that part of the instrument which incorporates a private wakf--wakf-alal-aulad, the validity of which must depend upon whether in that part of the instrument the ultimate benefit is expressly or impliedly reserved for charitable or religious purposes or not. It is thus clear that s. 3 of the Validating Act refers only to Muslim trusts which are in the nature of wakf-alal-aulad. The exemption in s. 9 of the Act, therefore, clearly applies only to Muslim trusts which are in the nature of wakf- alal-aulad. This is also clear from the marginal note to s. 9 as well as the proviso to the section. If that be so then all other wakfs would squarely fall under s. 8(1) and to all such wakfs the limited exemption contemplated therein would apply. Even if the instrument of wakf is a composite one partly incorporating a public wakf and partly a private wakf that part which deals with public wakf will fall under s. 8(1) and the other part will be covered by s. 9, for, the language of s. 8(1) is wide enough to include such a deed to the extent that it incorporates a public wakf. In other words, Muslim trusts, i.e., wakfs other than wakf-alal-aulad, would be covered by s. 8(1) and to such wakfs the limited exemption contemplated by s. 8(1) would apply. If that be so, the gravamen of complaint that all wakfs (Muslim trusts) other than wakf-alal-aulad are receiving favourable treatment as against non-Muslim public charitable trusts must fall to the groundAs regards Muslim trusts which are in the nature of wakf-alal-aulad, which alone are covered by s. 9, the proviso clearly shows that the share of the beneficiary under such a trust, far from being exempted, is brought to tax and the tax is made realisable from the mutawalli and read with the proviso the main provision really confines the benefit of exemption only to ultimate illusory or remote, public charitable or religious purpose and is thus completely consistent with the object and scheme of the Act.4. | 0[ds]The charging provision is contained in s. 3 which provides that agricultural income-tax at the rate or rates specified in the Schedule shall be charged for each financial year in accordance with and subject to the provisions of this Act on the total agricultural income of the previous year of every person, the proviso, however, states that no agricultural income-tax shall be charged on the agricultural income of the Central Government or any State Government or any local body. Section 5 prescribes limits of taxable income while s. 6 prescribes the method and manner of determining the agricultural income of every assessee. Then come the two material provisions dealing with exemptions, namely, ss. 8 and 9, which have been reproduced above. The other material section which deals with exemption is s. 16 which provides that agricultural income-tax shall not be payable by an assessee in respect of any amount actually spent by him out of his total agricultural income for the benefit of the people of the State or for charitable purposes, but this exemption is subject to the proviso that agricultural income-tax shall be payable on the remainder of the total agricultural income of such assessee at the rate which would have been applicable if such deduction had not been made. It is unnecessary to refer to other provisions as they are not material for our purposes. The scheme of the Act, as disclosed by the aforesaid provisions, is that under the charging provision agricultural income-tax is levied on the total agricultural income of the previous year of every assessee subject to the exemptions which have been provided for under ss. 8, 9 and 16. It is also clear that whereas the exemption in regard to the amount actually spent for charitable purposes under s. 8(1) is in relation to the agricultural income of a public charitable trust, the exemption of similar nature and extent contemplated by s. 16 is in regard to the agricultural income of any assessee who may not be a trustee owning lands under a public charitable trust ; in other words, in either case, the exemption is confined to such part of the agricultural income which is actually spent by the assessee for charitable purposes. The legislative intent of granting such a limited exemption having been thus clearly brought out by ss. 8(1) and 16 of the Act, the question would be whether by enacting s. 9 the legislature really intended to accord or has actually accorded favourable treatment to Muslim trusts in the matter of granting exemption in the manner suggested by counsel for the appellant ?Having regard to the submissions made by counsel for the appellant the question raised for determination may be formulated thus : Whether ss. 8 and 9 while providing for exemption to charitable or religious trusts discriminate between agricultural income derived from lands held under non-Muslim public trusts and those held under Muslim trusts and accord to the latter a favourable treatment as against the former by confining the exemption in the former case to such income as has been actually spent for public purposes of charitable or religious nature ? In other words is s. 8(1) which confers a limited exemption as compared to s. 9 hit by art. 14 ? It has not been disputed before us that Muslim trusts known as wakf-alal-aulad constitute a distinct class from other types of wakfs but the discrimination complained of is founded upon the plea that s. 9 of the Act covers all Mussalman wakfs and not merely wakfs known as the wakf-alal-aulad and, therefore, it will be necessary to examine the provisions of s. 9 in order to ascertain whether the plea that it covers all Mussalman wakfs is warranted or not. Section 9 in terms says that the exemption thereunder is confined to Muslim trusts " referred to in s. 3 ofthe Mussalman Wakf Validating Act, 1913, " and the question is what wakfs are referred in s. 3 ofthe Mussalman Wakf Validating Act, 1913 (hereinafter called " the Validating Act "). The Validating Act, as we shall indicate presently, was enacted only for the purpose of validating wakfs in the nature of wakf-alal-aulad. As has been pointed out by this court in Fazlul Rabbi Pradhan v. State of West Bengal, AIR 1965 SC 1722 , wakfs (which were primarily family settlements) in which the benefits to charity or religion were either illusory or postponed indefinitely while the property so dedicated was being enjoyed from generation to generation by the family of the wakf were regarded as opposed to the rule against perpetuity as contained in the Indian Succession Act and the Transfer of Property Act. The leading decision of the Privy Council in that behalf rendered in Abdul Fata Mohamed Ishak v. Rasamaya Dhur Chowdhri [1895] LR 22 IA 76; ILR 22 Cal 619 (PC), caused considerable dissatisfaction in the Muslim community in India resulting in a representation being made to the Government of India and consequently the Validating Act came to be enacted with the primary object of removing the difficulties created by that decision. The preamble of the Act makes this very clear. Section 3 declares the right of a person professing Mussalman faith to create a wakf (which in all other respects is in accordance with the provisions of Mussalman law) for the maintenance and support wholly or partially of his family, children or descendants and in the case of a Hanafi Mussalman also for his own maintenance and support during the lifetime or for payment of his debts out of the rents of the property dedicated provided that the ultimate benefit is in such cases, expressly or impliedly reserved for the poor or for any other purpose recognised by the Mussalman law as a religious, pious or charitable purpose of a permanent character. Section 4 also declares that no such wakf as is referred to in s. 3 shall be deemed to be invalid merely because of remoteness of benefit to charity. In fact, s. 3 is declaratory of a right of a Muslim to create a valid wakf of the type described therein and the proviso makes it clear that but for the reservation of ultimate benefit to charity that has to be made, such family settlement (private wakfs) would be invalid. It is conceivable that a deed or instrument of wakf may be a composite one partly incorporating a public wakf and partly a private wakf but s. 3 of the Validating Act unquestionably refers to that part of the instrument which incorporates a private wakf--wakf-alal-aulad, the validity of which must depend upon whether in that part of the instrument the ultimate benefit is expressly or impliedly reserved for charitable or religious purposes or not. It is thus clear that s. 3 of the Validating Act refers only to Muslim trusts which are in the nature of wakf-alal-aulad. The exemption in s. 9 of the Act, therefore, clearly applies only to Muslim trusts which are in the nature of wakf- alal-aulad. This is also clear from the marginal note to s. 9 as well as the proviso to the section. If that be so then all other wakfs would squarely fall under s. 8(1) and to all such wakfs the limited exemption contemplated therein would apply. Even if the instrument of wakf is a composite one partly incorporating a public wakf and partly a private wakf that part which deals with public wakf will fall under s. 8(1) and the other part will be covered by s. 9, for, the language of s. 8(1) is wide enough to include such a deed to the extent that it incorporates a public wakf. In other words, Muslim trusts, i.e., wakfs other than wakf-alal-aulad, would be covered by s. 8(1) and to such wakfs the limited exemption contemplated by s. 8(1) would apply. If that be so, the gravamen of complaint that all wakfs (Muslim trusts) other than wakf-alal-aulad are receiving favourable treatment as against non-Muslim public charitable trusts must fall to the groundAs regards Muslim trusts which are in the nature of wakf-alal-aulad, which alone are covered by s. 9, the proviso clearly shows that the share of the beneficiary under such a trust, far from being exempted, is brought to tax and the tax is made realisable from the mutawalli and read with the proviso the main provision really confines the benefit of exemption only to ultimate illusory or remote, public charitable or religious purpose and is thus completely consistent with the object and scheme of the Act. | 0 | 3,085 | 1,545 | ### Instruction:
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counsel for the appellant ?Having regard to the submissions made by counsel for the appellant the question raised for determination may be formulated thus : Whether ss. 8 and 9 while providing for exemption to charitable or religious trusts discriminate between agricultural income derived from lands held under non-Muslim public trusts and those held under Muslim trusts and accord to the latter a favourable treatment as against the former by confining the exemption in the former case to such income as has been actually spent for public purposes of charitable or religious nature ? In other words is s. 8(1) which confers a limited exemption as compared to s. 9 hit by art. 14 ? It has not been disputed before us that Muslim trusts known as wakf-alal-aulad constitute a distinct class from other types of wakfs but the discrimination complained of is founded upon the plea that s. 9 of the Act covers all Mussalman wakfs and not merely wakfs known as the wakf-alal-aulad and, therefore, it will be necessary to examine the provisions of s. 9 in order to ascertain whether the plea that it covers all Mussalman wakfs is warranted or not. Section 9 in terms says that the exemption thereunder is confined to Muslim trusts " referred to in s. 3 of the Mussalman Wakf Validating Act, 1913, " and the question is what wakfs are referred in s. 3 of the Mussalman Wakf Validating Act, 1913 (hereinafter called " the Validating Act "). The Validating Act, as we shall indicate presently, was enacted only for the purpose of validating wakfs in the nature of wakf-alal-aulad. As has been pointed out by this court in Fazlul Rabbi Pradhan v. State of West Bengal, AIR 1965 SC 1722 , wakfs (which were primarily family settlements) in which the benefits to charity or religion were either illusory or postponed indefinitely while the property so dedicated was being enjoyed from generation to generation by the family of the wakf were regarded as opposed to the rule against perpetuity as contained in the Indian Succession Act and the Transfer of Property Act. The leading decision of the Privy Council in that behalf rendered in Abdul Fata Mohamed Ishak v. Rasamaya Dhur Chowdhri [1895] LR 22 IA 76; ILR 22 Cal 619 (PC), caused considerable dissatisfaction in the Muslim community in India resulting in a representation being made to the Government of India and consequently the Validating Act came to be enacted with the primary object of removing the difficulties created by that decision. The preamble of the Act makes this very clear. Section 3 declares the right of a person professing Mussalman faith to create a wakf (which in all other respects is in accordance with the provisions of Mussalman law) for the maintenance and support wholly or partially of his family, children or descendants and in the case of a Hanafi Mussalman also for his own maintenance and support during the lifetime or for payment of his debts out of the rents of the property dedicated provided that the ultimate benefit is in such cases, expressly or impliedly reserved for the poor or for any other purpose recognised by the Mussalman law as a religious, pious or charitable purpose of a permanent character. Section 4 also declares that no such wakf as is referred to in s. 3 shall be deemed to be invalid merely because of remoteness of benefit to charity. In fact, s. 3 is declaratory of a right of a Muslim to create a valid wakf of the type described therein and the proviso makes it clear that but for the reservation of ultimate benefit to charity that has to be made, such family settlement (private wakfs) would be invalid. It is conceivable that a deed or instrument of wakf may be a composite one partly incorporating a public wakf and partly a private wakf but s. 3 of the Validating Act unquestionably refers to that part of the instrument which incorporates a private wakf--wakf-alal-aulad, the validity of which must depend upon whether in that part of the instrument the ultimate benefit is expressly or impliedly reserved for charitable or religious purposes or not. It is thus clear that s. 3 of the Validating Act refers only to Muslim trusts which are in the nature of wakf-alal-aulad. The exemption in s. 9 of the Act, therefore, clearly applies only to Muslim trusts which are in the nature of wakf- alal-aulad. This is also clear from the marginal note to s. 9 as well as the proviso to the section. If that be so then all other wakfs would squarely fall under s. 8(1) and to all such wakfs the limited exemption contemplated therein would apply. Even if the instrument of wakf is a composite one partly incorporating a public wakf and partly a private wakf that part which deals with public wakf will fall under s. 8(1) and the other part will be covered by s. 9, for, the language of s. 8(1) is wide enough to include such a deed to the extent that it incorporates a public wakf. In other words, Muslim trusts, i.e., wakfs other than wakf-alal-aulad, would be covered by s. 8(1) and to such wakfs the limited exemption contemplated by s. 8(1) would apply. If that be so, the gravamen of complaint that all wakfs (Muslim trusts) other than wakf-alal-aulad are receiving favourable treatment as against non-Muslim public charitable trusts must fall to the groundAs regards Muslim trusts which are in the nature of wakf-alal-aulad, which alone are covered by s. 9, the proviso clearly shows that the share of the beneficiary under such a trust, far from being exempted, is brought to tax and the tax is made realisable from the mutawalli and read with the proviso the main provision really confines the benefit of exemption only to ultimate illusory or remote, public charitable or religious purpose and is thus completely consistent with the object and scheme of the Act.4.
### Response:
0
### Explanation:
for the appellant ?Having regard to the submissions made by counsel for the appellant the question raised for determination may be formulated thus : Whether ss. 8 and 9 while providing for exemption to charitable or religious trusts discriminate between agricultural income derived from lands held under non-Muslim public trusts and those held under Muslim trusts and accord to the latter a favourable treatment as against the former by confining the exemption in the former case to such income as has been actually spent for public purposes of charitable or religious nature ? In other words is s. 8(1) which confers a limited exemption as compared to s. 9 hit by art. 14 ? It has not been disputed before us that Muslim trusts known as wakf-alal-aulad constitute a distinct class from other types of wakfs but the discrimination complained of is founded upon the plea that s. 9 of the Act covers all Mussalman wakfs and not merely wakfs known as the wakf-alal-aulad and, therefore, it will be necessary to examine the provisions of s. 9 in order to ascertain whether the plea that it covers all Mussalman wakfs is warranted or not. Section 9 in terms says that the exemption thereunder is confined to Muslim trusts " referred to in s. 3 ofthe Mussalman Wakf Validating Act, 1913, " and the question is what wakfs are referred in s. 3 ofthe Mussalman Wakf Validating Act, 1913 (hereinafter called " the Validating Act "). The Validating Act, as we shall indicate presently, was enacted only for the purpose of validating wakfs in the nature of wakf-alal-aulad. As has been pointed out by this court in Fazlul Rabbi Pradhan v. State of West Bengal, AIR 1965 SC 1722 , wakfs (which were primarily family settlements) in which the benefits to charity or religion were either illusory or postponed indefinitely while the property so dedicated was being enjoyed from generation to generation by the family of the wakf were regarded as opposed to the rule against perpetuity as contained in the Indian Succession Act and the Transfer of Property Act. The leading decision of the Privy Council in that behalf rendered in Abdul Fata Mohamed Ishak v. Rasamaya Dhur Chowdhri [1895] LR 22 IA 76; ILR 22 Cal 619 (PC), caused considerable dissatisfaction in the Muslim community in India resulting in a representation being made to the Government of India and consequently the Validating Act came to be enacted with the primary object of removing the difficulties created by that decision. The preamble of the Act makes this very clear. Section 3 declares the right of a person professing Mussalman faith to create a wakf (which in all other respects is in accordance with the provisions of Mussalman law) for the maintenance and support wholly or partially of his family, children or descendants and in the case of a Hanafi Mussalman also for his own maintenance and support during the lifetime or for payment of his debts out of the rents of the property dedicated provided that the ultimate benefit is in such cases, expressly or impliedly reserved for the poor or for any other purpose recognised by the Mussalman law as a religious, pious or charitable purpose of a permanent character. Section 4 also declares that no such wakf as is referred to in s. 3 shall be deemed to be invalid merely because of remoteness of benefit to charity. In fact, s. 3 is declaratory of a right of a Muslim to create a valid wakf of the type described therein and the proviso makes it clear that but for the reservation of ultimate benefit to charity that has to be made, such family settlement (private wakfs) would be invalid. It is conceivable that a deed or instrument of wakf may be a composite one partly incorporating a public wakf and partly a private wakf but s. 3 of the Validating Act unquestionably refers to that part of the instrument which incorporates a private wakf--wakf-alal-aulad, the validity of which must depend upon whether in that part of the instrument the ultimate benefit is expressly or impliedly reserved for charitable or religious purposes or not. It is thus clear that s. 3 of the Validating Act refers only to Muslim trusts which are in the nature of wakf-alal-aulad. The exemption in s. 9 of the Act, therefore, clearly applies only to Muslim trusts which are in the nature of wakf- alal-aulad. This is also clear from the marginal note to s. 9 as well as the proviso to the section. If that be so then all other wakfs would squarely fall under s. 8(1) and to all such wakfs the limited exemption contemplated therein would apply. Even if the instrument of wakf is a composite one partly incorporating a public wakf and partly a private wakf that part which deals with public wakf will fall under s. 8(1) and the other part will be covered by s. 9, for, the language of s. 8(1) is wide enough to include such a deed to the extent that it incorporates a public wakf. In other words, Muslim trusts, i.e., wakfs other than wakf-alal-aulad, would be covered by s. 8(1) and to such wakfs the limited exemption contemplated by s. 8(1) would apply. If that be so, the gravamen of complaint that all wakfs (Muslim trusts) other than wakf-alal-aulad are receiving favourable treatment as against non-Muslim public charitable trusts must fall to the groundAs regards Muslim trusts which are in the nature of wakf-alal-aulad, which alone are covered by s. 9, the proviso clearly shows that the share of the beneficiary under such a trust, far from being exempted, is brought to tax and the tax is made realisable from the mutawalli and read with the proviso the main provision really confines the benefit of exemption only to ultimate illusory or remote, public charitable or religious purpose and is thus completely consistent with the object and scheme of the Act.
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ASHI KUMAR Vs. ASEEM AGARWAL | 1. Leave granted. 2. This appeal takes exception to the judgment and order dated 15.07.2019 passed by the High Court of Delhi at New Delhi in C.M.(M) No.1019 of 2019, whereby the High Court entertained the writ petition filed by the respondent herein, Assem Agarwal, under Article 227 of the Constitution of India challenging the order dated 01.12.2018 passed by the Family Court, Patiala House in H.M.A. No.33 of 2012 directing the respondent to produce the subject documents. 3. The High Court by the impugned order not only entertained the writ petition but stayed the trial before the Family Court, which is pending since 2011 (renumbered in 2012). 4. The necessity of producing the documents by the respondent relates back to Order dated 28.01.2014 passed by the Family Court, which reads thus: 28/1/2014 Pr: Petitioner in person alongwith her father and Sh.N.K. Srivastava. SPA Ms. Reena Jain for the respondent is also advocate for respondent. Petitioner wants to file formal response to affidavit as referred in order dated 6/12/2013. On communication from the respondent along with the attested affidavit in original (copy already filed) has been filed by the Ld. SPA. Adjourned for filing of response by the petitioner and for production of remaining original documents, if any and admission/denial of documents on 12/3/2014. Let the attested copy of divorce petition and the judgment and decree passed by Family Court at Auckland in New Zealand be filed by the respondent and advance copy be given to the other side.(emphasis supplied in italics) 5. It is not in dispute that this order has been allowed to become final by the respondent. As a matter of fact, the respondent partly complied with this direction by only producing decree passed by the Family Court at Aukland in New Zealand and not the judgment and divorce petition. Resultantly, the appellant moved the Family Court for issuing necessary directions to the respondent, which application was allowed by the Family Court vide order dated 01.12.2018. 6. Indisputably, directions were issued to the respondent to produce the stated documents which, however, remained uncomplied till 19.03.2019. On 29.03.2019 the respondent through counsel gave undertaking to the Family Court that he would file the documents on the next date of hearing. When the matter was again taken up on 03.04.2019, the Family Court was informed that the documents are in transit. Even on 21.05.2019, the respondent gave impression to the Family court that the documents were still in transit. 7. Instead of complying with the undertaking, the respondent chose to file writ petition to challenge the order dated 01.12.2018, which, as aforesaid, has been entertained by the High Court being oblivious of the fact that the respondent had given a solemn undertaking to the Family Court to produce the documents, through his counsel. 8. Counsel for the appellant contends that the undertaking to the Family Court was given not only by the counsel appearing for the respondent but also by his Power of Attorney. The respondent, however, disputes the correctness of this submission. We are not required to go into this controversy. 9. Suffice it to note that the High Court was impressed by the specious argument of the respondent that the documents insisted upon are not relevant to decide the controversy in issue. On that basis, the High Court proceeded to stay the trial. 10. In our opinion, the respondent having given undertaking to the Family Court through counsel and/or Power of Attorney, as the case may be, was obliged to comply with the same unless absolved therefrom by the Family Court. The question of entertaining writ petition despite such undertaking to the Family Court cannot be countenanced. If the respondent is not relieved of the undertaking by the Family Court, he must take the consequences of the order passed by the Family Court directing production of the said documents. We are of the opinion that if this position was brought to the notice of the High Court on 15.07.2019, perhaps the writ petition would not have been entertained by the High Court. 11. The counsel for the respondent submits that this argument was advanced before the High Court. If so, the High Court ought to have taken note of the same in the impugned judgment, which is conspicuously absent. Even for that reason, the impugned judgment cannot be sustained. | 0[ds]8. Counsel for the appellant contends that the undertaking to the Family Court was given not only by the counsel appearing for the respondent but also by his Power of Attorney. The respondent, however, disputes the correctness of this submission. We are not required to go into this controversyissue. On that basis, the High Court proceeded to stay the trial10. In our opinion, the respondent having given undertaking to the Family Court through counsel and/or Power of Attorney, as the case may be, was obliged to comply with the same unless absolved therefrom by the Family Court. The question of entertaining writ petition despite such undertaking to the Family Court cannot be countenanced. If the respondent is not relieved of the undertaking by the Family Court, he must take the consequences of the order passed by the Family Court directing production of the said documents. We are of the opinion that if this position was brought to the notice of the High Court on 15.07.2019, perhaps the writ petition would not have been entertained by the High Court11. The counsel for the respondent submits that this argument was advanced before the High Court. If so, the High Court ought to have taken note of the same in the impugned judgment, which is conspicuously absent. Even for that reason, the impugned judgment cannot be sustained9. Suffice it to note that the High Court was impressed by the specious argument of the respondent that the documents insisted upon are not relevant to decide the controversy inissue. On that basis, the High Court proceeded to stay the | 0 | 811 | 295 | ### 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:
1. Leave granted. 2. This appeal takes exception to the judgment and order dated 15.07.2019 passed by the High Court of Delhi at New Delhi in C.M.(M) No.1019 of 2019, whereby the High Court entertained the writ petition filed by the respondent herein, Assem Agarwal, under Article 227 of the Constitution of India challenging the order dated 01.12.2018 passed by the Family Court, Patiala House in H.M.A. No.33 of 2012 directing the respondent to produce the subject documents. 3. The High Court by the impugned order not only entertained the writ petition but stayed the trial before the Family Court, which is pending since 2011 (renumbered in 2012). 4. The necessity of producing the documents by the respondent relates back to Order dated 28.01.2014 passed by the Family Court, which reads thus: 28/1/2014 Pr: Petitioner in person alongwith her father and Sh.N.K. Srivastava. SPA Ms. Reena Jain for the respondent is also advocate for respondent. Petitioner wants to file formal response to affidavit as referred in order dated 6/12/2013. On communication from the respondent along with the attested affidavit in original (copy already filed) has been filed by the Ld. SPA. Adjourned for filing of response by the petitioner and for production of remaining original documents, if any and admission/denial of documents on 12/3/2014. Let the attested copy of divorce petition and the judgment and decree passed by Family Court at Auckland in New Zealand be filed by the respondent and advance copy be given to the other side.(emphasis supplied in italics) 5. It is not in dispute that this order has been allowed to become final by the respondent. As a matter of fact, the respondent partly complied with this direction by only producing decree passed by the Family Court at Aukland in New Zealand and not the judgment and divorce petition. Resultantly, the appellant moved the Family Court for issuing necessary directions to the respondent, which application was allowed by the Family Court vide order dated 01.12.2018. 6. Indisputably, directions were issued to the respondent to produce the stated documents which, however, remained uncomplied till 19.03.2019. On 29.03.2019 the respondent through counsel gave undertaking to the Family Court that he would file the documents on the next date of hearing. When the matter was again taken up on 03.04.2019, the Family Court was informed that the documents are in transit. Even on 21.05.2019, the respondent gave impression to the Family court that the documents were still in transit. 7. Instead of complying with the undertaking, the respondent chose to file writ petition to challenge the order dated 01.12.2018, which, as aforesaid, has been entertained by the High Court being oblivious of the fact that the respondent had given a solemn undertaking to the Family Court to produce the documents, through his counsel. 8. Counsel for the appellant contends that the undertaking to the Family Court was given not only by the counsel appearing for the respondent but also by his Power of Attorney. The respondent, however, disputes the correctness of this submission. We are not required to go into this controversy. 9. Suffice it to note that the High Court was impressed by the specious argument of the respondent that the documents insisted upon are not relevant to decide the controversy in issue. On that basis, the High Court proceeded to stay the trial. 10. In our opinion, the respondent having given undertaking to the Family Court through counsel and/or Power of Attorney, as the case may be, was obliged to comply with the same unless absolved therefrom by the Family Court. The question of entertaining writ petition despite such undertaking to the Family Court cannot be countenanced. If the respondent is not relieved of the undertaking by the Family Court, he must take the consequences of the order passed by the Family Court directing production of the said documents. We are of the opinion that if this position was brought to the notice of the High Court on 15.07.2019, perhaps the writ petition would not have been entertained by the High Court. 11. The counsel for the respondent submits that this argument was advanced before the High Court. If so, the High Court ought to have taken note of the same in the impugned judgment, which is conspicuously absent. Even for that reason, the impugned judgment cannot be sustained.
### Response:
0
### Explanation:
8. Counsel for the appellant contends that the undertaking to the Family Court was given not only by the counsel appearing for the respondent but also by his Power of Attorney. The respondent, however, disputes the correctness of this submission. We are not required to go into this controversyissue. On that basis, the High Court proceeded to stay the trial10. In our opinion, the respondent having given undertaking to the Family Court through counsel and/or Power of Attorney, as the case may be, was obliged to comply with the same unless absolved therefrom by the Family Court. The question of entertaining writ petition despite such undertaking to the Family Court cannot be countenanced. If the respondent is not relieved of the undertaking by the Family Court, he must take the consequences of the order passed by the Family Court directing production of the said documents. We are of the opinion that if this position was brought to the notice of the High Court on 15.07.2019, perhaps the writ petition would not have been entertained by the High Court11. The counsel for the respondent submits that this argument was advanced before the High Court. If so, the High Court ought to have taken note of the same in the impugned judgment, which is conspicuously absent. Even for that reason, the impugned judgment cannot be sustained9. Suffice it to note that the High Court was impressed by the specious argument of the respondent that the documents insisted upon are not relevant to decide the controversy inissue. On that basis, the High Court proceeded to stay the
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Laxmidhar Nayak & Others Vs. Jugal Kishore Behera & Others | R. Banumathi, J. 1. Leave granted. 2. Appellants who are the sons and daughter of the deceased Chanchali Nayak have filed this appeal seeking enhancement of compensation for the death of their mother in the road accident on 29.09.1991 as against compensation of Rs. 70,600/- awarded by the tribunal and affirmed by the High Court of Orissa. 3. Mother of appellants-Chanchali Nayak was working as an agricultural labourer. On the date of accident - 29.09.1991 at about 8.00 a.m., Chanchali Nayak was proceeding on the left side of the road alongwith some other labourers. At that time, due to head-on-collision between two vehicles-bus (bearing No.OSF 5157) and truck (bearing No.OAC 495), the bus swerved to the extreme left side of the road and ran over Chanchali Nayak and she succumbed to injuries. In the claim petition filed by the claimants, the tribunal held that the accident was due to rash and negligent driving of both the vehicles.4. So far as the compensation is concerned, the tribunal has taken the monthly income of the deceased at Rs. 650/- per month and after deducting an amount of Rs. 250/- towards her personal expenses, assessed the contribution to the family at Rs. 400/- per month. Deceased was aged 42 years and the tribunal adopted multiplier of "12" and awarded compensation of Rs. 57,600/- for the loss of dependency and adding conventional damages, tribunal has awarded total compensation of Rs. 70,600/-. The respondents No.1 and 2 - owners of the bus and the truck were held liable to pay the compensation to the claimants at 50% each alongwith interest at the rate of 9% per annum. Pointing out that the claimants have not produced the insurance policies of the vehicles, the tribunal held that the insurance company is not liable to indemnify the compensation. However, it is seen from the judgment of the High Court that the insurance company has been satisfied with the award. On appeal to the High Court by the claimants, the High Court affirmed the quantum of compensation of Rs. 70,600/- awarded to the claimants but reduced the rate of interest from 9% to 7%. So far as the liability of the insurance company is concerned, the High Court held that the insurance company-respondent No.3 having paid the compensation to the claimants cannot avoid its liability to pay the compensation amount. Being dissatisfied with the quantum of compensation, the appellants have filed this appeal. 5. We have heard the learned counsel for the appellants. Respondent No.2 and insurance company-respondent No.3 have not entered their appearance. We have perused the impugned judgment and the materials placed on record. 6. PW-1 in his evidence stated that Chanchali Nayak was earning Rs. 35/- per day as wages out of the labour work. Deceased Chanchali Nayak was an agricultural labourer. The tribunal has taken her income at the rate of Rs. 25/- per day and assessed the monthly income at Rs. 650/- per month. It is quite improbable that a labourer would be available for such a small amount of Rs. 25/- per day. The wages fixed by the tribunal for the daily labourer at Rs. 25/- per day and the monthly income at Rs. 650/- is too low. The reasoning of the tribunal that a lady labourer may not get engagement daily is not acceptable. Even though works like cutting of paddy and other agricultural labour may not be available on all days throughout the year, in rural areas other kinds of work are available for a labourer. Deceased Chanchali Nayak even though was said to be earning only Rs. 35/- per day at that time, over the years, she would have earned more. In our view, deceased Chanchali Nayak, being a woman and mother of three children, would have also contributed her physical labour for maintenance of household and also taking care of her children. The High Court as well as the tribunal did not keep in view the contribution of the deceased in the household work, being a labourer and also maintaining her husband, her daily income should be fixed at Rs. 150/- per day and Rs. 4,500/- per month.7. Taking income from the agricultural labour work at Rs. 3,000/- per month and Rs. 1,500/- per month for the household work, the monthly income of the deceased is fixed at Rs. 4,500/- per month deducting 1/3rd for personal expenses, contribution of deceased towards the family is calculated at Rs. 3,000/- per month and Rs. 36,000/- per annum. Deceased Chanchali Nayak was aged 42 years. As per the second schedule to the Motor Vehicles Act, 1988, for the age groups 40-45 years multiplier is "15". As per Sarla Verma (Smt.) and Others v. Delhi Transport Corporation and Another (2009) 6 SCC 121 , for the age groups 41-45 years multiplier to be adopted is "14". Therefore, the multiplier of "12" adopted by the tribunal and the High Court may not be correct. Hence, the multiplier of "12" adopted may not be correct. Adopting the multiplier of "14" loss of dependency is calculated at Rs. 5,04,000/- (3,000x12x14).8. As per the decision of the Constitution Bench in National Insurance Company Limited v. Pranay Sethi and Others 2017 (13) SCALE 12 , compensation of L15,000/- for loss of estate and Rs. 15,000/- for funeral expenses is awarded. Thus total compensation awarded to the claimants is enhanced to Rs. 5,34,000/- payable with interest at the rate of 7% per annum. | 1[ds]It is quite improbable that a labourer would be available for such a small amount of Rs. 25/per day. The wages fixed by the tribunal for the daily labourer at Rs. 25/per day and the monthly income at Rs. 650/is too low. The reasoning of the tribunal that a lady labourer may not get engagement daily is not acceptable. Even though works like cutting of paddy and other agricultural labour may not be available on all days throughout the year, in rural areas other kinds of work are available for a labourer. Deceased Chanchali Nayak even though was said to be earning only Rs. 35/per day at that time, over the years, she would have earned more. In our view, deceased Chanchali Nayak, being a woman and mother of three children, would have also contributed her physical labour for maintenance of household and also taking care of her children. The High Court as well as the tribunal did not keep in view the contribution of the deceased in the household work, being a labourer and also maintaining her husband, her daily income should be fixed at Rs. 150/per day and Rs. 4,500/per month.7. Taking income from the agricultural labour work at Rs. 3,000/per month and Rs. 1,500/per month for the household work, the monthly income of the deceased is fixed at Rs. 4,500/per month deducting 1/3rd for personal expenses, contribution of deceased towards the family is calculated at Rs. 3,000/per month and Rs. 36,000/per annum. Deceased Chanchali Nayak was aged 42 years. As per the second schedule to the Motor Vehicles Act, 1988, for the age groupsyears multiplier is "15". As per Sarla Verma (Smt.) and Others v. Delhi Transport Corporation and Another (2009) 6 SCC 121 , for the age groups(3,000x12x14).8. As per the decision of the Constitution Bench in National Insurance Company Limited v. Pranay Sethi and Others 2017 (13) SCALE 12 , compensation of L15,000/for loss of estate and Rs. 15,000/for funeral expenses is awarded. Thus total compensation awarded to the claimants is enhanced to Rs. 5,34,000/payable with interest at the rate of 7% per annum. | 1 | 1,029 | 405 | ### 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:
R. Banumathi, J. 1. Leave granted. 2. Appellants who are the sons and daughter of the deceased Chanchali Nayak have filed this appeal seeking enhancement of compensation for the death of their mother in the road accident on 29.09.1991 as against compensation of Rs. 70,600/- awarded by the tribunal and affirmed by the High Court of Orissa. 3. Mother of appellants-Chanchali Nayak was working as an agricultural labourer. On the date of accident - 29.09.1991 at about 8.00 a.m., Chanchali Nayak was proceeding on the left side of the road alongwith some other labourers. At that time, due to head-on-collision between two vehicles-bus (bearing No.OSF 5157) and truck (bearing No.OAC 495), the bus swerved to the extreme left side of the road and ran over Chanchali Nayak and she succumbed to injuries. In the claim petition filed by the claimants, the tribunal held that the accident was due to rash and negligent driving of both the vehicles.4. So far as the compensation is concerned, the tribunal has taken the monthly income of the deceased at Rs. 650/- per month and after deducting an amount of Rs. 250/- towards her personal expenses, assessed the contribution to the family at Rs. 400/- per month. Deceased was aged 42 years and the tribunal adopted multiplier of "12" and awarded compensation of Rs. 57,600/- for the loss of dependency and adding conventional damages, tribunal has awarded total compensation of Rs. 70,600/-. The respondents No.1 and 2 - owners of the bus and the truck were held liable to pay the compensation to the claimants at 50% each alongwith interest at the rate of 9% per annum. Pointing out that the claimants have not produced the insurance policies of the vehicles, the tribunal held that the insurance company is not liable to indemnify the compensation. However, it is seen from the judgment of the High Court that the insurance company has been satisfied with the award. On appeal to the High Court by the claimants, the High Court affirmed the quantum of compensation of Rs. 70,600/- awarded to the claimants but reduced the rate of interest from 9% to 7%. So far as the liability of the insurance company is concerned, the High Court held that the insurance company-respondent No.3 having paid the compensation to the claimants cannot avoid its liability to pay the compensation amount. Being dissatisfied with the quantum of compensation, the appellants have filed this appeal. 5. We have heard the learned counsel for the appellants. Respondent No.2 and insurance company-respondent No.3 have not entered their appearance. We have perused the impugned judgment and the materials placed on record. 6. PW-1 in his evidence stated that Chanchali Nayak was earning Rs. 35/- per day as wages out of the labour work. Deceased Chanchali Nayak was an agricultural labourer. The tribunal has taken her income at the rate of Rs. 25/- per day and assessed the monthly income at Rs. 650/- per month. It is quite improbable that a labourer would be available for such a small amount of Rs. 25/- per day. The wages fixed by the tribunal for the daily labourer at Rs. 25/- per day and the monthly income at Rs. 650/- is too low. The reasoning of the tribunal that a lady labourer may not get engagement daily is not acceptable. Even though works like cutting of paddy and other agricultural labour may not be available on all days throughout the year, in rural areas other kinds of work are available for a labourer. Deceased Chanchali Nayak even though was said to be earning only Rs. 35/- per day at that time, over the years, she would have earned more. In our view, deceased Chanchali Nayak, being a woman and mother of three children, would have also contributed her physical labour for maintenance of household and also taking care of her children. The High Court as well as the tribunal did not keep in view the contribution of the deceased in the household work, being a labourer and also maintaining her husband, her daily income should be fixed at Rs. 150/- per day and Rs. 4,500/- per month.7. Taking income from the agricultural labour work at Rs. 3,000/- per month and Rs. 1,500/- per month for the household work, the monthly income of the deceased is fixed at Rs. 4,500/- per month deducting 1/3rd for personal expenses, contribution of deceased towards the family is calculated at Rs. 3,000/- per month and Rs. 36,000/- per annum. Deceased Chanchali Nayak was aged 42 years. As per the second schedule to the Motor Vehicles Act, 1988, for the age groups 40-45 years multiplier is "15". As per Sarla Verma (Smt.) and Others v. Delhi Transport Corporation and Another (2009) 6 SCC 121 , for the age groups 41-45 years multiplier to be adopted is "14". Therefore, the multiplier of "12" adopted by the tribunal and the High Court may not be correct. Hence, the multiplier of "12" adopted may not be correct. Adopting the multiplier of "14" loss of dependency is calculated at Rs. 5,04,000/- (3,000x12x14).8. As per the decision of the Constitution Bench in National Insurance Company Limited v. Pranay Sethi and Others 2017 (13) SCALE 12 , compensation of L15,000/- for loss of estate and Rs. 15,000/- for funeral expenses is awarded. Thus total compensation awarded to the claimants is enhanced to Rs. 5,34,000/- payable with interest at the rate of 7% per annum.
### Response:
1
### Explanation:
It is quite improbable that a labourer would be available for such a small amount of Rs. 25/per day. The wages fixed by the tribunal for the daily labourer at Rs. 25/per day and the monthly income at Rs. 650/is too low. The reasoning of the tribunal that a lady labourer may not get engagement daily is not acceptable. Even though works like cutting of paddy and other agricultural labour may not be available on all days throughout the year, in rural areas other kinds of work are available for a labourer. Deceased Chanchali Nayak even though was said to be earning only Rs. 35/per day at that time, over the years, she would have earned more. In our view, deceased Chanchali Nayak, being a woman and mother of three children, would have also contributed her physical labour for maintenance of household and also taking care of her children. The High Court as well as the tribunal did not keep in view the contribution of the deceased in the household work, being a labourer and also maintaining her husband, her daily income should be fixed at Rs. 150/per day and Rs. 4,500/per month.7. Taking income from the agricultural labour work at Rs. 3,000/per month and Rs. 1,500/per month for the household work, the monthly income of the deceased is fixed at Rs. 4,500/per month deducting 1/3rd for personal expenses, contribution of deceased towards the family is calculated at Rs. 3,000/per month and Rs. 36,000/per annum. Deceased Chanchali Nayak was aged 42 years. As per the second schedule to the Motor Vehicles Act, 1988, for the age groupsyears multiplier is "15". As per Sarla Verma (Smt.) and Others v. Delhi Transport Corporation and Another (2009) 6 SCC 121 , for the age groups(3,000x12x14).8. As per the decision of the Constitution Bench in National Insurance Company Limited v. Pranay Sethi and Others 2017 (13) SCALE 12 , compensation of L15,000/for loss of estate and Rs. 15,000/for funeral expenses is awarded. Thus total compensation awarded to the claimants is enhanced to Rs. 5,34,000/payable with interest at the rate of 7% per annum.
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Shree Ram Urban Infras.Ld.Forml.S.R.Mill Vs. Court Receiver,High Court Of Mumbai | of Order XL Rule 1 cannot give any narrower construction for holding that the Code does not empower the Receiver to bring a suit for recovery of possession of immovable property. In support, he has relied on all the aforesaid decisions. 14. After considering and analyzing all the decisions, in our opinion, we cannot give a narrower construction with regard to the rights/authority given to the Receiver under Order XL Rule 1(d). We have also considered the appointment order in the present case. In our opinion, the Receiver was given full powers under the provision of Order XL Rule 1(d) as rightly shown by Mr. Sorabjee, learned senior counsel and, therefore, the ruling relied upon by Mr. Ranjit Kumar, learned senior counsel for the appellant, cannot be of any help to him and, accordingly, we reject such contention of Mr. Ranjit Kumar, learned senior counsel, and hold that in the facts and circumstances of this case, the Receiver has acted in the matter for the purpose of administering the property. Even we have seen that the Supreme Court in Harinagar Sugar Mills Co. Ltd. (supra) has held that a Receiver was appointed pending a suit for partition and the Receiver filed a winding-up petition for realization of debt. It was contended that the Receiver had no power to institute a petition for winding-up of a company. The Supreme Court conceding that winding-up order is not a normal alternative to sue but held that it is a form of equitable execution covered by clause (d) of Rule 1(1) of Order XL of the Code and as such steps could be taken by the Receiver. It is also to be noted that the power must be conferred on the Receiver by the Court either expressly or by necessary implication, as the case may be. In the facts of this case, the Receiver acted to safeguard the interest of the trustees for preserving the estate. We also feel that the Receiver acted in the matter as ought to have been done by the trustees to preserve the estate.15. In Kurapati Venkata Mallayya & Anr. vs. Thondepu Ramaswami & Co. & Anr. [AIR 1964 SC 818 ], a four-Judge Bench of this Court held that the Receiver has a right to institute a suit when the authority has been given to the Receiver to preserve the estate. Such authority is wide enough to empower the Receiver, as he thought necessary, for preserving the estate and such authority, in our opinion, includes to institute a suit. as has been held by this Court.16. We have considered all the points which have been urged by Mr. Ranjit Kumar, learned senior counsel appearing on behalf of the appellant. We are not able to accept his contention that the Receiver without leave of the court, cannot file a suit in the factual matrix of this case. We have also taken into account that obtaining of leave of the court before filing of the suit cannot be fatal and the same can be cured in law and is merely an irregularity. We have also considered the decision of this Court in Kurapati Venkata Mallayya & Anr. (supra) and find that when authority has been given to the Receiver to preserve the estate, it empowers the Receiver, i.e., for preserving the estate, he has a right to institute the suit and, accordingly, in the light of the said judgment, we express our opinion and accept the reasoning given by the High Court that the Receiver had the authority to institute a suit for preserving the estate. Therefore, we do not accept the contention of Mr. Ranjit Kumar, learned senior counsel, on such question. The second point urged by Mr. Ranjit Kumar, learned senior counsel, is that the suit is bad with regard to Section 106 of the Transfer of Property Act. We have duly considered the said question, and we find that the suit was filed after six months from the date of the notice issued under Section 106 of the Transfer of Property Act, by the Receiver and furthermore, after the amendment of Section 106(3) which reads as follows: “(3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section.” We have noticed that the High Court duly considered the question of notice and correctly came to the conclusion that the Legislature wanted to plug the loopholes and to redress the mischief by making a change in the law. Therefore, if the notice is short of the period specified in sub-section (1) but the suit or proceeding is filed after the expiry of the period mentioned in sub-section (1), the notice shall not be deemed to be invalid. Clearly, in this matter, the notice was issued on July 26, 2001 and the suit was actually filed on February 6, 2002 – after six months and, therefore, the notice cannot be declared or deemed to be invalid.17. The third question which is tried to be urged before us, in our opinion, has no substance since the Court Receiver is holding the properties as custodia legis and has acted in the matter as reasonable prudent trustees used to do in this matter and such action on the part of the Court Receiver is nothing but for preservation of the property in question, therefore, the contention of Mr. Ranjit Kumar on that ground also, cannot have any substance. [See Harinagar Sugar Mills Co. Ltd. (supra)].18. Although the point tried to be taken by Mr. Ranjit Kumar, learned senior counsel, is that the appellant is a sick company but we do not find that such point was ever urged before the High Court and, furthermore, it appears that admittedly the tenancy was about the residential premises. Therefore, in our opinion, such point cannot have any substance at this stage. | 0[ds]14. After considering and analyzing all the decisions, in our opinion, we cannot give a narrower construction with regard to the rights/authority given to the Receiver under Order XL Rule 1(d). We have also considered the appointment order in the present case. In our opinion, the Receiver was given full powers under the provision of Order XL Rule 1(d) as rightly shown by Mr. Sorabjee, learned senior counsel and, therefore, the ruling relied upon by Mr. Ranjit Kumar, learned senior counsel for the appellant, cannot be of any help to him and, accordingly, we reject such contention of Mr. Ranjit Kumar, learned senior counsel, and hold that in the facts and circumstances of this case, the Receiver has acted in the matter for the purpose of administering the property. Even we have seen that the Supreme Court in Harinagar Sugar Mills Co. Ltd. (supra) has held that a Receiver was appointed pending a suit for partition and the Receiver filed a winding-up petition for realization of debt. It was contended that the Receiver had no power to institute a petition for winding-up of a company. The Supreme Court conceding that winding-up order is not a normal alternative to sue but held that it is a form of equitable execution covered by clause (d) of Rule 1(1) of Order XL of the Code and as such steps could be taken by the Receiver. It is also to be noted that the power must be conferred on the Receiver by the Court either expressly or by necessary implication, as the case may be. In the facts of this case, the Receiver acted to safeguard the interest of the trustees for preserving the estate. We also feel that the Receiver acted in the matter as ought to have been done by the trustees to preserve the estate.15. In Kurapati Venkata Mallayya & Anr. vs. Thondepu Ramaswami & Co. & Anr. [AIR 1964 SC 818 ], a four-Judge Bench of this Court held that the Receiver has a right to institute a suit when the authority has been given to the Receiver to preserve the estate. Such authority is wide enough to empower the Receiver, as he thought necessary, for preserving the estate and such authority, in our opinion, includes to institute a suit. as has been held by this Court.16. We have considered all the points which have been urged by Mr. Ranjit Kumar, learned senior counsel appearing on behalf of the appellant. We are not able to accept his contention that the Receiver without leave of the court, cannot file a suit in the factual matrix of this case. We have also taken into account that obtaining of leave of the court before filing of the suit cannot be fatal and the same can be cured in law and is merely an irregularity. We have also considered the decision of this Court in Kurapati Venkata Mallayya & Anr. (supra) and find that when authority has been given to the Receiver to preserve the estate, it empowers the Receiver, i.e., for preserving the estate, he has a right to institute the suit and, accordingly, in the light of the said judgment, we express our opinion and accept the reasoning given by the High Court that the Receiver had the authority to institute a suit for preserving the estate. Therefore, we do not accept the contention of Mr. Ranjit Kumar, learned senior counsel, on such question. The second point urged by Mr. Ranjit Kumar, learned senior counsel, is that the suit is bad with regard to Section 106 of the Transfer of Property Act. We have duly considered the said question, and we find that the suit was filed after six months from the date of the notice issued under Section 106 of the Transfer of Property Act, by the Receiver and furthermore, after the amendment of Section 106(3) which reads asA notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in thathave noticed that the High Court duly considered the question of notice and correctly came to the conclusion that the Legislature wanted to plug the loopholes and to redress the mischief by making a change in the law. Therefore, if the notice is short of the period specified in sub-section (1) but the suit or proceeding is filed after the expiry of the period mentioned in sub-section (1), the notice shall not be deemed to be invalid. Clearly, in this matter, the notice was issued on July 26, 2001 and the suit was actually filed on February 6, 2002 – after six months and, therefore, the notice cannot be declared or deemed to be invalid.17. The third question which is tried to be urged before us, in our opinion, has no substance since the Court Receiver is holding the properties as custodia legis and has acted in the matter as reasonable prudent trustees used to do in this matter and such action on the part of the Court Receiver is nothing but for preservation of the property in question, therefore, the contention of Mr. Ranjit Kumar on that ground also, cannot have any substance. [See Harinagar Sugar Mills Co. Ltd. (supra)].18. Although the point tried to be taken by Mr. Ranjit Kumar, learned senior counsel, is that the appellant is a sick company but we do not find that such point was ever urged before the High Court and, furthermore, it appears that admittedly the tenancy was about the residential premises. Therefore, in our opinion, such point cannot have any substance at this stage. | 0 | 3,661 | 1,080 | ### 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:
of Order XL Rule 1 cannot give any narrower construction for holding that the Code does not empower the Receiver to bring a suit for recovery of possession of immovable property. In support, he has relied on all the aforesaid decisions. 14. After considering and analyzing all the decisions, in our opinion, we cannot give a narrower construction with regard to the rights/authority given to the Receiver under Order XL Rule 1(d). We have also considered the appointment order in the present case. In our opinion, the Receiver was given full powers under the provision of Order XL Rule 1(d) as rightly shown by Mr. Sorabjee, learned senior counsel and, therefore, the ruling relied upon by Mr. Ranjit Kumar, learned senior counsel for the appellant, cannot be of any help to him and, accordingly, we reject such contention of Mr. Ranjit Kumar, learned senior counsel, and hold that in the facts and circumstances of this case, the Receiver has acted in the matter for the purpose of administering the property. Even we have seen that the Supreme Court in Harinagar Sugar Mills Co. Ltd. (supra) has held that a Receiver was appointed pending a suit for partition and the Receiver filed a winding-up petition for realization of debt. It was contended that the Receiver had no power to institute a petition for winding-up of a company. The Supreme Court conceding that winding-up order is not a normal alternative to sue but held that it is a form of equitable execution covered by clause (d) of Rule 1(1) of Order XL of the Code and as such steps could be taken by the Receiver. It is also to be noted that the power must be conferred on the Receiver by the Court either expressly or by necessary implication, as the case may be. In the facts of this case, the Receiver acted to safeguard the interest of the trustees for preserving the estate. We also feel that the Receiver acted in the matter as ought to have been done by the trustees to preserve the estate.15. In Kurapati Venkata Mallayya & Anr. vs. Thondepu Ramaswami & Co. & Anr. [AIR 1964 SC 818 ], a four-Judge Bench of this Court held that the Receiver has a right to institute a suit when the authority has been given to the Receiver to preserve the estate. Such authority is wide enough to empower the Receiver, as he thought necessary, for preserving the estate and such authority, in our opinion, includes to institute a suit. as has been held by this Court.16. We have considered all the points which have been urged by Mr. Ranjit Kumar, learned senior counsel appearing on behalf of the appellant. We are not able to accept his contention that the Receiver without leave of the court, cannot file a suit in the factual matrix of this case. We have also taken into account that obtaining of leave of the court before filing of the suit cannot be fatal and the same can be cured in law and is merely an irregularity. We have also considered the decision of this Court in Kurapati Venkata Mallayya & Anr. (supra) and find that when authority has been given to the Receiver to preserve the estate, it empowers the Receiver, i.e., for preserving the estate, he has a right to institute the suit and, accordingly, in the light of the said judgment, we express our opinion and accept the reasoning given by the High Court that the Receiver had the authority to institute a suit for preserving the estate. Therefore, we do not accept the contention of Mr. Ranjit Kumar, learned senior counsel, on such question. The second point urged by Mr. Ranjit Kumar, learned senior counsel, is that the suit is bad with regard to Section 106 of the Transfer of Property Act. We have duly considered the said question, and we find that the suit was filed after six months from the date of the notice issued under Section 106 of the Transfer of Property Act, by the Receiver and furthermore, after the amendment of Section 106(3) which reads as follows: “(3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section.” We have noticed that the High Court duly considered the question of notice and correctly came to the conclusion that the Legislature wanted to plug the loopholes and to redress the mischief by making a change in the law. Therefore, if the notice is short of the period specified in sub-section (1) but the suit or proceeding is filed after the expiry of the period mentioned in sub-section (1), the notice shall not be deemed to be invalid. Clearly, in this matter, the notice was issued on July 26, 2001 and the suit was actually filed on February 6, 2002 – after six months and, therefore, the notice cannot be declared or deemed to be invalid.17. The third question which is tried to be urged before us, in our opinion, has no substance since the Court Receiver is holding the properties as custodia legis and has acted in the matter as reasonable prudent trustees used to do in this matter and such action on the part of the Court Receiver is nothing but for preservation of the property in question, therefore, the contention of Mr. Ranjit Kumar on that ground also, cannot have any substance. [See Harinagar Sugar Mills Co. Ltd. (supra)].18. Although the point tried to be taken by Mr. Ranjit Kumar, learned senior counsel, is that the appellant is a sick company but we do not find that such point was ever urged before the High Court and, furthermore, it appears that admittedly the tenancy was about the residential premises. Therefore, in our opinion, such point cannot have any substance at this stage.
### Response:
0
### Explanation:
14. After considering and analyzing all the decisions, in our opinion, we cannot give a narrower construction with regard to the rights/authority given to the Receiver under Order XL Rule 1(d). We have also considered the appointment order in the present case. In our opinion, the Receiver was given full powers under the provision of Order XL Rule 1(d) as rightly shown by Mr. Sorabjee, learned senior counsel and, therefore, the ruling relied upon by Mr. Ranjit Kumar, learned senior counsel for the appellant, cannot be of any help to him and, accordingly, we reject such contention of Mr. Ranjit Kumar, learned senior counsel, and hold that in the facts and circumstances of this case, the Receiver has acted in the matter for the purpose of administering the property. Even we have seen that the Supreme Court in Harinagar Sugar Mills Co. Ltd. (supra) has held that a Receiver was appointed pending a suit for partition and the Receiver filed a winding-up petition for realization of debt. It was contended that the Receiver had no power to institute a petition for winding-up of a company. The Supreme Court conceding that winding-up order is not a normal alternative to sue but held that it is a form of equitable execution covered by clause (d) of Rule 1(1) of Order XL of the Code and as such steps could be taken by the Receiver. It is also to be noted that the power must be conferred on the Receiver by the Court either expressly or by necessary implication, as the case may be. In the facts of this case, the Receiver acted to safeguard the interest of the trustees for preserving the estate. We also feel that the Receiver acted in the matter as ought to have been done by the trustees to preserve the estate.15. In Kurapati Venkata Mallayya & Anr. vs. Thondepu Ramaswami & Co. & Anr. [AIR 1964 SC 818 ], a four-Judge Bench of this Court held that the Receiver has a right to institute a suit when the authority has been given to the Receiver to preserve the estate. Such authority is wide enough to empower the Receiver, as he thought necessary, for preserving the estate and such authority, in our opinion, includes to institute a suit. as has been held by this Court.16. We have considered all the points which have been urged by Mr. Ranjit Kumar, learned senior counsel appearing on behalf of the appellant. We are not able to accept his contention that the Receiver without leave of the court, cannot file a suit in the factual matrix of this case. We have also taken into account that obtaining of leave of the court before filing of the suit cannot be fatal and the same can be cured in law and is merely an irregularity. We have also considered the decision of this Court in Kurapati Venkata Mallayya & Anr. (supra) and find that when authority has been given to the Receiver to preserve the estate, it empowers the Receiver, i.e., for preserving the estate, he has a right to institute the suit and, accordingly, in the light of the said judgment, we express our opinion and accept the reasoning given by the High Court that the Receiver had the authority to institute a suit for preserving the estate. Therefore, we do not accept the contention of Mr. Ranjit Kumar, learned senior counsel, on such question. The second point urged by Mr. Ranjit Kumar, learned senior counsel, is that the suit is bad with regard to Section 106 of the Transfer of Property Act. We have duly considered the said question, and we find that the suit was filed after six months from the date of the notice issued under Section 106 of the Transfer of Property Act, by the Receiver and furthermore, after the amendment of Section 106(3) which reads asA notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in thathave noticed that the High Court duly considered the question of notice and correctly came to the conclusion that the Legislature wanted to plug the loopholes and to redress the mischief by making a change in the law. Therefore, if the notice is short of the period specified in sub-section (1) but the suit or proceeding is filed after the expiry of the period mentioned in sub-section (1), the notice shall not be deemed to be invalid. Clearly, in this matter, the notice was issued on July 26, 2001 and the suit was actually filed on February 6, 2002 – after six months and, therefore, the notice cannot be declared or deemed to be invalid.17. The third question which is tried to be urged before us, in our opinion, has no substance since the Court Receiver is holding the properties as custodia legis and has acted in the matter as reasonable prudent trustees used to do in this matter and such action on the part of the Court Receiver is nothing but for preservation of the property in question, therefore, the contention of Mr. Ranjit Kumar on that ground also, cannot have any substance. [See Harinagar Sugar Mills Co. Ltd. (supra)].18. Although the point tried to be taken by Mr. Ranjit Kumar, learned senior counsel, is that the appellant is a sick company but we do not find that such point was ever urged before the High Court and, furthermore, it appears that admittedly the tenancy was about the residential premises. Therefore, in our opinion, such point cannot have any substance at this stage.
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M/S Bihar Caustic And Chemical Ltd Vs. Lallandeo Singh | Leave granted. The respondent was working as a security guard. While he was on duty, the Managing Director of the appellant-company was assaulted by three workers. The respondent failed to take any preventive action against the miscreants. Consequently, a charge-sheet was issued against the respondent for the said act of misconduct. Since the respondent refused to accept the charge-sheet, another charge-sheet was issued against him. He tendered his reply to the first charge-sheet. The explanation offered by him was not found satisfactory and a domestic enquiry was held against him. He was found guilty of misconduct. On the basis of the findings of the enquiry officer, the respondent was dismissed. Action had been taken against the respondent in an earlier case. Hence, he raised an industrial dispute and the reference was pending before the Industrial Tribunal. The Management filed an application under Section 33(2)(b) of the Industrial Disputes Act 1947 seeking approval of the action of dismissal taken against the respondent for not preventing the miscreants from assaulting the Managing Director. The Industrial Tribunal dismissed the application thereby declining the approval of the action taken by the appellant. Aggrieved by the said order, the appellant filed a writ petition before the High Court which was dismissed by a learned Single Judge. The Management thereafter filed a Letters Patent Appeal. During the pendency of the Letters Patent Appeal being L.P.A.No.847 of 2003, a settlement was arrived at between the Management and the workman and an application, viz., I.A.No.1072 of 2004 in LPA No.847 of 2003 was filed by the appellant seeking disposal of the LPA in terms of the settlement arrived at between the parties. It was stated in the application that a sum of Rs.4,65,000/- had been paid to the respondent-workman vide two cheques, namely, Cheque No.671163 dated 15.5.2004 for an amount of Rs.4,29,285/- and Cheque No.620597 of the same date for an amount of Rs.35,715/- drawable at State Bank of India, Rehla thus making a total of Rs.4,65,000/- towards provident fund dues. The Division Bench, however, without taking note of the application for settlement, disposed of the LPA by affirming the order of the learned Single Judge. The said order is in challenge before us. Notice was issued in the matter on 07th July 2006. However, counter affidavit has not been filed in the matter so far. It seems that the respondent-workman has not filed the counter affidavit because of the settlement arrived at between the parties.In view of the fact that a settlement has already been arrived at between the parties which is not controverted by either of the parties, we set aside the order passed by the Division Bench of the High Court and hold that the appeal before the High Court shall be deemed to have been disposed of in terms of the settlement arrived at between the parties, the terms of which are mentioned in I.A. No.1072 of 2004 in L.P.A.No.847 of 2003. | 1[ds]In view of the fact that a settlement has already been arrived at between the parties which is not controverted by either of the parties, we set aside the order passed by the Division Bench of the High Court and hold that the appeal before the High Court shall be deemed to have been disposed of in terms of the settlement arrived at between the parties, the terms of which are mentioned in I.A. No.1072 of 2004 in L.P.A.No.847 of 2003. | 1 | 536 | 89 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
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Leave granted. The respondent was working as a security guard. While he was on duty, the Managing Director of the appellant-company was assaulted by three workers. The respondent failed to take any preventive action against the miscreants. Consequently, a charge-sheet was issued against the respondent for the said act of misconduct. Since the respondent refused to accept the charge-sheet, another charge-sheet was issued against him. He tendered his reply to the first charge-sheet. The explanation offered by him was not found satisfactory and a domestic enquiry was held against him. He was found guilty of misconduct. On the basis of the findings of the enquiry officer, the respondent was dismissed. Action had been taken against the respondent in an earlier case. Hence, he raised an industrial dispute and the reference was pending before the Industrial Tribunal. The Management filed an application under Section 33(2)(b) of the Industrial Disputes Act 1947 seeking approval of the action of dismissal taken against the respondent for not preventing the miscreants from assaulting the Managing Director. The Industrial Tribunal dismissed the application thereby declining the approval of the action taken by the appellant. Aggrieved by the said order, the appellant filed a writ petition before the High Court which was dismissed by a learned Single Judge. The Management thereafter filed a Letters Patent Appeal. During the pendency of the Letters Patent Appeal being L.P.A.No.847 of 2003, a settlement was arrived at between the Management and the workman and an application, viz., I.A.No.1072 of 2004 in LPA No.847 of 2003 was filed by the appellant seeking disposal of the LPA in terms of the settlement arrived at between the parties. It was stated in the application that a sum of Rs.4,65,000/- had been paid to the respondent-workman vide two cheques, namely, Cheque No.671163 dated 15.5.2004 for an amount of Rs.4,29,285/- and Cheque No.620597 of the same date for an amount of Rs.35,715/- drawable at State Bank of India, Rehla thus making a total of Rs.4,65,000/- towards provident fund dues. The Division Bench, however, without taking note of the application for settlement, disposed of the LPA by affirming the order of the learned Single Judge. The said order is in challenge before us. Notice was issued in the matter on 07th July 2006. However, counter affidavit has not been filed in the matter so far. It seems that the respondent-workman has not filed the counter affidavit because of the settlement arrived at between the parties.In view of the fact that a settlement has already been arrived at between the parties which is not controverted by either of the parties, we set aside the order passed by the Division Bench of the High Court and hold that the appeal before the High Court shall be deemed to have been disposed of in terms of the settlement arrived at between the parties, the terms of which are mentioned in I.A. No.1072 of 2004 in L.P.A.No.847 of 2003.
### Response:
1
### Explanation:
In view of the fact that a settlement has already been arrived at between the parties which is not controverted by either of the parties, we set aside the order passed by the Division Bench of the High Court and hold that the appeal before the High Court shall be deemed to have been disposed of in terms of the settlement arrived at between the parties, the terms of which are mentioned in I.A. No.1072 of 2004 in L.P.A.No.847 of 2003.
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Mahadeo Vs. State of Maharashtra & Another | position that the prosecutrix was a minor was found to be fully established, thereafter, the only other question that needs to be examined is as to the sexual assault alleged to have been committed by the appellant on her and whether such an allegation was satisfactorily established before the Courts below. In this respect, after the prosecutrix was found missing, PW-1 after his initial search to trace his daughter, stated to have preferred missing report in Gandhi Chowk Police Station, alleging that she was missing along with gold ornaments valued at Rs.1 lakh. Thereafter, the search continued and that according to the prosecution the appellant himself brought back the prosecutrix to village Babhalgaon on 07.11.2005 whereafter the crime came to be registered as Crime No.219 of 2005. 14. After the prosecutrix was secured she was examined by PW-8, Dr. Aruna Varte on 10.11.2005 who issued the certificate Exhibit 43. As per the certificate Exhibit 43, PW-8 confirmed that hymen was old ruptured and that the prosecutrix was used for sexual intercourse. PW-8 confirmed Exhibit.43, medical certificate issued by her. PW-8 also confirmed that based on the chemical analysis report, she issued a medical certificate and confirmed the contents of the certificate Exhibit-43 wherein she had given the opinion that the prosecutirx was used for sexual intercourse. When the chemical analysis report was examined by the trial Court, the trial Court has referred to the contents of the chemical analysis report in Exhibits-60 and 61 and the same can be referred to which has been stated in paragraph 27. Para 27 reads as under: "27. C.A. report Ex.60 pertains to the Jangiya and petticoat of prosecutrix and nicker of accused and the result of its analysis shows that semen stains were found on Jangiya and petticoat of prosecutrix and nicker of accused and the blood group of said semen is AB. C.A. report Ex.61 pertains to the blood, vaginal swab and pubic hair of prosecutrix and the result of its analysis shows that no semen is detected on vaginal swab and pubic hair and blood group is B. C.A. report Ex.62 pertains to the semen, pubic hair and blood of accused and the result of analysis shows that the blood group of accused is AB; so also, no semen is detected on the pubic hair of accused. Now, from the aforesaid C.A. report, it transpired that the semen detected on Jangiya and petticoat of prosecutrix is of accused, because of blood group of accused as well as the blood group of semen found on the aforesaid clothes of prosecutrix is same. Therefore, these C.A. reports support to the prosecutrix to hold that the accused has committed rape on the prosecutrix."(Emphasis added) 15. Keeping the contents of the chemical analysis report, as noted by the Courts below in mind, when we consider the deposition of the prosecutrix PW-3, we find that she had narrated every minute detail as to how the appellant allured her by taking advantage of her contact with him while singing Bhajansongs, how he persuaded her by stating that recording of her Bhajans in audio cassette would enable her to earn tons of money and in that pretext also tempted her to take away the gold ornaments from the house worth Rs.1 lakh and thus gained her confidence to go along with him and misused his company by keeping her in a place at Karnool where she was not acquainted with the local language of Telugu and ultimately, abused her physically at least for more than for a month and twenty days. The vivid description of the behaviour of the appellant during the period when she was kept in his custody i.e., between 20.09.2005 to 07.11.2005, was clearly demonstrated by the prosecutrix and any amount of cross examination at the instance of the appellant, did not bring about any candid contradiction in her statement in order to disbelieve her deposition. The trial Court has also elaborately dealt with her deposition and found that the version of the prosecutrix was fully supported by the chemical analyst report, as well as, the medical evidence. 16. In such circumstances, the trial Court in our considered opinion rightly found the appellant guilty of the offences charged against him. The conclusion of the trial Court in having found the appellant guilty of offences under Sections 363 and 376 IPC was further upheld by the High Court by the impugned judgment. The High Court, however, found that the conviction for the offence under Section 506 IPC was not sufficiently supported by evidence and conviction and sentence for offence under Section 506 IPC was set aside. 17. Having perused the judgment of the High Court, we are also convinced that the said conclusion is also perfectly justified. 18. This Court in Lillualias Rajesh and another vs. State of Haryana reported in AIR 2013 SC 1784 , where one of us was a party, held in para 11 that: "11. In State of Punjab v. Ramdev Singh, AIR 2004 SC 1290 , this Court dealt with the issue and held that rape is violative of victims fundamental right under Article 21 of the Constitution. So, the Courts should deal with such cases sternly and severely. Sexual violence, apart from being a dehumanizing act, is an unlawful intrusion on the right of privacy and sanctity of a woman. It is a serious blow to her supreme honour and offends her self-esteem and dignity as well. It degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries, but leaves behind a scar on the most cherished position of a woman, i.e. her dignity, honour, reputation and chastity. Rape is not only an offence against the person of a woman, rather a crime against the entire society. It is a crime against basic human rights and also violates the most cherished fundamental right guaranteed under Article 21 of the Constitution." | 0[ds]10. We can also in this connection make a reference to a statutory provision contained in the Juvenile Justice (Care and Protection) Rules, 2007, whereunder Rule 12, the procedure to be followed in determining the age of a juvenile has been set out. We can usefully refer to the said provision in this context, inasmuch as under Rule 12 (3) of the said Rules, it is stated that in every case concerning a child or juvenile in conflict with law, the age determination enquiry shall be conducted by the Court or the Board or, as the case may be, by the committee by seeking evidence by obtaining:(a)(i) the matriculation or equivalent certificates, if available; and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school); first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat;11. Under Rule 12 (3) (b), it is specifically provided that only in the absence of alternative methods described under 12 (3) (a) (i) to (iii), the medical opinion can be sought for. In the light of such a statutory rule prevailing for ascertainment of the age of a juvenile, in our considered opinion, the same yardstick can be rightly followed by the Courts for the purpose of ascertaining the age of a victim as well.12. In the light of our above reasoning, in the case on hand, there were certificates issued by the school in which the prosecutrix did her Vth standard and in the school leaving certificate issued by the said school under Exhibit 54, the date of birth of the prosecutrix has been clearly noted as 20.05.1990, and this document was also proved byApart from the transfer certificate as well as the admission form maintained by the primary school Latur, where the prosecutrix had her initial education, also confirmed the date of birth as 20.5.1990. The reliance placed upon the said evidence by the Courts below to arrive at the age of the prosecutrix to hold that the prosecutrix was below 18 years of age at the time of the occurrence was perfectly justified and we do not find any good grounds to interfere with the same.13. Once the above position that the prosecutrix was a minor was found to be fully established, thereafter, the only other question that needs to be examined is as to the sexual assault alleged to have been committed by the appellant on her and whether such an allegation was satisfactorily established before the Courts below. In this respect, after the prosecutrix was found missing,after his initial search to trace his daughter, stated to have preferred missing report in Gandhi Chowk Police Station, alleging that she was missing along with gold ornaments valued at Rs.1 lakh. Thereafter, the search continued and that according to the prosecution the appellant himself brought back the prosecutrix to village Babhalgaon on 07.11.2005 whereafter the crime came to be registered as Crime No.219 of 2005. | 0 | 2,724 | 579 | ### Instruction:
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position that the prosecutrix was a minor was found to be fully established, thereafter, the only other question that needs to be examined is as to the sexual assault alleged to have been committed by the appellant on her and whether such an allegation was satisfactorily established before the Courts below. In this respect, after the prosecutrix was found missing, PW-1 after his initial search to trace his daughter, stated to have preferred missing report in Gandhi Chowk Police Station, alleging that she was missing along with gold ornaments valued at Rs.1 lakh. Thereafter, the search continued and that according to the prosecution the appellant himself brought back the prosecutrix to village Babhalgaon on 07.11.2005 whereafter the crime came to be registered as Crime No.219 of 2005. 14. After the prosecutrix was secured she was examined by PW-8, Dr. Aruna Varte on 10.11.2005 who issued the certificate Exhibit 43. As per the certificate Exhibit 43, PW-8 confirmed that hymen was old ruptured and that the prosecutrix was used for sexual intercourse. PW-8 confirmed Exhibit.43, medical certificate issued by her. PW-8 also confirmed that based on the chemical analysis report, she issued a medical certificate and confirmed the contents of the certificate Exhibit-43 wherein she had given the opinion that the prosecutirx was used for sexual intercourse. When the chemical analysis report was examined by the trial Court, the trial Court has referred to the contents of the chemical analysis report in Exhibits-60 and 61 and the same can be referred to which has been stated in paragraph 27. Para 27 reads as under: "27. C.A. report Ex.60 pertains to the Jangiya and petticoat of prosecutrix and nicker of accused and the result of its analysis shows that semen stains were found on Jangiya and petticoat of prosecutrix and nicker of accused and the blood group of said semen is AB. C.A. report Ex.61 pertains to the blood, vaginal swab and pubic hair of prosecutrix and the result of its analysis shows that no semen is detected on vaginal swab and pubic hair and blood group is B. C.A. report Ex.62 pertains to the semen, pubic hair and blood of accused and the result of analysis shows that the blood group of accused is AB; so also, no semen is detected on the pubic hair of accused. Now, from the aforesaid C.A. report, it transpired that the semen detected on Jangiya and petticoat of prosecutrix is of accused, because of blood group of accused as well as the blood group of semen found on the aforesaid clothes of prosecutrix is same. Therefore, these C.A. reports support to the prosecutrix to hold that the accused has committed rape on the prosecutrix."(Emphasis added) 15. Keeping the contents of the chemical analysis report, as noted by the Courts below in mind, when we consider the deposition of the prosecutrix PW-3, we find that she had narrated every minute detail as to how the appellant allured her by taking advantage of her contact with him while singing Bhajansongs, how he persuaded her by stating that recording of her Bhajans in audio cassette would enable her to earn tons of money and in that pretext also tempted her to take away the gold ornaments from the house worth Rs.1 lakh and thus gained her confidence to go along with him and misused his company by keeping her in a place at Karnool where she was not acquainted with the local language of Telugu and ultimately, abused her physically at least for more than for a month and twenty days. The vivid description of the behaviour of the appellant during the period when she was kept in his custody i.e., between 20.09.2005 to 07.11.2005, was clearly demonstrated by the prosecutrix and any amount of cross examination at the instance of the appellant, did not bring about any candid contradiction in her statement in order to disbelieve her deposition. The trial Court has also elaborately dealt with her deposition and found that the version of the prosecutrix was fully supported by the chemical analyst report, as well as, the medical evidence. 16. In such circumstances, the trial Court in our considered opinion rightly found the appellant guilty of the offences charged against him. The conclusion of the trial Court in having found the appellant guilty of offences under Sections 363 and 376 IPC was further upheld by the High Court by the impugned judgment. The High Court, however, found that the conviction for the offence under Section 506 IPC was not sufficiently supported by evidence and conviction and sentence for offence under Section 506 IPC was set aside. 17. Having perused the judgment of the High Court, we are also convinced that the said conclusion is also perfectly justified. 18. This Court in Lillualias Rajesh and another vs. State of Haryana reported in AIR 2013 SC 1784 , where one of us was a party, held in para 11 that: "11. In State of Punjab v. Ramdev Singh, AIR 2004 SC 1290 , this Court dealt with the issue and held that rape is violative of victims fundamental right under Article 21 of the Constitution. So, the Courts should deal with such cases sternly and severely. Sexual violence, apart from being a dehumanizing act, is an unlawful intrusion on the right of privacy and sanctity of a woman. It is a serious blow to her supreme honour and offends her self-esteem and dignity as well. It degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries, but leaves behind a scar on the most cherished position of a woman, i.e. her dignity, honour, reputation and chastity. Rape is not only an offence against the person of a woman, rather a crime against the entire society. It is a crime against basic human rights and also violates the most cherished fundamental right guaranteed under Article 21 of the Constitution."
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10. We can also in this connection make a reference to a statutory provision contained in the Juvenile Justice (Care and Protection) Rules, 2007, whereunder Rule 12, the procedure to be followed in determining the age of a juvenile has been set out. We can usefully refer to the said provision in this context, inasmuch as under Rule 12 (3) of the said Rules, it is stated that in every case concerning a child or juvenile in conflict with law, the age determination enquiry shall be conducted by the Court or the Board or, as the case may be, by the committee by seeking evidence by obtaining:(a)(i) the matriculation or equivalent certificates, if available; and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school); first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat;11. Under Rule 12 (3) (b), it is specifically provided that only in the absence of alternative methods described under 12 (3) (a) (i) to (iii), the medical opinion can be sought for. In the light of such a statutory rule prevailing for ascertainment of the age of a juvenile, in our considered opinion, the same yardstick can be rightly followed by the Courts for the purpose of ascertaining the age of a victim as well.12. In the light of our above reasoning, in the case on hand, there were certificates issued by the school in which the prosecutrix did her Vth standard and in the school leaving certificate issued by the said school under Exhibit 54, the date of birth of the prosecutrix has been clearly noted as 20.05.1990, and this document was also proved byApart from the transfer certificate as well as the admission form maintained by the primary school Latur, where the prosecutrix had her initial education, also confirmed the date of birth as 20.5.1990. The reliance placed upon the said evidence by the Courts below to arrive at the age of the prosecutrix to hold that the prosecutrix was below 18 years of age at the time of the occurrence was perfectly justified and we do not find any good grounds to interfere with the same.13. Once the above position that the prosecutrix was a minor was found to be fully established, thereafter, the only other question that needs to be examined is as to the sexual assault alleged to have been committed by the appellant on her and whether such an allegation was satisfactorily established before the Courts below. In this respect, after the prosecutrix was found missing,after his initial search to trace his daughter, stated to have preferred missing report in Gandhi Chowk Police Station, alleging that she was missing along with gold ornaments valued at Rs.1 lakh. Thereafter, the search continued and that according to the prosecution the appellant himself brought back the prosecutrix to village Babhalgaon on 07.11.2005 whereafter the crime came to be registered as Crime No.219 of 2005.
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Mukul Harkisondass Dalal Vs. Jayesh Ramniklal, Doshi | and the appeal in the High Court ended in dismissal and in accordance with the provisions of sub-section (2) of section 283 of the Companies Act, the adjudication became effective when the appellant failed to file special leave petition against the order dated June 7, 1989, of the appellate court within a period of seven days from the date of the order. The plaintiff claimed that the order of insolvency stood discharged only on September 30, 1990, by reason of payment by the appellant to the creditor in accordance with the order of the Supreme Court but the order of discharge passed by the Supreme Court does not amount to setting aside the order of adjudication, with the consequence that during the interregnum, i. e. , after expiry of seven days from the dismissal of the appeal by the High Court and the final order of the Supreme Court, the appellant should be treated as being an insolvent.( 5 ) AFTER the institution of the suit, the plaintiff took out Notice of Motion No. 1802 of 1991 seeking interim relief of injunction restraining the appellant from holding himself out or performing any act, function or duty as director or managing director and also from receiving any salary, perquisites, benefits or privileges from the company in that capacity. The motion was resisted by the appellant by pointing out that the order of adjudication stands wiped out in view of the decision of the Supreme Court and the claim of the plaintiff that during the interregnum the appellant was insolvent cannot be accepted. The appellant also pointed out that the reliance upon the provisions of sub-section (2) of section 283 of the Act is totally inappropriate. The trial judge by the impugned order accepted the contention of the appellant that the provisions of sub-section (2) of section 283 of the Act are not attracted but proceeded to grant injunction as sought for on the ground that the order of the Supreme Court does not wipe out the effect of adjudication but merely discharges the appellant as insolvent as contemplated under section 38 of the Presidency Towns Insolvency Act, 1909. The order of the trial judge is under challenge. ( 6 ) SHRI Makhija, learned counsel appearing on behalf of the appellant, submitted that the trial judge has completely missed the point and had proceeded on a wrong assumption that the order passed by the Supreme Court is one of discharge as contemplated under section 38 of the presidency Towns Insolvency Act. Learned counsel urged that the trial judge was carried away by the use of expression "discharge" in the order of the Supreme Court overlooking that the expression was not used as understood under section 38 but as meaning setting aside the order of insolvency. Shri Makhija pointed out that the Supreme Court observed that on payment of money by the appellant to the creditor, the insolvency proceedings stand discharged. The use of the expression "insolvency proceedings" as distinguished from the expression "insolvent" has gone unnoticed, says Shri Makhija, by the trial judge. We find considerable merit in the submission of learned counsel. The plain reading of the order of the Supreme Court leaves no manner of doubt that the following sentence was clearly misunderstood by the learned trial judge : "on payment of the aforesaid money, the insolvency proceedings will stand discharged. "( 7 ) IT is obvious that the Supreme Court provided that the order of adjudication passed by the trial judge and confirmed by the appeal court will stand set aside on payment of the amount as directed by the Supreme Court. The Supreme Court was not contemplating passing an order of discharge as prescribed under section 38 of the Act. Sub-section (1) of section 38 of the Act provides that the insolvent may, at any time after the order of adjudication, apply to the court for an order of discharge, and then provides the manner of hearing of such application. Sub-section (2) confers power upon the court to pass an absolute order of discharge or a conditional order of discharge after taking into consideration the report of the official assignee as to the insolvents conduct and affairs. It is not even the claim of the original plaintiff that the official assignee has made any report or the Supreme Court was passing the order of discharge of the insolvent on such report. The trial judge, with respect, has misread the order of the Supreme Court and proceeded to observe that as the order of adjudication was not found to be illegal or erroneous by the Supreme Court, the order of discharge passed by the Supreme Court must be one as contemplated under section 38 of the Act. The trial judge, with respect, has misconstrued the order passed by the Supreme Court and proceeded to grant injunction on the basis that the appellant was adjudicated as insolvent. The reference to the provisions of section 267 of the companies Act to hold against the appellant is clearly erroneous. ( 8 ) SECTION 267 of the Companies Act, inter alia, provides that certain persons should not be appointed as managing directors or whole time directors and includes a person who has been a discharged insolvent or has at any time been adjudged as insolvent. The trial judge felt that the appellant should be treated as being adjudged "insolvent" during the interregnum between the order of the appellate court and the order of the Supreme Court. In our judgment, the reasoning and the conclusion is entirely erroneous and grant of injunction was uncalled for. The result of the finding of the trial judge is that although the insolvency proceedings are set aside, the appellant will be treated as being adjudged insolvent for his entire life. It is impossible to put such a construction on the order of the Supreme Court as it would lead to unusual results. In our judgment, the impugned order cannot be sustained and the grant of injunction was inappropriate. | 1[ds]The decision of the trial judge is reported in Jayesh Ramniklal Doshi v. Carbon Corporation Ltd. [1992] MLJ 1316 ; [1993] 76 Comp Cas 748 (Bom ). We are unable to agree with the view taken by the learned judge and the impugned order is required to be setfind considerable merit in the submission of learned counsel. The plain reading of the order of the Supreme Court leaves no manner of doubt that the following sentence was clearly misunderstood by the learned trial judge : "on payment of the aforesaid money, the insolvency proceedings will stand discharged. "( 7 ) IT is obvious that the Supreme Court provided that the order of adjudication passed by the trial judge and confirmed by the appeal court will stand set aside on payment of the amount as directed by the Supreme Court. The Supreme Court was not contemplating passing an order of discharge as prescribed under section 38 of the Act.(1) of section 38 of the Act provides that the insolvent may, at any time after the order of adjudication, apply to the court for an order of discharge, and then provides the manner of hearing of such application.(2) confers power upon the court to pass an absolute order of discharge or a conditional order of discharge after taking into consideration the report of the official assignee as to the insolvents conduct and affairs. It is not even the claim of the original plaintiff that the official assignee has made any report or the Supreme Court was passing the order of discharge of the insolvent on such report. The trial judge, with respect, has misread the order of the Supreme Court and proceeded to observe that as the order of adjudication was not found to be illegal or erroneous by the Supreme Court, the order of discharge passed by the Supreme Court must be one as contemplated under section 38 of the Act. The trial judge, with respect, has misconstrued the order passed by the Supreme Court and proceeded to grant injunction on the basis that the appellant was adjudicated as insolvent. The reference to the provisions of section 267 of the companies Act to hold against the appellant is clearly8 ) SECTION 267 of the Companies Act, inter alia, provides that certain persons should not be appointed as managing directors or whole time directors and includes a person who has been a discharged insolvent or has at any time been adjudged as insolvent. The trial judge felt that the appellant should be treated as being adjudged "insolvent" during the interregnum between the order of the appellate court and the order of the Supreme Court. In our judgment, the reasoning and the conclusion is entirely erroneous and grant of injunction was uncalled for. The result of the finding of the trial judge is that although the insolvency proceedings are set aside, the appellant will be treated as being adjudged insolvent for his entire life. It is impossible to put such a construction on the order of the Supreme Court as it would lead to unusual results. In our judgment, the impugned order cannot be sustained and the grant of injunction was inappropriate. | 1 | 1,889 | 579 | ### Instruction:
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and the appeal in the High Court ended in dismissal and in accordance with the provisions of sub-section (2) of section 283 of the Companies Act, the adjudication became effective when the appellant failed to file special leave petition against the order dated June 7, 1989, of the appellate court within a period of seven days from the date of the order. The plaintiff claimed that the order of insolvency stood discharged only on September 30, 1990, by reason of payment by the appellant to the creditor in accordance with the order of the Supreme Court but the order of discharge passed by the Supreme Court does not amount to setting aside the order of adjudication, with the consequence that during the interregnum, i. e. , after expiry of seven days from the dismissal of the appeal by the High Court and the final order of the Supreme Court, the appellant should be treated as being an insolvent.( 5 ) AFTER the institution of the suit, the plaintiff took out Notice of Motion No. 1802 of 1991 seeking interim relief of injunction restraining the appellant from holding himself out or performing any act, function or duty as director or managing director and also from receiving any salary, perquisites, benefits or privileges from the company in that capacity. The motion was resisted by the appellant by pointing out that the order of adjudication stands wiped out in view of the decision of the Supreme Court and the claim of the plaintiff that during the interregnum the appellant was insolvent cannot be accepted. The appellant also pointed out that the reliance upon the provisions of sub-section (2) of section 283 of the Act is totally inappropriate. The trial judge by the impugned order accepted the contention of the appellant that the provisions of sub-section (2) of section 283 of the Act are not attracted but proceeded to grant injunction as sought for on the ground that the order of the Supreme Court does not wipe out the effect of adjudication but merely discharges the appellant as insolvent as contemplated under section 38 of the Presidency Towns Insolvency Act, 1909. The order of the trial judge is under challenge. ( 6 ) SHRI Makhija, learned counsel appearing on behalf of the appellant, submitted that the trial judge has completely missed the point and had proceeded on a wrong assumption that the order passed by the Supreme Court is one of discharge as contemplated under section 38 of the presidency Towns Insolvency Act. Learned counsel urged that the trial judge was carried away by the use of expression "discharge" in the order of the Supreme Court overlooking that the expression was not used as understood under section 38 but as meaning setting aside the order of insolvency. Shri Makhija pointed out that the Supreme Court observed that on payment of money by the appellant to the creditor, the insolvency proceedings stand discharged. The use of the expression "insolvency proceedings" as distinguished from the expression "insolvent" has gone unnoticed, says Shri Makhija, by the trial judge. We find considerable merit in the submission of learned counsel. The plain reading of the order of the Supreme Court leaves no manner of doubt that the following sentence was clearly misunderstood by the learned trial judge : "on payment of the aforesaid money, the insolvency proceedings will stand discharged. "( 7 ) IT is obvious that the Supreme Court provided that the order of adjudication passed by the trial judge and confirmed by the appeal court will stand set aside on payment of the amount as directed by the Supreme Court. The Supreme Court was not contemplating passing an order of discharge as prescribed under section 38 of the Act. Sub-section (1) of section 38 of the Act provides that the insolvent may, at any time after the order of adjudication, apply to the court for an order of discharge, and then provides the manner of hearing of such application. Sub-section (2) confers power upon the court to pass an absolute order of discharge or a conditional order of discharge after taking into consideration the report of the official assignee as to the insolvents conduct and affairs. It is not even the claim of the original plaintiff that the official assignee has made any report or the Supreme Court was passing the order of discharge of the insolvent on such report. The trial judge, with respect, has misread the order of the Supreme Court and proceeded to observe that as the order of adjudication was not found to be illegal or erroneous by the Supreme Court, the order of discharge passed by the Supreme Court must be one as contemplated under section 38 of the Act. The trial judge, with respect, has misconstrued the order passed by the Supreme Court and proceeded to grant injunction on the basis that the appellant was adjudicated as insolvent. The reference to the provisions of section 267 of the companies Act to hold against the appellant is clearly erroneous. ( 8 ) SECTION 267 of the Companies Act, inter alia, provides that certain persons should not be appointed as managing directors or whole time directors and includes a person who has been a discharged insolvent or has at any time been adjudged as insolvent. The trial judge felt that the appellant should be treated as being adjudged "insolvent" during the interregnum between the order of the appellate court and the order of the Supreme Court. In our judgment, the reasoning and the conclusion is entirely erroneous and grant of injunction was uncalled for. The result of the finding of the trial judge is that although the insolvency proceedings are set aside, the appellant will be treated as being adjudged insolvent for his entire life. It is impossible to put such a construction on the order of the Supreme Court as it would lead to unusual results. In our judgment, the impugned order cannot be sustained and the grant of injunction was inappropriate.
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1
### Explanation:
The decision of the trial judge is reported in Jayesh Ramniklal Doshi v. Carbon Corporation Ltd. [1992] MLJ 1316 ; [1993] 76 Comp Cas 748 (Bom ). We are unable to agree with the view taken by the learned judge and the impugned order is required to be setfind considerable merit in the submission of learned counsel. The plain reading of the order of the Supreme Court leaves no manner of doubt that the following sentence was clearly misunderstood by the learned trial judge : "on payment of the aforesaid money, the insolvency proceedings will stand discharged. "( 7 ) IT is obvious that the Supreme Court provided that the order of adjudication passed by the trial judge and confirmed by the appeal court will stand set aside on payment of the amount as directed by the Supreme Court. The Supreme Court was not contemplating passing an order of discharge as prescribed under section 38 of the Act.(1) of section 38 of the Act provides that the insolvent may, at any time after the order of adjudication, apply to the court for an order of discharge, and then provides the manner of hearing of such application.(2) confers power upon the court to pass an absolute order of discharge or a conditional order of discharge after taking into consideration the report of the official assignee as to the insolvents conduct and affairs. It is not even the claim of the original plaintiff that the official assignee has made any report or the Supreme Court was passing the order of discharge of the insolvent on such report. The trial judge, with respect, has misread the order of the Supreme Court and proceeded to observe that as the order of adjudication was not found to be illegal or erroneous by the Supreme Court, the order of discharge passed by the Supreme Court must be one as contemplated under section 38 of the Act. The trial judge, with respect, has misconstrued the order passed by the Supreme Court and proceeded to grant injunction on the basis that the appellant was adjudicated as insolvent. The reference to the provisions of section 267 of the companies Act to hold against the appellant is clearly8 ) SECTION 267 of the Companies Act, inter alia, provides that certain persons should not be appointed as managing directors or whole time directors and includes a person who has been a discharged insolvent or has at any time been adjudged as insolvent. The trial judge felt that the appellant should be treated as being adjudged "insolvent" during the interregnum between the order of the appellate court and the order of the Supreme Court. In our judgment, the reasoning and the conclusion is entirely erroneous and grant of injunction was uncalled for. The result of the finding of the trial judge is that although the insolvency proceedings are set aside, the appellant will be treated as being adjudged insolvent for his entire life. It is impossible to put such a construction on the order of the Supreme Court as it would lead to unusual results. In our judgment, the impugned order cannot be sustained and the grant of injunction was inappropriate.
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Kashinath Bhaskar Datar Vs. Bhaskar Vishweshwar Karve | by either S. 92 proviso 4 of the Evidence Act or S. 17 (1) (b) of the Registration Act, but that does not matter because the present document varies even that agreement and substitutes a third agreement in its place, namely that payment of Rs. 1,800 by instalments at the rate of Rs. 80 a month will effect "payment in full", that is to say, will extinguish the mortgage. This speaks from the date of the document for it says, referring to this agreement that "it is settled" etc.14. Next we come to Cl. (3). That refers us back to clauses (5) and (6) and says that"as mentioned there no interest of any nature whatever has remained claimable by me."and speaking of the principal says"and in lake manner I understand the whole of the principal has been fully paid."We have already dealt with clauses (5) and (6). Clause (8) carries us no further an merely states that because of clauses (5) and (6) neither interest nor principal is now claimable; and of course if neither interest nor principal is claimable that extinguishes the mortgage, and in this case the extinguishment is brought about not by mere payment in accordance with the terms of the bond, but because of the fresh agreement.15. Clause (10) remains for consideration. It was urged that this brings the matter within S. 17 (2) (v), Registration Act, because it gives the defendant the right to obtain another document which will effect the extinguishment. We do not agree because clause (v) of sub-s. (2) of S. 17 of the Act postulates that the document shall not of itself create, declare, assign, limit, extinguish any right etc., and that it shall merely create a right to obtain another document etc.(The stress is on the words "itself" and "merely".)16. We agree with Sir Dinsha Mulla at p. 86 of the 5th edition of his Indian Registration Act that"If the document itself creates an interest in immovable property, the fact that it contemplates the execution of another document will not exempt it from registration under this clause."As we have seen, this document of itself limits or extinguishes certain interests in the mortgaged property. The operative words are reasonably clear. Consequently, the document is not one which merely confers a right to obtain another document. If confers the right only in certain contingencies, namely, "if you so wish" or "if necessity may arise." Its purport is to effect an immediate alteration in the terms of the two bonds and because of that alteration to effect an immediate extinguishment an limitation. Clause 10 merely confers an additional right, namely the right to obtain another document "if you so wish" or "if necessity may arise." Therefore, the document in question is now one which merely creates a right to obtain another.17. An agreement to sell, or an agreement to transfer as some future date, is to be distinguished because that sort of document does not of itself purport to effect the transfer. It merely embodies a present agreement to execute another document in the future which will, when executed, have that effect. The document in hand is not of that type. It does not postpone the effect of extinguishment or limitation of the mortgages to a future date. It does not say that the agreement it embodies shall take effect in the future. It purports to limit and extinguish the liabilities on the mortgages at once by virtue of the document itself and merely adds that "if it is necessary or should you want another document. I will repeat the present agreement in a registered agreement." By implication it means that if it is not necessary or if the mortgagor does not want a registered instrument the document itself will have effect. Incidentally, one effect of holding that this document does not limit or extinguish the mortgagors liability would be that there is no agreement to that effect yet in force. This may or may not give the mortgagor a right to obtain specific performance of his right to obtain such an agreement but until he does that there would be no bar to the mortgagees claim in this suit. However, it is not necessary to go as far as that because we are of opinion that thus document is not exempt from registration under S. 17 (2) (v), and we so hold.18. The next question is whether the document can be used in evidence under the proviso to S. 49. Registration Act. We are clear it cannot. This is not a suit for specific performance nor does any question of part performance under S. 53A, T. P. Act. arise. It remains then to be seen whether the use now sought to be made of the document is to evidence of collateral transaction no required to be evidenced by a registered instrument. But what is the transaction sought to be proved but the very agreement which the document not merely evidences but, by reason of its own force, creates? That is not a collateral transaction and even if it were a transaction of that type, it would require a registered instrument for the reasons we have already given.19. Section 53A, T. P. Act was referred to but it has no application for the agreement we are concerned with is not a transfer. There are no words of conveyance in it also the mortgagor is not continuing in possession in part performance of the contract. Both mortgages were simple and the right to possession never resided in the mortgagee. He might in due course have acquired it by process of law, if he obtained a decree and purchased at the sale; on the other hand, a stranger might have purchased and the right to possession would in that event have passed elsewhere. But he had no right to possession at the date of the agreement and having none he could not have transferred it. The mortgagors possession was consequently not referable to the agreement. | 0[ds]We are of opinion it does. We agree with the learned Rangoon Judges inU. P. Thin v. Official Assignee, 1938 Rang. L. R. 293 : A. I. R. R. 1938 Rang 285 that one part of the "interest" which a mortgagee has in mortgaged property is the right to receive interest at a certain rate when the document provides for interest. If that rate is varied, whether to his advantage or otherwise, then, in our judgment his "interest" in the property is affected. If the subsequent agreement substitutes a higher rate, then to the extent of the difference it "creates" a fresh "interest" which was not there before. If the rate is lowered, then his original "interest" is limited.We do not agree. There is a difference between a receipt and a remission or a release. A receipt is not the payment, nor does the document in such a case serve to extinguish the mortgage or limit the liability. It is the payment of the money which does that and the receipt does no more than evidence the fact. Not so a release. The extinguishment or diminution of liability is in that event effected by the agreement itself and not by something external to it. If the agreement is oral, it is hit by proviso 4 to S. 92, Evidence Act, for it "rescinds" or "modifies" the contract of mortgage. If it is in writing, it is hit by S. 17 (1) (b), Registration Act, for in that case the writing itself "limits" or "extinguishes" the liability under theis to be observed that when the mortgagor pays money due on the mortgage, in whole or in part, he is carrying out the terms of the bond and is not making any alteration in it, and even though the fact of payment may limit or extinguish the mortgagees interest that is only because the bond is working itself out by the force of its own terms and not by reason of some new agreement which seeks to modify it or limit or extinguish the interest which it creates. A simple test is this : see whether the mortgagee can, in the face of the subsequent agreement, enforce the terms of his bond. If he cannot, then it is plain that the subsequent undertaking has effected a modification, and if that has the effect of limiting or extinguishing the mortgagees interest it is at once hit either by S. 17 (1) (b) or S. 92But when there is a mere payment of money, that is done under the terms of the bond, for the contract of mortgage postulates that the mortgagor should repay the money borrowed and that when he does so the mortgagees interest in the property shall be "limited" to the extent of the repayment or, when all is repaid, be wholly extinguished; nor of course, does a payment have to be made by a written or registered instrument or even evidenced by one. Clause (xi) to S. 17 (2), Registration Act is based on this principle. It draws a distinction between a document which, by the force of its terms, effects the extinguishment, or purports to do so, and one which merely evidences an external fact which brings about that resultNow apply the test just given to the present case. Under the mortgages the mortgagee is entitled to interest at 14 annas per cent. per month but the mortgagor says be cannot claim that. Why? Because, according to him, the subsequent agreement altered the terms of the bond and reduced his liability to only 8 annas. It hardly matters what the agreement is called, whether a release or a remission, nor is it germane to the question that the mortgagee is entitled to remit or release the whole or a part of the debt; the fact remains that his agreement to do so effects and alteration in the original contract and by the force of its terms limits or extinguishes his interest. Assume that the mortgagor repaid the whole of the interest at the altered rate and the whole of the principal, would those repayments by themselves effect an extinguishment of the mortgage? Clearly not, because unless the subsequent agreement is called in aid, more would be due under the terms of the bond on account of the higher rate of interest. It is evident then that it is the agreement which limits the mortgagees interest and serves to extinguish the mortgage and not mere payment at the reduced rate.13. Similar observations apply to clause (6) of the agreement. It begins by reciting a past agreement in which the mortgagor had promised to pay Rs. 1,800 in a lump sum. We are left to infer that this was to extinguish the mortgage. If it was, then it would be hit by either S. 92 proviso 4 of the Evidence Act or S. 17 (1) (b) of the Registration Act, but that does not matter because the present document varies even that agreement and substitutes a third agreement in its place, namely that payment of Rs. 1,800 by instalments at the rate of Rs. 80 a month will effect "payment in full", that is to say, will extinguish the mortgage. This speaks from the date of the document for it says, referring to this agreement that "it is settled"do not agree because clause (v) of sub-s. (2) of S. 17 of the Act postulates that the document shall not of itself create, declare, assign, limit, extinguish any right etc., and that it shall merely create a right to obtain another documentare clear it cannot. This is not a suit for specific performance nor does any question of part performance under S. 53A, T. P. Act. arise. It remains then to be seen whether the use now sought to be made of the document is to evidence of collateral transaction no required to be evidenced by a registered instrument. But what is the transaction sought to be proved but the very agreement which the document not merely evidences but, by reason of its own force, creates? That is not a collateral transaction and even if it were a transaction of that type, it would require a registered instrument for the reasons we have already given.Section 53A, T. P. Act was referred to but it has no application for the agreement we are concerned with is not a transfer. There are no words of conveyance in it also the mortgagor is not continuing in possession in part performance of the contract. Both mortgages were simple and the right to possession never resided in the mortgagee. He might in due course have acquired it by process of law, if he obtained a decree and purchased at the sale; on the other hand, a stranger might have purchased and the right to possession would in that event have passed elsewhere. But he had no right to possession at the date of the agreement and having none he could not have transferred it. The mortgagors possession was consequently not referable to the agreement. | 0 | 3,483 | 1,333 | ### Instruction:
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by either S. 92 proviso 4 of the Evidence Act or S. 17 (1) (b) of the Registration Act, but that does not matter because the present document varies even that agreement and substitutes a third agreement in its place, namely that payment of Rs. 1,800 by instalments at the rate of Rs. 80 a month will effect "payment in full", that is to say, will extinguish the mortgage. This speaks from the date of the document for it says, referring to this agreement that "it is settled" etc.14. Next we come to Cl. (3). That refers us back to clauses (5) and (6) and says that"as mentioned there no interest of any nature whatever has remained claimable by me."and speaking of the principal says"and in lake manner I understand the whole of the principal has been fully paid."We have already dealt with clauses (5) and (6). Clause (8) carries us no further an merely states that because of clauses (5) and (6) neither interest nor principal is now claimable; and of course if neither interest nor principal is claimable that extinguishes the mortgage, and in this case the extinguishment is brought about not by mere payment in accordance with the terms of the bond, but because of the fresh agreement.15. Clause (10) remains for consideration. It was urged that this brings the matter within S. 17 (2) (v), Registration Act, because it gives the defendant the right to obtain another document which will effect the extinguishment. We do not agree because clause (v) of sub-s. (2) of S. 17 of the Act postulates that the document shall not of itself create, declare, assign, limit, extinguish any right etc., and that it shall merely create a right to obtain another document etc.(The stress is on the words "itself" and "merely".)16. We agree with Sir Dinsha Mulla at p. 86 of the 5th edition of his Indian Registration Act that"If the document itself creates an interest in immovable property, the fact that it contemplates the execution of another document will not exempt it from registration under this clause."As we have seen, this document of itself limits or extinguishes certain interests in the mortgaged property. The operative words are reasonably clear. Consequently, the document is not one which merely confers a right to obtain another document. If confers the right only in certain contingencies, namely, "if you so wish" or "if necessity may arise." Its purport is to effect an immediate alteration in the terms of the two bonds and because of that alteration to effect an immediate extinguishment an limitation. Clause 10 merely confers an additional right, namely the right to obtain another document "if you so wish" or "if necessity may arise." Therefore, the document in question is now one which merely creates a right to obtain another.17. An agreement to sell, or an agreement to transfer as some future date, is to be distinguished because that sort of document does not of itself purport to effect the transfer. It merely embodies a present agreement to execute another document in the future which will, when executed, have that effect. The document in hand is not of that type. It does not postpone the effect of extinguishment or limitation of the mortgages to a future date. It does not say that the agreement it embodies shall take effect in the future. It purports to limit and extinguish the liabilities on the mortgages at once by virtue of the document itself and merely adds that "if it is necessary or should you want another document. I will repeat the present agreement in a registered agreement." By implication it means that if it is not necessary or if the mortgagor does not want a registered instrument the document itself will have effect. Incidentally, one effect of holding that this document does not limit or extinguish the mortgagors liability would be that there is no agreement to that effect yet in force. This may or may not give the mortgagor a right to obtain specific performance of his right to obtain such an agreement but until he does that there would be no bar to the mortgagees claim in this suit. However, it is not necessary to go as far as that because we are of opinion that thus document is not exempt from registration under S. 17 (2) (v), and we so hold.18. The next question is whether the document can be used in evidence under the proviso to S. 49. Registration Act. We are clear it cannot. This is not a suit for specific performance nor does any question of part performance under S. 53A, T. P. Act. arise. It remains then to be seen whether the use now sought to be made of the document is to evidence of collateral transaction no required to be evidenced by a registered instrument. But what is the transaction sought to be proved but the very agreement which the document not merely evidences but, by reason of its own force, creates? That is not a collateral transaction and even if it were a transaction of that type, it would require a registered instrument for the reasons we have already given.19. Section 53A, T. P. Act was referred to but it has no application for the agreement we are concerned with is not a transfer. There are no words of conveyance in it also the mortgagor is not continuing in possession in part performance of the contract. Both mortgages were simple and the right to possession never resided in the mortgagee. He might in due course have acquired it by process of law, if he obtained a decree and purchased at the sale; on the other hand, a stranger might have purchased and the right to possession would in that event have passed elsewhere. But he had no right to possession at the date of the agreement and having none he could not have transferred it. The mortgagors possession was consequently not referable to the agreement.
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fact. Not so a release. The extinguishment or diminution of liability is in that event effected by the agreement itself and not by something external to it. If the agreement is oral, it is hit by proviso 4 to S. 92, Evidence Act, for it "rescinds" or "modifies" the contract of mortgage. If it is in writing, it is hit by S. 17 (1) (b), Registration Act, for in that case the writing itself "limits" or "extinguishes" the liability under theis to be observed that when the mortgagor pays money due on the mortgage, in whole or in part, he is carrying out the terms of the bond and is not making any alteration in it, and even though the fact of payment may limit or extinguish the mortgagees interest that is only because the bond is working itself out by the force of its own terms and not by reason of some new agreement which seeks to modify it or limit or extinguish the interest which it creates. A simple test is this : see whether the mortgagee can, in the face of the subsequent agreement, enforce the terms of his bond. If he cannot, then it is plain that the subsequent undertaking has effected a modification, and if that has the effect of limiting or extinguishing the mortgagees interest it is at once hit either by S. 17 (1) (b) or S. 92But when there is a mere payment of money, that is done under the terms of the bond, for the contract of mortgage postulates that the mortgagor should repay the money borrowed and that when he does so the mortgagees interest in the property shall be "limited" to the extent of the repayment or, when all is repaid, be wholly extinguished; nor of course, does a payment have to be made by a written or registered instrument or even evidenced by one. Clause (xi) to S. 17 (2), Registration Act is based on this principle. It draws a distinction between a document which, by the force of its terms, effects the extinguishment, or purports to do so, and one which merely evidences an external fact which brings about that resultNow apply the test just given to the present case. Under the mortgages the mortgagee is entitled to interest at 14 annas per cent. per month but the mortgagor says be cannot claim that. Why? Because, according to him, the subsequent agreement altered the terms of the bond and reduced his liability to only 8 annas. It hardly matters what the agreement is called, whether a release or a remission, nor is it germane to the question that the mortgagee is entitled to remit or release the whole or a part of the debt; the fact remains that his agreement to do so effects and alteration in the original contract and by the force of its terms limits or extinguishes his interest. Assume that the mortgagor repaid the whole of the interest at the altered rate and the whole of the principal, would those repayments by themselves effect an extinguishment of the mortgage? Clearly not, because unless the subsequent agreement is called in aid, more would be due under the terms of the bond on account of the higher rate of interest. It is evident then that it is the agreement which limits the mortgagees interest and serves to extinguish the mortgage and not mere payment at the reduced rate.13. Similar observations apply to clause (6) of the agreement. It begins by reciting a past agreement in which the mortgagor had promised to pay Rs. 1,800 in a lump sum. We are left to infer that this was to extinguish the mortgage. If it was, then it would be hit by either S. 92 proviso 4 of the Evidence Act or S. 17 (1) (b) of the Registration Act, but that does not matter because the present document varies even that agreement and substitutes a third agreement in its place, namely that payment of Rs. 1,800 by instalments at the rate of Rs. 80 a month will effect "payment in full", that is to say, will extinguish the mortgage. This speaks from the date of the document for it says, referring to this agreement that "it is settled"do not agree because clause (v) of sub-s. (2) of S. 17 of the Act postulates that the document shall not of itself create, declare, assign, limit, extinguish any right etc., and that it shall merely create a right to obtain another documentare clear it cannot. This is not a suit for specific performance nor does any question of part performance under S. 53A, T. P. Act. arise. It remains then to be seen whether the use now sought to be made of the document is to evidence of collateral transaction no required to be evidenced by a registered instrument. But what is the transaction sought to be proved but the very agreement which the document not merely evidences but, by reason of its own force, creates? That is not a collateral transaction and even if it were a transaction of that type, it would require a registered instrument for the reasons we have already given.Section 53A, T. P. Act was referred to but it has no application for the agreement we are concerned with is not a transfer. There are no words of conveyance in it also the mortgagor is not continuing in possession in part performance of the contract. Both mortgages were simple and the right to possession never resided in the mortgagee. He might in due course have acquired it by process of law, if he obtained a decree and purchased at the sale; on the other hand, a stranger might have purchased and the right to possession would in that event have passed elsewhere. But he had no right to possession at the date of the agreement and having none he could not have transferred it. The mortgagors possession was consequently not referable to the agreement.
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ARNAB RANJAN GOSWAMI Vs. UNION OF INDIA & ORS | Nath Mahato v. T. Ganguly, (1972) 1 SCC 450 : 1972 SCC (Cri) 206 ] , is a matter of judicial determination and before issuing a process, the Magistrate has to examine the complainant. In Punjab National Bank v. Surendra Prasad Sinha [Punjab National Bank v. Surendra Prasad Sinha, 1993 Supp (1) SCC 499 : 1993 SCC (Cri) 149 ] it has been held that judicial process should not be an instrument of oppression or needless harassment. The Court, though in a different context, has observed that there lies responsibility and duty on the Magistracy to find whether the accused concerned should be legally responsible for the offence charged for. Only on satisfying that the law casts liability or creates offence against the juristic person or the persons impleaded, then only process would be issued. At that stage the court would be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complaint as vendetta to harass the persons needlessly. Vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance. In Pepsi Foods Ltd. v. Special Judicial Magistrate [Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749 : 1998 SCC (Cri) 1400 ] , a two-Judge Bench has held that summoning of an accused in a criminal case is a serious matter and criminal law cannot be set into motion as a matter of course. 47. In view of the clear legal position, Mr Kapil Sibal, learned Senior Counsel appearing on behalf of the State of Maharashtra has fairly stated that the FIR which is under investigation at the NM Joshi Marg Police Station in Mumbai does not and cannot cover any alleged act of criminal defamation. We will clarify this in our final directions. 48. Before we conclude, it is necessary to advert to the interim order of this Court dated 24 April 2020. By the interim order, the petitioner has been granted liberty to move the competent court in order to espouse the remedies available under the CrPC. Hence, we clarify that this court has not in the present judgment expressed any opinion on the FIR which is under investigation at the NM Joshi Marg Police Station in Mumbai. 49. We hold that it would be inappropriate for the court to exercise its jurisdiction under Article 32 of the Constitution for the purpose of quashing FIR 164 of 2020 under investigation at the NM Joshi Marg Police Station in Mumbai. In adopting this view, we are guided by the fact that the checks and balances to ensure the protection of the petitioner?s liberty are governed by the CrPC. Despite the liberty being granted to the petitioner on 24 April 2020, it is an admitted position that the petitioner did not pursue available remedies in the law, but sought instead to invoke the jurisdiction of this Court. Whether the allegations contained in the FIR do or do not make out any offence as alleged will not be decided in pursuance of the jurisdiction of this Court under Article 32, to quash the FIR. The petitioner must be relegated to the pursuit of the remedies available under the CrPC, which we hereby do. The petitioner has an equally efficacious remedy available before the High Court. We should not be construed as holding that a petition under Article 32 is not maintainable. But when the High Court has the power under Section 482, there is no reason to by-pass the procedure under the CrPC, we see no exceptional grounds or reasons to entertain this petition under Article 32. There is a clear distinction between the maintainability of a petition and whether it should be entertained. In a situation like this, and for the reasons stated hereinabove, this Court would not like to entertain the petition under Article 32 for the relief of quashing the FIR being investigated at the NM Joshi Police Station in Mumbai which can be considered by the High Court. Therefore, we are of the opinion that the petitioner must be relegated to avail of the remedies which are available under the CrPC before the competent court including the High Court. 50. By the order of this Court dated 24 April 2020, the petitioner was protected against coercive steps for a period of three weeks. The period which was due to expire on 14 May 2020 was extended, when judgment was reserved on 11 May 2020, pending the decision of this Court. We are inclined to extend that protection for a further period of three weeks, particularly having regard to the outbreak of Covid-19, so as to leave adequate time to the petitioner to pursue his remedies before the competent forum. 51. As we have noted earlier, multiple FIRs and complaints have been filed against the petitioner in several states and in the Union Territories of Jammu and Kashmir. By the interim order of this Court dated 24 April 2020, further steps in regard to all the complaints and FIRs, save and except for the investigation of the FIR lodged at Police Station Sadar, District Nagpur City were stayed. The FIR at Police Station Sadar, District Nagpur City has been transferred to NM Joshi Marg Police Station in Mumbai. We find merit in the submission of Mr Kapil Sibal, learned Senior Counsel that fairness in the administration of criminal justice would warrant the exercise of the jurisdiction under Article 32 to quash all other FIRs (save and except for the one under investigation in Mumbai). However, we do so only having regard to the principles which have been laid down by this Court in TT Antony. The filing of multiple FIRs arising out of the same telecast of the show hosted by the petitioner is an abuse of the process and impermissible. | 1[ds]31. In the present case, all the FIRs or complaints which have been lodged in diverse jurisdictions arise out of one and the same incident - the broadcast by the petitioner on 21 April 2020 on R Bharat. The broadcast is the foundation of the allegation that offences have been committed under the provisions of Sections 153, 153A, 153B, 295A, 298, 500, 504 and 506 of the IPC. During the course of the hearing, this Court has had the occasion, with the assistance of the learned Senior Counsel, to peruse the several complaints that were filed in relation to the incident dated 21 April 2020. They are worded in identical terms and leave no manner of doubt that an identity of cause of action underlies the allegations leveled against the petitioner on the basis of the programme which was broadcast on 21 April 2020. Moreover, the language, content and sequencing of paragraphs and their numbering is identical. It was in this backdrop that Mr Kapil Sibal, learned Senior Counsel fairly submitted (in our view correctly) that this Court may proceed to quash all the other FIRs and complaints lodged in diverse jurisdictions in the States, leaving open, however, the investigation in respect of the FIR 238 of 2020 dated 22 April 2020 transferred from the Police Station Sadar, District Nagpur City to NM Joshi Marg Police Station in Mumbai33. A litany of our decisions – to refer to them individually would be a parade of the familiar – has firmly established that any reasonable restriction on fundamental rights must comport with the proportionality standard, of which one component is that the measure adopted must be the least restrictive measure to effectively achieve the legitimate state aim. Subjecting an individual to numerous proceedings arising in different jurisdictions on the basis of the same cause of action cannot be accepted as the least restrictive and effective method of achieving the legitimate state aim in prosecuting crime. The manner in which the petitioner has been subjected to numerous FIRs in several States, besides the Union Territories of Jammu and Kashmir on the basis of identical allegations arising out of the same television show would leave no manner of doubt that the intervention of this Court is necessary to protect the rights of the petitioner as a citizen and as a journalist to fair treatment (guaranteed by Article 14) and the liberty to conduct an independent portrayal of views. In such a situation to require the petitioner to approach the respective High Courts having jurisdiction for quashing would result into a multiplicity of proceedings and unnecessary harassment to the petitioner, who is a journalist34. The issue concerning the registration of numerous FIRs and complaints covering different states is however, as we will explain, distinct from the investigation which arises from FIR 164 of 2020 at NM Joshi Marg Police Station in Mumbai. The petitioner, in the exercise of his right under Article 19(1)(a), is not immune from an investigation into the FIR which has been transferred from Police Station Sadar, District Nagpur City to NM Joshi Marg Police Station in Mumbai. This balance has to be drawn between the exercise of a fundamental right under Article 19(1)(a) and the investigation for an offence under the CrPC. All other FIRs in respect of the same incident constitute a clear abuse of process and must be quashedBefore we elucidate the law on the subject, we must emphasize at the outset that the transfer of FIR 238 of 2020 from the Police Station Sadar, District Nagpur City to NM Joshi Marg Police Station in Mumbai was with the consent of the petitioner and on his request. The reason why the investigation of the FIR was transferred to the NM Joshi Police Station in Mumbai was because that was the police station at which an earlier FIR had been lodged by the petitioner in respect of the incident when he and his spouse were allegedly obstructed by two political activists on their way home at midnight on 23 April 2020. Having accepted the transfer of the investigation from Police Station Sadar, District Nagpur City to NM Joshi Marg Police Station in Mumbai, the petitioner now seeks to question that very investigation by the Mumbai police38. The principle of law that emerges from the precedents of this Court is that the power to transfer an investigation must be used sparingly and only in exceptional circumstances. In assessing the plea urged by the petitioner that the investigation must be transferred to the CBI, we are guided by the parameters laid down by this Court for the exercise of that extraordinary power39. As we have observed earlier, the petitioner requested for and consented to the transfer of the investigation of the FIR from the Police Station Sadar, District Nagpur City to the NM Joshi Marg Police Station in Mumbai. He did so because an earlier FIR lodged by him at that police station was under investigation. The petitioner now seeks to preempt an investigation by the Mumbai police. The basis on which the petitioner seeks to achieve this is untenable. An accused person does not have a choice in regard to the mode or manner in which the investigation should be carried out or in regard to the investigating agency. The line of interrogation either of the petitioner or of the CFO cannot be controlled or dictated by the persons under investigation/interrogation41. The contention of the petitioner that the length of the investigation or the nature of the questions addressed to him and the CFO during the interrogation must weigh in transferring the investigation cannot be accepted. The investigating agency is entitled to determine the nature of the questions and the period of questioning. The Petitioner was summoned for investigation on one day. Furthermore, the allegation of the Petitioner that there is a conflict of interest arising out of the criticism by him of the alleged failure of the State government to adequately probe the incident at Palghar is not valid. The investigation of the Palghar incident is beyond the territorial jurisdiction of the Mumbai policeThe petitioner was interrogated on 27 April 2020. The allegations which he leveled against the CP, Mumbai were in the course of a television programme on 28 April 2020 ( Poochta hai Bharat) relayed on R Bharat at 1900 hrs. As we have noted earlier, this Court has, in CPDR, West Bengal held that no transfer of investigation can be ordered merely because a party has levelled some allegations against the local police. Accordingly, we do not find that leveling such allegations would by and itself constitute a sufficient ground for the transfer of the investigation43. The interview given by the complainant to a representative of R Bharat does not furnish a valid basis in law for an inference that the investigation is tainted or as warranting a transfer of investigation to the CBI. The Government of Maharashtra has moved an application before this Court (affirmed by the DCP, Zone-3) seeking appropriate directions to insulate the investigating agency from any pressure, threat or coercion from the petitioner and to enable it to discharge its lawful duties in a fair and transparent manner. Based on the views tweeted by R Bharat on social media, it is the Maharashtra police which is now claiming a restraining order against the petitioner. We are unable to accede to the submission of the Solicitor General that the contents of the IA filed by the State would make it necessary to transfer the investigation to the CBI. The investigating agency has placed on the record what it believes is an attempt by the petitioner to discredit the investigation by taking recourse to the social media and by utilizing the news channels which he operates. Social media has become an overarching presence in society. To accept the tweets by the petitioner and the interview by the complainant as a justification to displace a lawfully constituted investigation agency of its jurisdiction and duty to investigate would have far-reaching consequences for the federal structure. We are disinclined to do so44. In assessing the contention for the transfer of the investigation to the CBI, we have factored into the decision-making calculus the averments on the record and submissions urged on behalf of the petitioner. We are unable to find any reason that warrants a transfer of the investigation to the CBI. In holding thus, we have applied the tests spelt out in the consistent line of precedent of this Court. They have not been fulfilled. An individual under investigation has a legitimate expectation of a fair process which accords with law. The displeasure of an accused person about the manner in which the investigation proceeds or an unsubstantiated allegation (as in the present case) of a conflict of interest against the police conducting the investigation must not derail the legitimate course of law and warrant the invocation of the extraordinary power of this Court to transfer an investigation to the CBI. Courts assume the extraordinary jurisdiction to transfer an investigation in exceptional situations to ensure that the sanctity of the administration of criminal justice is preserved. While no inflexible guidelines are laid down, the notion that such a transfer is an extraordinary power to be used sparingly and in exceptional circumstances comports with the idea that routine transfers would belie not just public confidence in the normal course of law but also render meaningless the extraordinary situations that warrant the exercise of the power to transfer the investigation. Having balanced and considered the material on record as well as the averments of and submissions urged by the petitioner, we find that no case of the nature which falls within the ambit of the tests enunciated in the precedents of this Court has been established for the transfer of the investigationWe will clarify this in our final directions48. Before we conclude, it is necessary to advert to the interim order of this Court dated 24 April 2020. By the interim order, the petitioner has been granted liberty to move the competent court in order to espouse the remedies available under the CrPC. Hence, we clarify that this court has not in the present judgment expressed any opinion on the FIR which is under investigation at the NM Joshi Marg Police Station in Mumbai49. We hold that it would be inappropriate for the court to exercise its jurisdiction under Article 32 of the Constitution for the purpose of quashing FIR 164 of 2020 under investigation at the NM Joshi Marg Police Station in Mumbai. In adopting this view, we are guided by the fact that the checks and balances to ensure the protection of the petitioner?s liberty are governed by the CrPC. Despite the liberty being granted to the petitioner on 24 April 2020, it is an admitted position that the petitioner did not pursue available remedies in the law, but sought instead to invoke the jurisdiction of this Court. Whether the allegations contained in the FIR do or do not make out any offence as alleged will not be decided in pursuance of the jurisdiction of this Court under Article 32, to quash the FIR. The petitioner must be relegated to the pursuit of the remedies available under the CrPC, which we hereby do. The petitioner has an equally efficacious remedy available before the High Court. We should not be construed as holding that a petition under Article 32 is not maintainable. But when the High Court has the power under Section 482, there is no reason to by-pass the procedure under the CrPC, we see no exceptional grounds or reasons to entertain this petition under Article 32. There is a clear distinction between the maintainability of a petition and whether it should be entertained. In a situation like this, and for the reasons stated hereinabove, this Court would not like to entertain the petition under Article 32 for the relief of quashing the FIR being investigated at the NM Joshi Police Station in Mumbai which can be considered by the High Court. Therefore, we are of the opinion that the petitioner must be relegated to avail of the remedies which are available under the CrPC before the competent court including the High Court50. By the order of this Court dated 24 April 2020, the petitioner was protected against coercive steps for a period of three weeks. The period which was due to expire on 14 May 2020 was extended, when judgment was reserved on 11 May 2020, pending the decision of this Court. We are inclined to extend that protection for a further period of three weeks, particularly having regard to the outbreak of Covid-19, so as to leave adequate time to the petitioner to pursue his remedies before the competent forum51. As we have noted earlier, multiple FIRs and complaints have been filed against the petitioner in several states and in the Union Territories of Jammu and Kashmir. By the interim order of this Court dated 24 April 2020, further steps in regard to all the complaints and FIRs, save and except for the investigation of the FIR lodged at Police Station Sadar, District Nagpur City were stayed. The FIR at Police Station Sadar, District Nagpur City has been transferred to NM Joshi Marg Police Station in Mumbai. We find merit in the submission of Mr Kapil Sibal, learned Senior Counsel that fairness in the administration of criminal justice would warrant the exercise of the jurisdiction under Article 32 to quash all other FIRs (save and except for the one under investigation in Mumbai). However, we do so only having regard to the principles which have been laid down by this Court in TT Antony. The filing of multiple FIRs arising out of the same telecast of the show hosted by the petitioner is an abuse of the process and impermissible. | 1 | 14,664 | 2,481 | ### Instruction:
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Nath Mahato v. T. Ganguly, (1972) 1 SCC 450 : 1972 SCC (Cri) 206 ] , is a matter of judicial determination and before issuing a process, the Magistrate has to examine the complainant. In Punjab National Bank v. Surendra Prasad Sinha [Punjab National Bank v. Surendra Prasad Sinha, 1993 Supp (1) SCC 499 : 1993 SCC (Cri) 149 ] it has been held that judicial process should not be an instrument of oppression or needless harassment. The Court, though in a different context, has observed that there lies responsibility and duty on the Magistracy to find whether the accused concerned should be legally responsible for the offence charged for. Only on satisfying that the law casts liability or creates offence against the juristic person or the persons impleaded, then only process would be issued. At that stage the court would be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complaint as vendetta to harass the persons needlessly. Vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance. In Pepsi Foods Ltd. v. Special Judicial Magistrate [Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749 : 1998 SCC (Cri) 1400 ] , a two-Judge Bench has held that summoning of an accused in a criminal case is a serious matter and criminal law cannot be set into motion as a matter of course. 47. In view of the clear legal position, Mr Kapil Sibal, learned Senior Counsel appearing on behalf of the State of Maharashtra has fairly stated that the FIR which is under investigation at the NM Joshi Marg Police Station in Mumbai does not and cannot cover any alleged act of criminal defamation. We will clarify this in our final directions. 48. Before we conclude, it is necessary to advert to the interim order of this Court dated 24 April 2020. By the interim order, the petitioner has been granted liberty to move the competent court in order to espouse the remedies available under the CrPC. Hence, we clarify that this court has not in the present judgment expressed any opinion on the FIR which is under investigation at the NM Joshi Marg Police Station in Mumbai. 49. We hold that it would be inappropriate for the court to exercise its jurisdiction under Article 32 of the Constitution for the purpose of quashing FIR 164 of 2020 under investigation at the NM Joshi Marg Police Station in Mumbai. In adopting this view, we are guided by the fact that the checks and balances to ensure the protection of the petitioner?s liberty are governed by the CrPC. Despite the liberty being granted to the petitioner on 24 April 2020, it is an admitted position that the petitioner did not pursue available remedies in the law, but sought instead to invoke the jurisdiction of this Court. Whether the allegations contained in the FIR do or do not make out any offence as alleged will not be decided in pursuance of the jurisdiction of this Court under Article 32, to quash the FIR. The petitioner must be relegated to the pursuit of the remedies available under the CrPC, which we hereby do. The petitioner has an equally efficacious remedy available before the High Court. We should not be construed as holding that a petition under Article 32 is not maintainable. But when the High Court has the power under Section 482, there is no reason to by-pass the procedure under the CrPC, we see no exceptional grounds or reasons to entertain this petition under Article 32. There is a clear distinction between the maintainability of a petition and whether it should be entertained. In a situation like this, and for the reasons stated hereinabove, this Court would not like to entertain the petition under Article 32 for the relief of quashing the FIR being investigated at the NM Joshi Police Station in Mumbai which can be considered by the High Court. Therefore, we are of the opinion that the petitioner must be relegated to avail of the remedies which are available under the CrPC before the competent court including the High Court. 50. By the order of this Court dated 24 April 2020, the petitioner was protected against coercive steps for a period of three weeks. The period which was due to expire on 14 May 2020 was extended, when judgment was reserved on 11 May 2020, pending the decision of this Court. We are inclined to extend that protection for a further period of three weeks, particularly having regard to the outbreak of Covid-19, so as to leave adequate time to the petitioner to pursue his remedies before the competent forum. 51. As we have noted earlier, multiple FIRs and complaints have been filed against the petitioner in several states and in the Union Territories of Jammu and Kashmir. By the interim order of this Court dated 24 April 2020, further steps in regard to all the complaints and FIRs, save and except for the investigation of the FIR lodged at Police Station Sadar, District Nagpur City were stayed. The FIR at Police Station Sadar, District Nagpur City has been transferred to NM Joshi Marg Police Station in Mumbai. We find merit in the submission of Mr Kapil Sibal, learned Senior Counsel that fairness in the administration of criminal justice would warrant the exercise of the jurisdiction under Article 32 to quash all other FIRs (save and except for the one under investigation in Mumbai). However, we do so only having regard to the principles which have been laid down by this Court in TT Antony. The filing of multiple FIRs arising out of the same telecast of the show hosted by the petitioner is an abuse of the process and impermissible.
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the petitioner and the interview by the complainant as a justification to displace a lawfully constituted investigation agency of its jurisdiction and duty to investigate would have far-reaching consequences for the federal structure. We are disinclined to do so44. In assessing the contention for the transfer of the investigation to the CBI, we have factored into the decision-making calculus the averments on the record and submissions urged on behalf of the petitioner. We are unable to find any reason that warrants a transfer of the investigation to the CBI. In holding thus, we have applied the tests spelt out in the consistent line of precedent of this Court. They have not been fulfilled. An individual under investigation has a legitimate expectation of a fair process which accords with law. The displeasure of an accused person about the manner in which the investigation proceeds or an unsubstantiated allegation (as in the present case) of a conflict of interest against the police conducting the investigation must not derail the legitimate course of law and warrant the invocation of the extraordinary power of this Court to transfer an investigation to the CBI. Courts assume the extraordinary jurisdiction to transfer an investigation in exceptional situations to ensure that the sanctity of the administration of criminal justice is preserved. While no inflexible guidelines are laid down, the notion that such a transfer is an extraordinary power to be used sparingly and in exceptional circumstances comports with the idea that routine transfers would belie not just public confidence in the normal course of law but also render meaningless the extraordinary situations that warrant the exercise of the power to transfer the investigation. Having balanced and considered the material on record as well as the averments of and submissions urged by the petitioner, we find that no case of the nature which falls within the ambit of the tests enunciated in the precedents of this Court has been established for the transfer of the investigationWe will clarify this in our final directions48. Before we conclude, it is necessary to advert to the interim order of this Court dated 24 April 2020. By the interim order, the petitioner has been granted liberty to move the competent court in order to espouse the remedies available under the CrPC. Hence, we clarify that this court has not in the present judgment expressed any opinion on the FIR which is under investigation at the NM Joshi Marg Police Station in Mumbai49. We hold that it would be inappropriate for the court to exercise its jurisdiction under Article 32 of the Constitution for the purpose of quashing FIR 164 of 2020 under investigation at the NM Joshi Marg Police Station in Mumbai. In adopting this view, we are guided by the fact that the checks and balances to ensure the protection of the petitioner?s liberty are governed by the CrPC. Despite the liberty being granted to the petitioner on 24 April 2020, it is an admitted position that the petitioner did not pursue available remedies in the law, but sought instead to invoke the jurisdiction of this Court. Whether the allegations contained in the FIR do or do not make out any offence as alleged will not be decided in pursuance of the jurisdiction of this Court under Article 32, to quash the FIR. The petitioner must be relegated to the pursuit of the remedies available under the CrPC, which we hereby do. The petitioner has an equally efficacious remedy available before the High Court. We should not be construed as holding that a petition under Article 32 is not maintainable. But when the High Court has the power under Section 482, there is no reason to by-pass the procedure under the CrPC, we see no exceptional grounds or reasons to entertain this petition under Article 32. There is a clear distinction between the maintainability of a petition and whether it should be entertained. In a situation like this, and for the reasons stated hereinabove, this Court would not like to entertain the petition under Article 32 for the relief of quashing the FIR being investigated at the NM Joshi Police Station in Mumbai which can be considered by the High Court. Therefore, we are of the opinion that the petitioner must be relegated to avail of the remedies which are available under the CrPC before the competent court including the High Court50. By the order of this Court dated 24 April 2020, the petitioner was protected against coercive steps for a period of three weeks. The period which was due to expire on 14 May 2020 was extended, when judgment was reserved on 11 May 2020, pending the decision of this Court. We are inclined to extend that protection for a further period of three weeks, particularly having regard to the outbreak of Covid-19, so as to leave adequate time to the petitioner to pursue his remedies before the competent forum51. As we have noted earlier, multiple FIRs and complaints have been filed against the petitioner in several states and in the Union Territories of Jammu and Kashmir. By the interim order of this Court dated 24 April 2020, further steps in regard to all the complaints and FIRs, save and except for the investigation of the FIR lodged at Police Station Sadar, District Nagpur City were stayed. The FIR at Police Station Sadar, District Nagpur City has been transferred to NM Joshi Marg Police Station in Mumbai. We find merit in the submission of Mr Kapil Sibal, learned Senior Counsel that fairness in the administration of criminal justice would warrant the exercise of the jurisdiction under Article 32 to quash all other FIRs (save and except for the one under investigation in Mumbai). However, we do so only having regard to the principles which have been laid down by this Court in TT Antony. The filing of multiple FIRs arising out of the same telecast of the show hosted by the petitioner is an abuse of the process and impermissible.
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Seth Mathuradas Vs. Commissioner of Income Tax, M. P. and Bhopal | KAPUR J.1. These are two cross appeals which arise out of two orders and judgments of the High Court of Madhya Pradesh at Nagpur. The appellant in Civil Appeal No. 139 of 1956 is the assessee and that in Civil Appeal No. 207 of 959 is the Commissioner of Income-tax The facts of the case are these. Civil Appeal No. 139 of 1956 relates to assessment years 1944-45, 1945-46, 1946-47 and 1947-48 and Civil Appeal No. 207 of 1959 relates to the assessment years 1948-49 and 1949-50. The accounting years in both the appeals were Samvat years. The appellant in C. A. No. 139 of 1956 was the karta of a Hindu undivided family which consisted of the appellant, his wife and three sons. The family owned and possessed various moveable and immoveable properties and businesses and were being assessed as a Hindu undivided family. The appellant as the karta of the family brought about a disruption of the Hindu undivided family. There was a partition on October 16, 1944, and the deed of partition was executed on December 30, 1944, and was registered on January 2, 1945. The appellant claimed that the partition was given full effect to and, therefore, the members of the disrupted family applied under section 25A and section 25(4) of the Income-tax Act claiming exemption and reduction of tax liability for the various years of assessment and also prayed for an order under section 25A. The Income-tax Officer rejected the application holding that there was no partition as alleged by the appellant and that the deed of partition was not meant to be acted upon. The appellant then went in appeal to the Appellate Assistant Commissioner which was dismissed and so was the appeal to the Tribunal. The appellant applied under section 66(1) for a reference to the High Court on five questions of law but this application was also dismissed. Thereafter, he applied to the High Court under section 66(2) of the Income-tax Act and the High Court directed the Tribunal to state the case on the following question "Whether there is in this case any legal evidence to support the inference of the Tribunal that the partition in question was not genuine and meant to be acted upon?"2. The partition in question which was set up was one dated October 16, 1944. The case was stated but the reference was decided against the appellant. Against that order the appellant has come to this court on a certificate of the High Court. In our opinion no question of law arises in this appeal. It was held by the Tribunal, on the material before it, that the partition which was evidenced by the deed was not genuine and the partition was not acted upon. In our opinion, the High Court, on this finding, rightly held against the appellant. The appeal is therefore dismissed with costs.3. Civil Appeal No. 207 of 1959 is equally without substance and must be dismissed. As has been said above, that appeal relates to the assessment years 1948-49 and 1949-50. On May 6, 1950, the respondent, Mathuradas, filed a civil suit praying that the partition as evidenced by the deed dated December 30, 1944, be declared null and void and a fresh partition be made between the parties. The Union of India was sought to be made a party to the suit but on its objection the court refused this prayer. The court held the partition evidenced by the deed of partition to be genuine, fair and binding on all the parties and that the joint family had ceased to exist as from December 30, 1944. Once again the respondent, Mathuradas, applied under section 25A of the Income-tax Act but this application was also dismissed. On appeal to the Appellate Tribunal, it was decided in favour of Mathuradas, respondent, excepting in regard to a house at Bikaner. The Commissioner of Income-tax applied for a reference under section 66(1) of the Income-tax Act but it was rejected. The Commissioner then applied to the High Court under section 66(2) of the Act and the High Court ordered a reference to be made but answered the question referred in favour of the respondent and against the Commissioner. The question referred was" Whether there was any legal evidence before the Tribunal for the finding that a partition was effected in I944 and it was genuine ? "4. It is against this judgment and order that the Commissioner has come in appeal to this court. Considering the additional facts which were placed before the Tribunal and on which it had given a finding in favour of the respondent, Mathuradas, the High Court held that there was, material in favour of the partition set up. It was argued before us that it was really the same partition and there was nothing fresh to support the genuineness of the partition and that the partition which had been held not to be genuine cannot now be held ratified. But the partition set up in this case was of December 30, 1944, whereas the partition set up in the earlier case was of October 16, 1944. As the High Court has pointed out on the additional facts which were proved before the Tribunal including the statements on oath of the sons of the respondent and the other relevant material it cannot be said that there were no materials before the Appellate Tribunal for finding in favour of the respondent and in favour of the partition being genuine. | 0[ds]Considering the additional facts which were placed before the Tribunal and on which it had given a finding in favour of the respondent, Mathuradas, the High Court held that there was, material in favour of the partition set up. It was argued before us that it was really the same partition and there was nothing fresh to support the genuineness of the partition and that the partition which had been held not to be genuine cannot now be held ratified. But the partition set up in this case was of December 30, 1944, whereas the partition set up in the earlier case was of October 16, 1944. As the High Court has pointed out on the additional facts which were proved before the Tribunal including the statements on oath of the sons of the respondent and the other relevant material it cannot be said that there were no materials before the Appellate Tribunal for finding in favour of the respondent and in favour of the partition being genuine. | 0 | 1,020 | 184 | ### Instruction:
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KAPUR J.1. These are two cross appeals which arise out of two orders and judgments of the High Court of Madhya Pradesh at Nagpur. The appellant in Civil Appeal No. 139 of 1956 is the assessee and that in Civil Appeal No. 207 of 959 is the Commissioner of Income-tax The facts of the case are these. Civil Appeal No. 139 of 1956 relates to assessment years 1944-45, 1945-46, 1946-47 and 1947-48 and Civil Appeal No. 207 of 1959 relates to the assessment years 1948-49 and 1949-50. The accounting years in both the appeals were Samvat years. The appellant in C. A. No. 139 of 1956 was the karta of a Hindu undivided family which consisted of the appellant, his wife and three sons. The family owned and possessed various moveable and immoveable properties and businesses and were being assessed as a Hindu undivided family. The appellant as the karta of the family brought about a disruption of the Hindu undivided family. There was a partition on October 16, 1944, and the deed of partition was executed on December 30, 1944, and was registered on January 2, 1945. The appellant claimed that the partition was given full effect to and, therefore, the members of the disrupted family applied under section 25A and section 25(4) of the Income-tax Act claiming exemption and reduction of tax liability for the various years of assessment and also prayed for an order under section 25A. The Income-tax Officer rejected the application holding that there was no partition as alleged by the appellant and that the deed of partition was not meant to be acted upon. The appellant then went in appeal to the Appellate Assistant Commissioner which was dismissed and so was the appeal to the Tribunal. The appellant applied under section 66(1) for a reference to the High Court on five questions of law but this application was also dismissed. Thereafter, he applied to the High Court under section 66(2) of the Income-tax Act and the High Court directed the Tribunal to state the case on the following question "Whether there is in this case any legal evidence to support the inference of the Tribunal that the partition in question was not genuine and meant to be acted upon?"2. The partition in question which was set up was one dated October 16, 1944. The case was stated but the reference was decided against the appellant. Against that order the appellant has come to this court on a certificate of the High Court. In our opinion no question of law arises in this appeal. It was held by the Tribunal, on the material before it, that the partition which was evidenced by the deed was not genuine and the partition was not acted upon. In our opinion, the High Court, on this finding, rightly held against the appellant. The appeal is therefore dismissed with costs.3. Civil Appeal No. 207 of 1959 is equally without substance and must be dismissed. As has been said above, that appeal relates to the assessment years 1948-49 and 1949-50. On May 6, 1950, the respondent, Mathuradas, filed a civil suit praying that the partition as evidenced by the deed dated December 30, 1944, be declared null and void and a fresh partition be made between the parties. The Union of India was sought to be made a party to the suit but on its objection the court refused this prayer. The court held the partition evidenced by the deed of partition to be genuine, fair and binding on all the parties and that the joint family had ceased to exist as from December 30, 1944. Once again the respondent, Mathuradas, applied under section 25A of the Income-tax Act but this application was also dismissed. On appeal to the Appellate Tribunal, it was decided in favour of Mathuradas, respondent, excepting in regard to a house at Bikaner. The Commissioner of Income-tax applied for a reference under section 66(1) of the Income-tax Act but it was rejected. The Commissioner then applied to the High Court under section 66(2) of the Act and the High Court ordered a reference to be made but answered the question referred in favour of the respondent and against the Commissioner. The question referred was" Whether there was any legal evidence before the Tribunal for the finding that a partition was effected in I944 and it was genuine ? "4. It is against this judgment and order that the Commissioner has come in appeal to this court. Considering the additional facts which were placed before the Tribunal and on which it had given a finding in favour of the respondent, Mathuradas, the High Court held that there was, material in favour of the partition set up. It was argued before us that it was really the same partition and there was nothing fresh to support the genuineness of the partition and that the partition which had been held not to be genuine cannot now be held ratified. But the partition set up in this case was of December 30, 1944, whereas the partition set up in the earlier case was of October 16, 1944. As the High Court has pointed out on the additional facts which were proved before the Tribunal including the statements on oath of the sons of the respondent and the other relevant material it cannot be said that there were no materials before the Appellate Tribunal for finding in favour of the respondent and in favour of the partition being genuine.
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Considering the additional facts which were placed before the Tribunal and on which it had given a finding in favour of the respondent, Mathuradas, the High Court held that there was, material in favour of the partition set up. It was argued before us that it was really the same partition and there was nothing fresh to support the genuineness of the partition and that the partition which had been held not to be genuine cannot now be held ratified. But the partition set up in this case was of December 30, 1944, whereas the partition set up in the earlier case was of October 16, 1944. As the High Court has pointed out on the additional facts which were proved before the Tribunal including the statements on oath of the sons of the respondent and the other relevant material it cannot be said that there were no materials before the Appellate Tribunal for finding in favour of the respondent and in favour of the partition being genuine.
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GLOBE GROUND INDIA EMPLOYEES UNION Vs. LUFTHANSA GERMAN AIRLINES | Court has considered powers of the Tribunal to add necessary and proper parties. In the said judgment this Court has held that if the employer named in reference does not fully represent the interests of the employer as such, other persons who are interested in the undertaking of the employer can be joined. But at the same time in the very said judgment it is held that, the test always must be is the addition of the party necessary to make adjudication itself effective and enforceable? 13. In another judgment relied upon by the learned senior counsel for the appellant in the case of Hussainbhai vs. Alath Factory Thezhilali Union and others (supra), this Court has prescribed the test for determining, workmen employed by independent contractor to work in employers factory, whether such workmen are workmen of the factory or not. In this judgment, this Court has held that the presence of intermediate contractors with whom alone workers have immediate or direct relationship ex contractu is of no consequence when, on lifting the veil or looking at the conspectus of factors governing employment. 14. Similarly, in another judgment relied upon by the learned senior counsel for the appellant in the case of Grindlays Bank Ltd. vs. Central Government Industrial Tribunal and others (supra), this Court has held that for the proceedings arising out of the Industrial Disputes Act, 1947, the provisions of the Evidence Act, in their strict sense, likewise do not apply to the proceedings. It is held that the authorities to whom reference is made under the Industrial Disputes Act, 1947, being quasi-judicial in nature, have to exercise their discretion in a judicial manner, without caprice, and according to the general principles of law and rules of natural justice. 15. There cannot be any second opinion on the ratio decided in the aforesaid cases relied on by the learned senior counsel for the appellant. But, whenever an application is filed for impleadment of a third party, who is not a party to the reference under the Industrial Disputes Act or any other proceedings pending before the Court, what is required to be considered is whether such party is either necessary or proper party to decide the lis. It all depends on the facts of each case; the allegations made and the nature of adjudication proceedings etc. In this case it is to be noted that only the scope of reference is limited which is already discussed above. However, it is also clear from Section 10(4) of the Industrial Disputes Act, 1947 that whenever a reference is made, the Industrial Court shall confine its adjudication to the point of reference and matters incidental thereto only. 16. Reverting back to the facts of the case on hand it is clear that the first respondent had a subsidiary, namely, Globe Ground Deutschland GmbH, which was holding 51% shares along with 49% shares held by the Bird Group in the second respondent company. Further, it is clear that the Bird Group had floated another company, Bird Worldwide Flight Services Ltd. to provide ground handling and ancillary services which started from the month of January, 2009. It is the allegation of the appellants union that even after the formation of a new company, such new company is utilizing same equipment and vehicles belonging to the second respondent. It is also the allegation of the appellant that after the formation of the new company, it has retained most of the employees, except the trade union activists. The appellant workers union does not seek employment of the alleged retrenched workers in the first respondent. 17. Having regard to facts and circumstances of present case, we are of the opinion that the case law relied on by the learned senior counsel for the appellant would not render any assistance in support of the appellants case. 18. At the same time in the judgment in the case of Balwant Rai Saluja and another vs. AIR India Limited and others (supra) relied upon by Sri Chander Uday Singh, learned senior counsel for the respondents, this Court has observed that the corporate veil can be pierced and the parent company can be held liable for the conduct of its subsidiary, only if it is shown that the corporal form is misused to accomplish certain wrongful purposes. In the aforesaid case, having regard to facts, it was opined that the doctrine of piercing veil cannot be applied. In the aforesaid case it is held by this Court that the doctrine of piercing veil, has been applied sparingly by the courts. 19. The other judgment relied on by the learned senior counsel for the respondents in the case of Kasturi vs. Iyyamperumal and others (supra), this Court again considered the test to be applied while considering the application filed under Order 1 Rule 10 of the Code of Civil Procedure, 1908. It is held that to consider the scope of application, the tests are:- (1) there must be a right to some relief against such party in respect of controversies involved in the proceedings; (2) no effective decree can be passed in its absence. Applying the aforesaid ratio laid down in the judgment, referred in the aforesaid cases, we are of the view that the said judgment relied on supports the case of the respondents. Further, we are of the view that even in a subsidiary company which is an independent corporate entity, if any other company is holding shares, by itself is no ground to order impleadment of parent company per se. In the case at hand, it is clear that the second respondent itself is a company in which the subsidiary of the first respondent, namely, Globe Ground Deutschland GmbH, was holding 51% shares and 49% shares were held by the Bird Group. As per the case of the appellant, the Bird Group has floated another company and started handling services from the month of January, 2009 by uitlizing the same equipments and vehicles belonging to the second respondent. | 0[ds]From a reading of the reference, which is referred to Industrial Tribunal, it is clear that the reference which is required to be answered by the Industrial Tribunal is that, whether the action of the Management of M/s Globe Ground India (Pvt.) Limited, in closing down their establishment on 15.12.2009 and retrenching the services of 106 workmen is justified and legal. At this stage, it is apt to refer to Section 10 of the Industrial Disputes Act. It is clear from the above said section, whenever, the appropriate Government refers the points of dispute for adjudication, the Labour Court or the Tribunal or the National Tribunal, as the case may be, shall confine its adjudication to those points only and matters incidential thereto11. Whenever, an application is filed in the adjudication proceedings, either before the Industrial Tribunal in a reference made under the Industrial Disputes Act, 1947 or any other legal proceedings, for impleadment of a party whois not a party to the proceedings, what is required to be considered is whether such party which is sought to be impleaded is either necessary or proper party to decide the lis. The expressions necessary or proper parties have been considered time and again and explained in several decisions. The two expressions have separate and different connotations. It is fairly well settled that necessary party, is one without whom no order can be made effectively. Similarly, a proper party is one in whose absence an effective order can be made but whose presence is necessary for complete and final decision on the question involved in the proceedings15. There cannot be any second opinion on the ratio decided in the aforesaid cases relied on by the learned senior counsel for the appellant. But, whenever an application is filed for impleadment of a third party, who is not a party to the reference under the Industrial Disputes Act or any other proceedings pending before the Court, what is required to be considered is whether such party is either necessary or proper party to decide the lis. It all depends on the facts of each case; the allegations made and the nature of adjudication proceedings etc. In this case it is to be noted that only the scope of referenceis limited which is already discussed above. However, it is also clear from Section 10(4) of the Industrial Disputes Act, 1947 that whenever a reference is made, the Industrial Court shall confine its adjudication to the point of reference and matters incidental thereto only16. Reverting back to the facts of the case on hand it is clear that the first respondent had a subsidiary, namely, Globe Ground Deutschland GmbH, which was holding 51% shares along with 49% shares held by the Bird Group in the second respondent company. Further, it is clear that the Bird Group had floated another company, Bird Worldwide Flight Services Ltd. to provide ground handling and ancillary services which started from the month of January, 2009. It is the allegation of the appellants union that even after the formation of a new company, such new company is utilizing same equipment and vehicles belonging to the second respondent. It is also the allegation of the appellant that after the formation of the new company, it has retained most of the employees, except the trade union activists. The appellant workers union does not seekemployment of the alleged retrenched workers in the first respondent17. Having regard to facts and circumstances of present case, we are of the opinion that the case law relied on by the learned senior counsel for the appellant would not render any assistance in support of the appellants case18. At the same time in the judgment in the case of Balwant Rai Saluja and another vs. AIR India Limited and others (supra) relied upon by Sri Chander Uday Singh, learned senior counsel for the respondents, this Court has observed that the corporate veil can be pierced and the parent company can be held liable for the conduct of its subsidiary, only if it is shown that the corporal form is misused to accomplish certain wrongful purposes. In the aforesaid case, having regard to facts, it was opined that the doctrine of piercing veil cannot be applied. In the aforesaid case it is held by this Court that the doctrine of piercing veil, has been applied sparingly by the courts19. The other judgment relied on by the learned senior counsel for the respondents in the case of Kasturi vs. Iyyamperumal and others (supra), this Court again considered the test to be applied while considering the application filed under Order 1 Rule 10 of the Code of Civil Procedure, 1908. It is held that to consider the scope of application, the tests are:- (1) there must be a right to some relief against such party in respect of controversies involved in the proceedings; (2) no effective decree can be passed in its absence. Applying the aforesaid ratio laid down in the judgment, referred in the aforesaid cases, we are of the view that the said judgment relied on supports the case of the respondents. Further, we are of the view that even in a subsidiary company which is an independent corporate entity, if any other company is holding shares, by itself is no ground to order impleadment of parent company per se. In the case at hand, it is clear that the second respondent itself is a company in which the subsidiary of the first respondent, namely, Globe Ground Deutschland GmbH, was holding 51% shares and 49% shares were held by the Bird Group. As per the case of the appellant, the Bird Group has floated another company and started handling services from the month of January, 2009 by uitlizing the same equipments and vehicles belonging to the second respondent. | 0 | 3,297 | 1,076 | ### 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:
Court has considered powers of the Tribunal to add necessary and proper parties. In the said judgment this Court has held that if the employer named in reference does not fully represent the interests of the employer as such, other persons who are interested in the undertaking of the employer can be joined. But at the same time in the very said judgment it is held that, the test always must be is the addition of the party necessary to make adjudication itself effective and enforceable? 13. In another judgment relied upon by the learned senior counsel for the appellant in the case of Hussainbhai vs. Alath Factory Thezhilali Union and others (supra), this Court has prescribed the test for determining, workmen employed by independent contractor to work in employers factory, whether such workmen are workmen of the factory or not. In this judgment, this Court has held that the presence of intermediate contractors with whom alone workers have immediate or direct relationship ex contractu is of no consequence when, on lifting the veil or looking at the conspectus of factors governing employment. 14. Similarly, in another judgment relied upon by the learned senior counsel for the appellant in the case of Grindlays Bank Ltd. vs. Central Government Industrial Tribunal and others (supra), this Court has held that for the proceedings arising out of the Industrial Disputes Act, 1947, the provisions of the Evidence Act, in their strict sense, likewise do not apply to the proceedings. It is held that the authorities to whom reference is made under the Industrial Disputes Act, 1947, being quasi-judicial in nature, have to exercise their discretion in a judicial manner, without caprice, and according to the general principles of law and rules of natural justice. 15. There cannot be any second opinion on the ratio decided in the aforesaid cases relied on by the learned senior counsel for the appellant. But, whenever an application is filed for impleadment of a third party, who is not a party to the reference under the Industrial Disputes Act or any other proceedings pending before the Court, what is required to be considered is whether such party is either necessary or proper party to decide the lis. It all depends on the facts of each case; the allegations made and the nature of adjudication proceedings etc. In this case it is to be noted that only the scope of reference is limited which is already discussed above. However, it is also clear from Section 10(4) of the Industrial Disputes Act, 1947 that whenever a reference is made, the Industrial Court shall confine its adjudication to the point of reference and matters incidental thereto only. 16. Reverting back to the facts of the case on hand it is clear that the first respondent had a subsidiary, namely, Globe Ground Deutschland GmbH, which was holding 51% shares along with 49% shares held by the Bird Group in the second respondent company. Further, it is clear that the Bird Group had floated another company, Bird Worldwide Flight Services Ltd. to provide ground handling and ancillary services which started from the month of January, 2009. It is the allegation of the appellants union that even after the formation of a new company, such new company is utilizing same equipment and vehicles belonging to the second respondent. It is also the allegation of the appellant that after the formation of the new company, it has retained most of the employees, except the trade union activists. The appellant workers union does not seek employment of the alleged retrenched workers in the first respondent. 17. Having regard to facts and circumstances of present case, we are of the opinion that the case law relied on by the learned senior counsel for the appellant would not render any assistance in support of the appellants case. 18. At the same time in the judgment in the case of Balwant Rai Saluja and another vs. AIR India Limited and others (supra) relied upon by Sri Chander Uday Singh, learned senior counsel for the respondents, this Court has observed that the corporate veil can be pierced and the parent company can be held liable for the conduct of its subsidiary, only if it is shown that the corporal form is misused to accomplish certain wrongful purposes. In the aforesaid case, having regard to facts, it was opined that the doctrine of piercing veil cannot be applied. In the aforesaid case it is held by this Court that the doctrine of piercing veil, has been applied sparingly by the courts. 19. The other judgment relied on by the learned senior counsel for the respondents in the case of Kasturi vs. Iyyamperumal and others (supra), this Court again considered the test to be applied while considering the application filed under Order 1 Rule 10 of the Code of Civil Procedure, 1908. It is held that to consider the scope of application, the tests are:- (1) there must be a right to some relief against such party in respect of controversies involved in the proceedings; (2) no effective decree can be passed in its absence. Applying the aforesaid ratio laid down in the judgment, referred in the aforesaid cases, we are of the view that the said judgment relied on supports the case of the respondents. Further, we are of the view that even in a subsidiary company which is an independent corporate entity, if any other company is holding shares, by itself is no ground to order impleadment of parent company per se. In the case at hand, it is clear that the second respondent itself is a company in which the subsidiary of the first respondent, namely, Globe Ground Deutschland GmbH, was holding 51% shares and 49% shares were held by the Bird Group. As per the case of the appellant, the Bird Group has floated another company and started handling services from the month of January, 2009 by uitlizing the same equipments and vehicles belonging to the second respondent.
### Response:
0
### Explanation:
From a reading of the reference, which is referred to Industrial Tribunal, it is clear that the reference which is required to be answered by the Industrial Tribunal is that, whether the action of the Management of M/s Globe Ground India (Pvt.) Limited, in closing down their establishment on 15.12.2009 and retrenching the services of 106 workmen is justified and legal. At this stage, it is apt to refer to Section 10 of the Industrial Disputes Act. It is clear from the above said section, whenever, the appropriate Government refers the points of dispute for adjudication, the Labour Court or the Tribunal or the National Tribunal, as the case may be, shall confine its adjudication to those points only and matters incidential thereto11. Whenever, an application is filed in the adjudication proceedings, either before the Industrial Tribunal in a reference made under the Industrial Disputes Act, 1947 or any other legal proceedings, for impleadment of a party whois not a party to the proceedings, what is required to be considered is whether such party which is sought to be impleaded is either necessary or proper party to decide the lis. The expressions necessary or proper parties have been considered time and again and explained in several decisions. The two expressions have separate and different connotations. It is fairly well settled that necessary party, is one without whom no order can be made effectively. Similarly, a proper party is one in whose absence an effective order can be made but whose presence is necessary for complete and final decision on the question involved in the proceedings15. There cannot be any second opinion on the ratio decided in the aforesaid cases relied on by the learned senior counsel for the appellant. But, whenever an application is filed for impleadment of a third party, who is not a party to the reference under the Industrial Disputes Act or any other proceedings pending before the Court, what is required to be considered is whether such party is either necessary or proper party to decide the lis. It all depends on the facts of each case; the allegations made and the nature of adjudication proceedings etc. In this case it is to be noted that only the scope of referenceis limited which is already discussed above. However, it is also clear from Section 10(4) of the Industrial Disputes Act, 1947 that whenever a reference is made, the Industrial Court shall confine its adjudication to the point of reference and matters incidental thereto only16. Reverting back to the facts of the case on hand it is clear that the first respondent had a subsidiary, namely, Globe Ground Deutschland GmbH, which was holding 51% shares along with 49% shares held by the Bird Group in the second respondent company. Further, it is clear that the Bird Group had floated another company, Bird Worldwide Flight Services Ltd. to provide ground handling and ancillary services which started from the month of January, 2009. It is the allegation of the appellants union that even after the formation of a new company, such new company is utilizing same equipment and vehicles belonging to the second respondent. It is also the allegation of the appellant that after the formation of the new company, it has retained most of the employees, except the trade union activists. The appellant workers union does not seekemployment of the alleged retrenched workers in the first respondent17. Having regard to facts and circumstances of present case, we are of the opinion that the case law relied on by the learned senior counsel for the appellant would not render any assistance in support of the appellants case18. At the same time in the judgment in the case of Balwant Rai Saluja and another vs. AIR India Limited and others (supra) relied upon by Sri Chander Uday Singh, learned senior counsel for the respondents, this Court has observed that the corporate veil can be pierced and the parent company can be held liable for the conduct of its subsidiary, only if it is shown that the corporal form is misused to accomplish certain wrongful purposes. In the aforesaid case, having regard to facts, it was opined that the doctrine of piercing veil cannot be applied. In the aforesaid case it is held by this Court that the doctrine of piercing veil, has been applied sparingly by the courts19. The other judgment relied on by the learned senior counsel for the respondents in the case of Kasturi vs. Iyyamperumal and others (supra), this Court again considered the test to be applied while considering the application filed under Order 1 Rule 10 of the Code of Civil Procedure, 1908. It is held that to consider the scope of application, the tests are:- (1) there must be a right to some relief against such party in respect of controversies involved in the proceedings; (2) no effective decree can be passed in its absence. Applying the aforesaid ratio laid down in the judgment, referred in the aforesaid cases, we are of the view that the said judgment relied on supports the case of the respondents. Further, we are of the view that even in a subsidiary company which is an independent corporate entity, if any other company is holding shares, by itself is no ground to order impleadment of parent company per se. In the case at hand, it is clear that the second respondent itself is a company in which the subsidiary of the first respondent, namely, Globe Ground Deutschland GmbH, was holding 51% shares and 49% shares were held by the Bird Group. As per the case of the appellant, the Bird Group has floated another company and started handling services from the month of January, 2009 by uitlizing the same equipments and vehicles belonging to the second respondent.
|
Basant Kumar Sarkar And Others Vs. Eagle Rolling Mills Ltd. And Others | intended to be applied, the class of persons for whose benefit it has been passed and the nature of the benefit which is intended to be conferred on them. Chapter II of the Act deals with the Corporation, Standing Committee and Medical Benefit Council and their constitution; Chapter III deals with the problem of finance and audit; Chapter IV makes provisions for contribution both by the employee and the employer, and Chapter V prescribes the benefits which have to be conferred on the workmen; it also gives general provisions in respect of those benefits. Chapter V-A deals with transitory provisions; Chapter VI deals with the adjudication of disputes and claims; and Chapter VII prescribes penalties. Chapter VIII which is the last Chapter, deals with miscellaneous matters. In the very nature of things, it would have been impossible for the legislature to decide in what areas and in respect of which factories the Employees State Insurance Corporation should be established. It is obvious that a scheme of this kind, though very beneficent, could not be introduced in the whole of the country all at once. Such beneficial measures which need careful experimentation have some times to be adopted by stages and in different phases, and so, inevitably, the question of extending the statutory benefits contemplated by the Act has to be left to the discretion of the appropriate Government."Appropriate Government under S. 2 (1) means in respect of establishments under the control of the Central Government or a railway administration or a major port or a mine or oilfield, the Central Government, and in all other cases, the State Government. Thus, it is clear that when extending the Act to different establishments, the relevant Government is given the power to constitute a Corporation for the administration of the scheme of Employees State Insurance. The course adopted by modern legislatures in dealing with welfare scheme has uniformly conformed to the same pattern. The legislature evolves a scheme of socio-economic welfare, makes elaborate provisions in respect of it and leaves it to the Government concerned to decide when, how and in what manner the scheme should be introduced. That, in our opinion, cannot amount to excessive delegation.6. The question of excessive delegation has been frequently considered by this Court and the approach to be adopted in dealing with it is no longer in doubt. In the Edward Mills Co. Ltd., Beawar v. State of Ajmer 1955-1 SCR 735 : ( (S) AIR 1955 SC 25 ) this Court repelled the challenge to the validity of S. 27 of the Minimum Wages Act, 1948 (No. XI of 1948), whereby power had been given to the appropriate Government to add to either part of the schedule any employment in respect of which it was of opinion that minimum wages shall be fixed by giving notification in a particular manner, and it was provided that on the issue of the notification, the scheme shall ,in its application to the State, be deemed to be amended accordingly. In dealing with this problem, this Court observed that there was an element of delegation implied in the provisions of S. 27, for the legislature, in a sense, authorised another body specified by it to do something which it might do itself; but it was held that such delegation was not unwarranted and unconstitutional and it did not exceed the limits of permissible delegation. To the same effect are the recent decisions of this Court in Bhikusa Yamasa v. Sangamner Akola Taluka Bidi Kamgar Union, Civil appeal No. 546 of 1961, D/- 10-10-1962: (AIR 1963 SC 806 ) and Bhikusa Yamasa Kshatriya (P) Ltd. v. Union of India, AIR 1963 SC 1591 . Therefore, we must hold that the impugned S. 1 (3) of the Act is not shown to be constitutionally invalid.7. Before we part with these appeals, there is one more point to which reference must be made. We have already mentioned that after the notification was issued under S. 1 (3) by respondent No. 3 appointing August 28, 1960 as the date on which some of the provisions of the Act should come into force in certain areas of the State of Bihar, the Chief Executive Officer of respondent No. 1 issued notices giving effect to the State Governments notification and intimating to the appellants that by reason of the said notification, the medical benefits which were being given to them in the past would be received by them under the relevant provisions of the Act. It was urged by the appellants before the High Court that these notices were invalid and should be struck down. The argument which was urged in support of this contention was that respondents No. 1 in all the three appeals were not entitled to curtail the benefits provided to the appellants by them and that the said benefits were not similar either qualitatively or quantitatively to the benefits under the Scheme which had been brought into force under the Act. The High Court has held that the question as to whether the notices and circulars issued by respondents No. 1 were invalid, could not be considered under Art. 226 of the Constitution; that is a matter which can be appropriately raised in the form of a dispute by the appellants under S. 10 of the Industrial Disputes. Act. It is true that the powers conferred on the High Courts under Art. 226 are very wide, but it is not suggested by Mr. Chatterjee that even these powers can take in within their sweep industrial disputes of the kind which this contention seeks to raise. Therefore, without expressing any opinion on the merits of the contention, we would confirm the finding of the High Court that the proper remedy which is available to the appellants to ventilate their grievances in respect of the said notices and circulars is to take recourse to Section 10 of the Industrial Disputes Act, or seek relief, if possible under Ss. 74 and 75 of the Act. | 0[ds]The Act does not prescribe any considerations in the light of which the Central Government can proceed to act under S. 1 (3) and such uncanalised power conferred on the Central Government must be treated as invalid. We are not impressed by this argument. Section 1 (3) is really not an illustration of delegated legislation at all; it is what can be properly described as conditional legislation. The Act has prescribed a self-contained Code in regard to the insurance of the employees covered by it; several remedial measures which the Legislature thought it necessary to enforce in regard to such workmen have been specifically dealt with and appropriate provisions have been made to carry out the policy of the Act as laid down in its relevant sections. Section 3(1) of the Act purports to authorise the Central Government to establish a Corporation for the administration of the scheme of Employees State Insurance by a notification. In other words, when the notification should be issued and in respect of what factories it should be issued, has been left to the discretion of the Central Government and that is precisely what is usually done by conditional legislation. What Lord Selborne said about the powers conferred on the Lieutenant-Governor by virtue of the relevant provisions of Act 22 of 1869 in Queen v. Burah, 5 Ind App 178 at p. 195 (PC) can be said with equal justification about the powers conferred on the Central Government by Section 1 (3).Assuming that there is an element of delegation, the plea is equally unsustainable, because there is enough guidance given by the relevant provisions of the Act and the very scheme of the Act itself. The preamble to the Act shows that it was passed because the legislature thought it expedient to provide for certain benefits to employees in case of sickness, maternity and employment injury and to make provision for certain other matters in relation thereto. So , the policy of the Act is unambiguous and clear. The material definitions of " benefit period, " sickness, " wages and other terms contained in S. 2 give a clear idea as to the nature of the factories to which the Act is intended to be applied, the class of persons for whose benefit it has been passed and the nature of the benefit which is intended to be conferred on them. Chapter II of the Act deals with the Corporation, Standing Committee and Medical Benefit Council and their constitution; Chapter III deals with the problem of finance and audit; Chapter IV makes provisions for contribution both by the employee and the employer, and Chapter V prescribes the benefits which have to be conferred on the workmen; it also gives general provisions in respect of those benefits. Chapter V-A deals with transitory provisions; Chapter VI deals with the adjudication of disputes and claims; and Chapter VII prescribes penalties. Chapter VIII which is the last Chapter, deals with miscellaneous matters. In the very nature of things, it would have been impossible for the legislature to decide in what areas and in respect of which factories the Employees State Insurance Corporation should be established. It is obvious that a scheme of this kind, though very beneficent, could not be introduced in the whole of the country all at once. Such beneficial measures which need careful experimentation have some times to be adopted by stages and in different phases, and so, inevitably, the question of extending the statutory benefits contemplated by the Act has to be left to the discretion of the appropriate Government."Appropriate Government under S. 2 (1) means in respect of establishments under the control of the Central Government or a railway administration or a major port or a mine or oilfield, the Central Government, and in all other cases, the State Government. Thus, it is clear that when extending the Act to different establishments, the relevant Government is given the power to constitute a Corporation for the administration of the scheme of Employees State Insurance. The course adopted by modern legislatures in dealing with welfare scheme has uniformly conformed to the same pattern. The legislature evolves a scheme of socio-economic welfare, makes elaborate provisions in respect of it and leaves it to the Government concerned to decide when, how and in what manner the scheme should be introduced. That, in our opinion, cannot amount to excessiveHigh Court has held that the question as to whether the notices and circulars issued by respondents No. 1 were invalid, could not be considered under Art. 226 of the Constitution; that is a matter which can be appropriately raised in the form of a dispute by the appellants under S. 10 of the Industrial Disputes. Act. It is true that the powers conferred on the High Courts under Art. 226 are very wide, but it is not suggested by Mr. Chatterjee that even these powers can take in within their sweep industrial disputes of the kind which this contention seeks to raise. Therefore, without expressing any opinion on the merits of the contention, we would confirm the finding of the High Court that the proper remedy which is available to the appellants to ventilate their grievances in respect of the said notices and circulars is to take recourse to Section 10 of the Industrial Disputes Act, or seek relief, if possible under Ss. 74 and 75 of the Act. | 0 | 2,384 | 989 | ### 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:
intended to be applied, the class of persons for whose benefit it has been passed and the nature of the benefit which is intended to be conferred on them. Chapter II of the Act deals with the Corporation, Standing Committee and Medical Benefit Council and their constitution; Chapter III deals with the problem of finance and audit; Chapter IV makes provisions for contribution both by the employee and the employer, and Chapter V prescribes the benefits which have to be conferred on the workmen; it also gives general provisions in respect of those benefits. Chapter V-A deals with transitory provisions; Chapter VI deals with the adjudication of disputes and claims; and Chapter VII prescribes penalties. Chapter VIII which is the last Chapter, deals with miscellaneous matters. In the very nature of things, it would have been impossible for the legislature to decide in what areas and in respect of which factories the Employees State Insurance Corporation should be established. It is obvious that a scheme of this kind, though very beneficent, could not be introduced in the whole of the country all at once. Such beneficial measures which need careful experimentation have some times to be adopted by stages and in different phases, and so, inevitably, the question of extending the statutory benefits contemplated by the Act has to be left to the discretion of the appropriate Government."Appropriate Government under S. 2 (1) means in respect of establishments under the control of the Central Government or a railway administration or a major port or a mine or oilfield, the Central Government, and in all other cases, the State Government. Thus, it is clear that when extending the Act to different establishments, the relevant Government is given the power to constitute a Corporation for the administration of the scheme of Employees State Insurance. The course adopted by modern legislatures in dealing with welfare scheme has uniformly conformed to the same pattern. The legislature evolves a scheme of socio-economic welfare, makes elaborate provisions in respect of it and leaves it to the Government concerned to decide when, how and in what manner the scheme should be introduced. That, in our opinion, cannot amount to excessive delegation.6. The question of excessive delegation has been frequently considered by this Court and the approach to be adopted in dealing with it is no longer in doubt. In the Edward Mills Co. Ltd., Beawar v. State of Ajmer 1955-1 SCR 735 : ( (S) AIR 1955 SC 25 ) this Court repelled the challenge to the validity of S. 27 of the Minimum Wages Act, 1948 (No. XI of 1948), whereby power had been given to the appropriate Government to add to either part of the schedule any employment in respect of which it was of opinion that minimum wages shall be fixed by giving notification in a particular manner, and it was provided that on the issue of the notification, the scheme shall ,in its application to the State, be deemed to be amended accordingly. In dealing with this problem, this Court observed that there was an element of delegation implied in the provisions of S. 27, for the legislature, in a sense, authorised another body specified by it to do something which it might do itself; but it was held that such delegation was not unwarranted and unconstitutional and it did not exceed the limits of permissible delegation. To the same effect are the recent decisions of this Court in Bhikusa Yamasa v. Sangamner Akola Taluka Bidi Kamgar Union, Civil appeal No. 546 of 1961, D/- 10-10-1962: (AIR 1963 SC 806 ) and Bhikusa Yamasa Kshatriya (P) Ltd. v. Union of India, AIR 1963 SC 1591 . Therefore, we must hold that the impugned S. 1 (3) of the Act is not shown to be constitutionally invalid.7. Before we part with these appeals, there is one more point to which reference must be made. We have already mentioned that after the notification was issued under S. 1 (3) by respondent No. 3 appointing August 28, 1960 as the date on which some of the provisions of the Act should come into force in certain areas of the State of Bihar, the Chief Executive Officer of respondent No. 1 issued notices giving effect to the State Governments notification and intimating to the appellants that by reason of the said notification, the medical benefits which were being given to them in the past would be received by them under the relevant provisions of the Act. It was urged by the appellants before the High Court that these notices were invalid and should be struck down. The argument which was urged in support of this contention was that respondents No. 1 in all the three appeals were not entitled to curtail the benefits provided to the appellants by them and that the said benefits were not similar either qualitatively or quantitatively to the benefits under the Scheme which had been brought into force under the Act. The High Court has held that the question as to whether the notices and circulars issued by respondents No. 1 were invalid, could not be considered under Art. 226 of the Constitution; that is a matter which can be appropriately raised in the form of a dispute by the appellants under S. 10 of the Industrial Disputes. Act. It is true that the powers conferred on the High Courts under Art. 226 are very wide, but it is not suggested by Mr. Chatterjee that even these powers can take in within their sweep industrial disputes of the kind which this contention seeks to raise. Therefore, without expressing any opinion on the merits of the contention, we would confirm the finding of the High Court that the proper remedy which is available to the appellants to ventilate their grievances in respect of the said notices and circulars is to take recourse to Section 10 of the Industrial Disputes Act, or seek relief, if possible under Ss. 74 and 75 of the Act.
### Response:
0
### Explanation:
The Act does not prescribe any considerations in the light of which the Central Government can proceed to act under S. 1 (3) and such uncanalised power conferred on the Central Government must be treated as invalid. We are not impressed by this argument. Section 1 (3) is really not an illustration of delegated legislation at all; it is what can be properly described as conditional legislation. The Act has prescribed a self-contained Code in regard to the insurance of the employees covered by it; several remedial measures which the Legislature thought it necessary to enforce in regard to such workmen have been specifically dealt with and appropriate provisions have been made to carry out the policy of the Act as laid down in its relevant sections. Section 3(1) of the Act purports to authorise the Central Government to establish a Corporation for the administration of the scheme of Employees State Insurance by a notification. In other words, when the notification should be issued and in respect of what factories it should be issued, has been left to the discretion of the Central Government and that is precisely what is usually done by conditional legislation. What Lord Selborne said about the powers conferred on the Lieutenant-Governor by virtue of the relevant provisions of Act 22 of 1869 in Queen v. Burah, 5 Ind App 178 at p. 195 (PC) can be said with equal justification about the powers conferred on the Central Government by Section 1 (3).Assuming that there is an element of delegation, the plea is equally unsustainable, because there is enough guidance given by the relevant provisions of the Act and the very scheme of the Act itself. The preamble to the Act shows that it was passed because the legislature thought it expedient to provide for certain benefits to employees in case of sickness, maternity and employment injury and to make provision for certain other matters in relation thereto. So , the policy of the Act is unambiguous and clear. The material definitions of " benefit period, " sickness, " wages and other terms contained in S. 2 give a clear idea as to the nature of the factories to which the Act is intended to be applied, the class of persons for whose benefit it has been passed and the nature of the benefit which is intended to be conferred on them. Chapter II of the Act deals with the Corporation, Standing Committee and Medical Benefit Council and their constitution; Chapter III deals with the problem of finance and audit; Chapter IV makes provisions for contribution both by the employee and the employer, and Chapter V prescribes the benefits which have to be conferred on the workmen; it also gives general provisions in respect of those benefits. Chapter V-A deals with transitory provisions; Chapter VI deals with the adjudication of disputes and claims; and Chapter VII prescribes penalties. Chapter VIII which is the last Chapter, deals with miscellaneous matters. In the very nature of things, it would have been impossible for the legislature to decide in what areas and in respect of which factories the Employees State Insurance Corporation should be established. It is obvious that a scheme of this kind, though very beneficent, could not be introduced in the whole of the country all at once. Such beneficial measures which need careful experimentation have some times to be adopted by stages and in different phases, and so, inevitably, the question of extending the statutory benefits contemplated by the Act has to be left to the discretion of the appropriate Government."Appropriate Government under S. 2 (1) means in respect of establishments under the control of the Central Government or a railway administration or a major port or a mine or oilfield, the Central Government, and in all other cases, the State Government. Thus, it is clear that when extending the Act to different establishments, the relevant Government is given the power to constitute a Corporation for the administration of the scheme of Employees State Insurance. The course adopted by modern legislatures in dealing with welfare scheme has uniformly conformed to the same pattern. The legislature evolves a scheme of socio-economic welfare, makes elaborate provisions in respect of it and leaves it to the Government concerned to decide when, how and in what manner the scheme should be introduced. That, in our opinion, cannot amount to excessiveHigh Court has held that the question as to whether the notices and circulars issued by respondents No. 1 were invalid, could not be considered under Art. 226 of the Constitution; that is a matter which can be appropriately raised in the form of a dispute by the appellants under S. 10 of the Industrial Disputes. Act. It is true that the powers conferred on the High Courts under Art. 226 are very wide, but it is not suggested by Mr. Chatterjee that even these powers can take in within their sweep industrial disputes of the kind which this contention seeks to raise. Therefore, without expressing any opinion on the merits of the contention, we would confirm the finding of the High Court that the proper remedy which is available to the appellants to ventilate their grievances in respect of the said notices and circulars is to take recourse to Section 10 of the Industrial Disputes Act, or seek relief, if possible under Ss. 74 and 75 of the Act.
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N M Veerappa Vs. Canara Bank | Banking Regulation Act, 1949, as it now stands, would or would not help the Bank as against Order 34 Rule 11 CPC.23. We shall refer to the provision in Section 21-A of the Banking Regulation Act, 1949 as introduced by Act I/1984, w.e.f. 15.2.84. It reads: "S. 21A: Rates of interest charged by banking companies not to be subjected to scrutiny by Courts: - Notwithstanding anything contained in the Usurious Loans Act, 1918 or any other law relating to indebtedness in force in any State, a transaction between a banking company and its debtor shall not be re-opened by any Court on the ground that the rate of interest charged by the banking company in respect of such transaction is excessive." Firstly, it will be noticed that the effect of the "non-obstante clause" in Section 21-A is to override the Central Act, namely, the Usurious Loans Act, 1918 and any other "law relating to indebtedness in force in any State". Obviously it does not expressly intend to override the Code of Civil Procedure among the Central statutes. It is now well settled that the scope and width of the non-obstante clause is to be decided on basis of what is contained in the enacting part of the provision. (Ashwini Kumar Ghosh v. Arabinde Bose 1953 SCR 1). Further, by no stretch of imagination can the Code of Civil Procedure, 1908 be described as a `law relating to indebtedness in force in any State. As stated above, the provision in Section 21-A refers, so far as Central legislation is concerned, only to the Usurious Loans Act, 1918 and not to the Code of Civil Procedure, 1908 and it then refers to other laws relating to indebtedness in force in any State. Therefore, the provision of section 21-A of the Banking Regulation Act, 1984 cannot be held to have intended to override a Central legislation like the CPC or Order 34 Rule 11 CPC.24. Secondly, as stated by the Federal Court in Jaigobinds case, AIR 1940 FC 20 and by this Court in Soli Pestonji Majoos case, 1969(3) SCR 33, the discretionary power conferred on the Civil Court under Order 34 Rule 11 to cut down the contract rate of interest for the period from date of the suit and even upto the date fixed for redemption by the Court is very much there, even if there was no question of the rate being penal, excessive or substantially unfair within the meaning of the Usurious Loans Act, 1918. This Court observed in Soli Pestonji Majoos case (supra) as follows: " It is apparent that the new rule as inserted by the Amending Act 21 of 1929 provides that the Court `may order payment of interest to the mortgagee upto the date fixed for payment as the rate payable on the principal. It was held by the Federal Court in Jaigobind Singh v. Lachmi Narain in AIR 1940 FC 20 that the language of the rule gives a certain amount of discretion to the Court so far as interest pendente lite and subsequent interest is and it was no longer absolutely obligatory on the Courts to decree interest at the contractual rates upto the date of redemption in all the circumstances even if there is no question of the rate being penal, excessive or susbtantially unfair within the meaning of the Usurious Loans Act, 1918". In other words, the discretionary power given to the Court under Order 34 Rule 11 is an independent power and the power is neither traceable to Section 74 of the Contract Act nor to any State statutes permitting a Court to scale down contractual rates of interest.25. Coming to the decision of this Court in D.S. Gowdas case, it turned upon the power of the Court to re-open transactions of loan between Banks and its debtors and it was held that the directives/circulars issued by the Reserve Bank to Banks in respect of the rates of interest under Section 21 of the Banking Regulation Act, 1949 could not be declared by the Court as unfair or excessive and those directives/circulars were not violative of the Mysore Usurious Loans Act, 1923. This Court referred to section 21-A of the Banking Regulation Act, 1949 also but said that even if section 21-A was not applicable, there was no evidence adduced by the debtor that interest fixed in the directives/circulars of Reserve Bank of India were not fair. It was held that Courts could not question Reserve Bank directives as being irrational. At the same time it was also held that the Banks could not also ignore Reserve Bank directives/circulars and in given case, a Bank ignored the Reserve Bank circular/directives, the Court could reopen the transaction as to rate of interest, notwithstanding Section 21-A. We may also state that in an earlier case in Bank of Baroda v. Rednam Nagachaya Devi, 1989(4) SCC 470 where Section 21-A fell for consideration, the question which has now arisen before us did not arise. The above two rulings are therefore not helpful to the respondent-Bank.26. For the aforesaid reasons, we therefore do not think that the above decision in Corporation Bank v. D.S. Gowda, 1994(5) SCC 213 can help the respondent-Bank to contend that Section 21-A overrides the provision contained in Order 34 Rule 11 CPC.27. If, therefore, Section 21-A of the Banking Regulation Act, 1949 does not come to the aid of Banks vis-a-vis Order 34 Rule 11 CPC, the question whether for the period during the pendency of mortgage suits in Courts, the Courts discretion should continue or whether it should be fettered and if so to what extent and as to what rate of interest and whether there should be any distinction between different kinds of debtors - these are are all matters of policy for the legislature and it will be for Parliament to lay down its policies and bring forward such legislation as it may deem fit in accordance with the provisions of the Constitution of India. 28. | 1[ds]19. In the present case before us, the trial Court has gone into the facts and stated that the contract rate was not to be granted and that as the Court had discretion to grant interest, it was granting interest only at 6% simple from date of suit. The Court followed State Bank of Mysore v. G.P.Thulasi Bai ILR 1985 Karn. 2976. In that case, Jagannatha Shetty, J. (as he then was), speaking for the Bench, observed, referring to S.P. Majoo v. Gangadhar, 1969 (3) SCR 33 in which this Court referred to the Privy Council decision of 1927 and the Federal Courts decision of 1940, that it was no longer obligatory on the part of the Court to award the contractual rate, even if the rate was not penal, excessive or substantially unfair. In that Karnataka case too, the trial Judges award at 6% per annum simple from date of suit till date of realisation was affirmed. Unfortunately, the learned Single Judge of the High Court, in the present case before us, though he referred to the above Division Bench Judgment, still said that section 34 CPC was applicable. This was obviously wrong and contrary to the decisions of this Court and of the Karnataka High Court.20. We may here point out that so far interest prior to suit is concerned , the trial Judge in para 9 of his judgment reduced that rate also following D.S. Gowda v. Corporation Bank, AIR 1983 Karnataka 143. (This aspect we shall refer again when we come to Section 21-A of the Banking Regulation Act, 1949). That part of the judgment has become final. The judgement in the said case has no doubt been since reversed by this Court in Corporation Bank v. D.S. Gowda 1994(5) SCC 213 but the trial Court in para 11 of its Judgment in the present case did not rely on D.S. Gowdas case so far as future interest was concerned. Hence reversal of D.S.Gowda case has no bearing on this case so far as future interest from the date of suit is concerned.The Banking Regulation Act, 1949: Sections 21, 35 and Section 21-A- do not affect Order 34 Rule 11 CPC.We do notice the contention that if the Court has discretion to reduce the interest from date of suit and direct payment at a rate below the contractual rate, there could be considerable financial loss to the Banks. But initially we have to deal with the question as one of law and see if Section 21-A of the Banking Regulation Act, 1949, as it now stands, would or would not help the Bank as against Order 34 Rule 11 CPC.23. We shall refer to the provision in Section 21-A of the Banking Regulation Act, 1949 as introduced by Act I/1984, w.e.f. 15.2.84. It21A: Rates of interest charged by banking companies not to be subjected to scrutiny by Courts: - Notwithstanding anything contained in the Usurious Loans Act, 1918 or any other law relating to indebtedness in force in any State, a transaction between a banking company and its debtor shall not be re-opened by any Court on the ground that the rate of interest charged by the banking company in respect of such transaction isit will be noticed that the effect of the "non-obstante clause" in Section 21-A is to override the Central Act, namely, the Usurious Loans Act, 1918 and any other "law relating to indebtedness in force in any State". Obviously it does not expressly intend to override the Code of Civil Procedure among the Central statutes. It is now well settled that the scope and width of the non-obstante clause is to be decided on basis of what is contained in the enacting part of the provision. (Ashwini Kumar Ghosh v. Arabinde Bose 1953 SCR 1). Further, by no stretch of imagination can the Code of Civil Procedure, 1908 be described as a `law relating to indebtedness in force in any State. As stated above, the provision in Section 21-A refers, so far as Central legislation is concerned, only to the Usurious Loans Act, 1918 and not to the Code of Civil Procedure, 1908 and it then refers to other laws relating to indebtedness in force in any State. Therefore, the provision of section 21-A of the Banking Regulation Act, 1984 cannot be held to have intended to override a Central legislation like the CPC or Order 34 Rule 11 CPC.24. Secondly, as stated by the Federal Court in Jaigobinds case, AIR 1940 FC 20 and by this Court in Soli Pestonji Majoos case, 1969(3) SCR 33, the discretionary power conferred on the Civil Court under Order 34 Rule 11 to cut down the contract rate of interest for the period from date of the suit and even upto the date fixed for redemption by the Court is very much there, even if there was no question of the rate being penal, excessive or substantially unfair within the meaning of the Usurious Loans Act, 1918. This Court observed in Soli Pestonji Majoos case (supra) asIt is apparent that the new rule as inserted by the Amending Act 21 of 1929 provides that the Court `may order payment of interest to the mortgagee upto the date fixed for payment as the rate payable on the principal. It was held by the Federal Court in Jaigobind Singh v. Lachmi Narain in AIR 1940 FC 20 that the language of the rule gives a certain amount of discretion to the Court so far as interest pendente lite and subsequent interest is and it was no longer absolutely obligatory on the Courts to decree interest at the contractual rates upto the date of redemption in all the circumstances even if there is no question of the rate being penal, excessive or susbtantially unfair within the meaning of the Usurious Loans Act,other words, the discretionary power given to the Court under Order 34 Rule 11 is an independent power and the power is neither traceable to Section 74 of the Contract Act nor to any State statutes permitting a Court to scale down contractual rates of interest.25. Coming to the decision of this Court in D.S. Gowdas case, it turned upon the power of the Court to re-open transactions of loan between Banks and its debtors and it was held that the directives/circulars issued by the Reserve Bank to Banks in respect of the rates of interest under Section 21 of the Banking Regulation Act, 1949 could not be declared by the Court as unfair or excessive and those directives/circulars were not violative of the Mysore Usurious Loans Act, 1923. This Court referred to section 21-A of the Banking Regulation Act, 1949 also but said that even if section 21-A was not applicable, there was no evidence adduced by the debtor that interest fixed in the directives/circulars of Reserve Bank of India were not fair. It was held that Courts could not question Reserve Bank directives as being irrational. At the same time it was also held that the Banks could not also ignore Reserve Bank directives/circulars and in given case, a Bank ignored the Reserve Bank circular/directives, the Court could reopen the transaction as to rate of interest, notwithstanding Section 21-A. We may also state that in an earlier case in Bank of Baroda v. Rednam Nagachaya Devi, 1989(4) SCC 470 where Section 21-A fell for consideration, the question which has now arisen before us did not arise. The above two rulings are therefore not helpful to the respondent-Bank.26. For the aforesaid reasons, we therefore do not think that the above decision in Corporation Bank v. D.S. Gowda, 1994(5) SCC 213 can help the respondent-Bank to contend that Section 21-A overrides the provision contained in Order 34 Rule 11 CPC.27. If, therefore, Section 21-A of the Banking Regulation Act, 1949 does not come to the aid of Banks vis-a-vis Order 34 Rule 11 CPC, the question whether for the period during the pendency of mortgage suits in Courts, the Courts discretion should continue or whether it should be fettered and if so to what extent and as to what rate of interest and whether there should be any distinction between different kinds of debtors - these are are all matters of policy for the legislature and it will be for Parliament to lay down its policies and bring forward such legislation as it may deem fit in accordance with the provisions of the Constitution of India. | 1 | 5,243 | 1,556 | ### 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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Banking Regulation Act, 1949, as it now stands, would or would not help the Bank as against Order 34 Rule 11 CPC.23. We shall refer to the provision in Section 21-A of the Banking Regulation Act, 1949 as introduced by Act I/1984, w.e.f. 15.2.84. It reads: "S. 21A: Rates of interest charged by banking companies not to be subjected to scrutiny by Courts: - Notwithstanding anything contained in the Usurious Loans Act, 1918 or any other law relating to indebtedness in force in any State, a transaction between a banking company and its debtor shall not be re-opened by any Court on the ground that the rate of interest charged by the banking company in respect of such transaction is excessive." Firstly, it will be noticed that the effect of the "non-obstante clause" in Section 21-A is to override the Central Act, namely, the Usurious Loans Act, 1918 and any other "law relating to indebtedness in force in any State". Obviously it does not expressly intend to override the Code of Civil Procedure among the Central statutes. It is now well settled that the scope and width of the non-obstante clause is to be decided on basis of what is contained in the enacting part of the provision. (Ashwini Kumar Ghosh v. Arabinde Bose 1953 SCR 1). Further, by no stretch of imagination can the Code of Civil Procedure, 1908 be described as a `law relating to indebtedness in force in any State. As stated above, the provision in Section 21-A refers, so far as Central legislation is concerned, only to the Usurious Loans Act, 1918 and not to the Code of Civil Procedure, 1908 and it then refers to other laws relating to indebtedness in force in any State. Therefore, the provision of section 21-A of the Banking Regulation Act, 1984 cannot be held to have intended to override a Central legislation like the CPC or Order 34 Rule 11 CPC.24. Secondly, as stated by the Federal Court in Jaigobinds case, AIR 1940 FC 20 and by this Court in Soli Pestonji Majoos case, 1969(3) SCR 33, the discretionary power conferred on the Civil Court under Order 34 Rule 11 to cut down the contract rate of interest for the period from date of the suit and even upto the date fixed for redemption by the Court is very much there, even if there was no question of the rate being penal, excessive or substantially unfair within the meaning of the Usurious Loans Act, 1918. This Court observed in Soli Pestonji Majoos case (supra) as follows: " It is apparent that the new rule as inserted by the Amending Act 21 of 1929 provides that the Court `may order payment of interest to the mortgagee upto the date fixed for payment as the rate payable on the principal. It was held by the Federal Court in Jaigobind Singh v. Lachmi Narain in AIR 1940 FC 20 that the language of the rule gives a certain amount of discretion to the Court so far as interest pendente lite and subsequent interest is and it was no longer absolutely obligatory on the Courts to decree interest at the contractual rates upto the date of redemption in all the circumstances even if there is no question of the rate being penal, excessive or susbtantially unfair within the meaning of the Usurious Loans Act, 1918". In other words, the discretionary power given to the Court under Order 34 Rule 11 is an independent power and the power is neither traceable to Section 74 of the Contract Act nor to any State statutes permitting a Court to scale down contractual rates of interest.25. Coming to the decision of this Court in D.S. Gowdas case, it turned upon the power of the Court to re-open transactions of loan between Banks and its debtors and it was held that the directives/circulars issued by the Reserve Bank to Banks in respect of the rates of interest under Section 21 of the Banking Regulation Act, 1949 could not be declared by the Court as unfair or excessive and those directives/circulars were not violative of the Mysore Usurious Loans Act, 1923. This Court referred to section 21-A of the Banking Regulation Act, 1949 also but said that even if section 21-A was not applicable, there was no evidence adduced by the debtor that interest fixed in the directives/circulars of Reserve Bank of India were not fair. It was held that Courts could not question Reserve Bank directives as being irrational. At the same time it was also held that the Banks could not also ignore Reserve Bank directives/circulars and in given case, a Bank ignored the Reserve Bank circular/directives, the Court could reopen the transaction as to rate of interest, notwithstanding Section 21-A. We may also state that in an earlier case in Bank of Baroda v. Rednam Nagachaya Devi, 1989(4) SCC 470 where Section 21-A fell for consideration, the question which has now arisen before us did not arise. The above two rulings are therefore not helpful to the respondent-Bank.26. For the aforesaid reasons, we therefore do not think that the above decision in Corporation Bank v. D.S. Gowda, 1994(5) SCC 213 can help the respondent-Bank to contend that Section 21-A overrides the provision contained in Order 34 Rule 11 CPC.27. If, therefore, Section 21-A of the Banking Regulation Act, 1949 does not come to the aid of Banks vis-a-vis Order 34 Rule 11 CPC, the question whether for the period during the pendency of mortgage suits in Courts, the Courts discretion should continue or whether it should be fettered and if so to what extent and as to what rate of interest and whether there should be any distinction between different kinds of debtors - these are are all matters of policy for the legislature and it will be for Parliament to lay down its policies and bring forward such legislation as it may deem fit in accordance with the provisions of the Constitution of India. 28.
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### Explanation:
the question as one of law and see if Section 21-A of the Banking Regulation Act, 1949, as it now stands, would or would not help the Bank as against Order 34 Rule 11 CPC.23. We shall refer to the provision in Section 21-A of the Banking Regulation Act, 1949 as introduced by Act I/1984, w.e.f. 15.2.84. It21A: Rates of interest charged by banking companies not to be subjected to scrutiny by Courts: - Notwithstanding anything contained in the Usurious Loans Act, 1918 or any other law relating to indebtedness in force in any State, a transaction between a banking company and its debtor shall not be re-opened by any Court on the ground that the rate of interest charged by the banking company in respect of such transaction isit will be noticed that the effect of the "non-obstante clause" in Section 21-A is to override the Central Act, namely, the Usurious Loans Act, 1918 and any other "law relating to indebtedness in force in any State". Obviously it does not expressly intend to override the Code of Civil Procedure among the Central statutes. It is now well settled that the scope and width of the non-obstante clause is to be decided on basis of what is contained in the enacting part of the provision. (Ashwini Kumar Ghosh v. Arabinde Bose 1953 SCR 1). Further, by no stretch of imagination can the Code of Civil Procedure, 1908 be described as a `law relating to indebtedness in force in any State. As stated above, the provision in Section 21-A refers, so far as Central legislation is concerned, only to the Usurious Loans Act, 1918 and not to the Code of Civil Procedure, 1908 and it then refers to other laws relating to indebtedness in force in any State. Therefore, the provision of section 21-A of the Banking Regulation Act, 1984 cannot be held to have intended to override a Central legislation like the CPC or Order 34 Rule 11 CPC.24. Secondly, as stated by the Federal Court in Jaigobinds case, AIR 1940 FC 20 and by this Court in Soli Pestonji Majoos case, 1969(3) SCR 33, the discretionary power conferred on the Civil Court under Order 34 Rule 11 to cut down the contract rate of interest for the period from date of the suit and even upto the date fixed for redemption by the Court is very much there, even if there was no question of the rate being penal, excessive or substantially unfair within the meaning of the Usurious Loans Act, 1918. This Court observed in Soli Pestonji Majoos case (supra) asIt is apparent that the new rule as inserted by the Amending Act 21 of 1929 provides that the Court `may order payment of interest to the mortgagee upto the date fixed for payment as the rate payable on the principal. It was held by the Federal Court in Jaigobind Singh v. Lachmi Narain in AIR 1940 FC 20 that the language of the rule gives a certain amount of discretion to the Court so far as interest pendente lite and subsequent interest is and it was no longer absolutely obligatory on the Courts to decree interest at the contractual rates upto the date of redemption in all the circumstances even if there is no question of the rate being penal, excessive or susbtantially unfair within the meaning of the Usurious Loans Act,other words, the discretionary power given to the Court under Order 34 Rule 11 is an independent power and the power is neither traceable to Section 74 of the Contract Act nor to any State statutes permitting a Court to scale down contractual rates of interest.25. Coming to the decision of this Court in D.S. Gowdas case, it turned upon the power of the Court to re-open transactions of loan between Banks and its debtors and it was held that the directives/circulars issued by the Reserve Bank to Banks in respect of the rates of interest under Section 21 of the Banking Regulation Act, 1949 could not be declared by the Court as unfair or excessive and those directives/circulars were not violative of the Mysore Usurious Loans Act, 1923. This Court referred to section 21-A of the Banking Regulation Act, 1949 also but said that even if section 21-A was not applicable, there was no evidence adduced by the debtor that interest fixed in the directives/circulars of Reserve Bank of India were not fair. It was held that Courts could not question Reserve Bank directives as being irrational. At the same time it was also held that the Banks could not also ignore Reserve Bank directives/circulars and in given case, a Bank ignored the Reserve Bank circular/directives, the Court could reopen the transaction as to rate of interest, notwithstanding Section 21-A. We may also state that in an earlier case in Bank of Baroda v. Rednam Nagachaya Devi, 1989(4) SCC 470 where Section 21-A fell for consideration, the question which has now arisen before us did not arise. The above two rulings are therefore not helpful to the respondent-Bank.26. For the aforesaid reasons, we therefore do not think that the above decision in Corporation Bank v. D.S. Gowda, 1994(5) SCC 213 can help the respondent-Bank to contend that Section 21-A overrides the provision contained in Order 34 Rule 11 CPC.27. If, therefore, Section 21-A of the Banking Regulation Act, 1949 does not come to the aid of Banks vis-a-vis Order 34 Rule 11 CPC, the question whether for the period during the pendency of mortgage suits in Courts, the Courts discretion should continue or whether it should be fettered and if so to what extent and as to what rate of interest and whether there should be any distinction between different kinds of debtors - these are are all matters of policy for the legislature and it will be for Parliament to lay down its policies and bring forward such legislation as it may deem fit in accordance with the provisions of the Constitution of India.
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T.N. Saxena and Others Vs. State of Uttar Pradesh and Others | or turn, the direct recruits vacancy arose. Seniority will depend on the length of continuous officiating service and cannot be upset by later arrivals from the open market save to the extent to which any excess promotees may have to be pushed down as indicated earlier.+ + + +Seniority, normally, is measured by length of continuous, officiating service-the actual is easily accepted as the legal. This does not preclude a different prescription, constitutionally tests being satisfied.+ + + +Promotees regularly appointed during period in excess of their quota, for want of direct recruits (reasonably sought but not secured and because tarrying longer would injure the administration) can claim their whole length of service for seniority even against direct recruits who may turn up in succeeding periods.Promotees who have been fitted into vacancies beyond their quota during the period B-the year being regarded as the unit-must suffer survival as invalid appointees acquiring new life when vacancies in their quota fall to be filled up. To that extent they will step down, rather be pushed down as against direct recruits who were later but regularly appointed within their quota."7. This case clearly laid down three important principles.(1) Normal rule is that seniority should be measured by the length of continuous officiating service unless a contrary intention appears from the rules.We have already shown from the Rules framed by the Government that the length of service was determined as the prime criteria for determining the seniority.(2) Promotees regularly appointed during a particular period in excess of their quota for want of direct recruits can claim their whole length of service for s eniority even against direct recruits who may turn up in succeeding periods.(3) Promotees who had exceeded their quota would have to be pushed down to accommodate direct recruits coming after their appointment.The case of respondents 2 to 5 clearly falls within the first two principles.8. The admitted position is that respondents 2 to 5 had not exceeded their quota of 50% when they were promoted as Senior Marketing Inspectors. In fact, they were promote d as Senior Marketing Inspectors long before the Government evolved the policy of filling up the posts of Senior Marketing Inspectors by direct recruits. It is also clear that none of the respondents had encroached on the 50% quota which w as reserved for direct recruits under the new Rules framed by the Government.9. In these circumstances, therefore, it was not open to the Government to prepare a seniority list by pushing the promotees far below the position of seniority which they would legally occupy merely to accommodate the direct recruits. The rule of alternate seniority does not mean that the genuine seniority based on length of service by a previous employee should be completely overlooked or obliterated.10. Reliance was, however, placed on an earlier decision of this Court in Bishan Sarup Gupta etc. v. Union of India and Ors.11. In this case also it was clearly held that the promotees could be pushed down only if they had exceeded the q uota allotted to them. In the instant case not only the respondents 2-5 did not exceed their quota but had secured much higher promotions by the time the direct recruits came to be recruited and had to be reverted to lower posts in order t o accommodate the direct recruits. Such a gross injustice, in our opinion, cannot be countenanced by the rules or orders made by the Government nor can such a course of action be spelt out from Bishan Sarup Guptas case (supra).In B. S. Yadav and Ors. v. State of Haryana and Ors. the earlier decision of this Court in Chauhans case (supra) was reiterated and Chandrachud, CJ speaking for the Court observed thus:"Is it proper and fair to defer the confirmation of the promotees merely because direct recruits are not available at that point of time so as to enable the High Court to make confirmations from both the sources by rotation ? This, precisely, is what the High Court has done by t he impugned notification dated 25-8-1976 and that is the reason why it has not confirmed ten more promotees in Punjab, for whom vacancies are available within the quota of promotees.... ... ...What is relevant is the decision of the Court that the quota rule will be enforced at the time of initial recruitment and not at the time of confirmation ?... Seniority of promotees, according to this decision, could not be upset by later arrivals from the open market, save to the extent to which any excess promotees have to be pushed down."12. It is, therefore, clear from an analysis of the decisions of this Court cited before us that the quota rule and the rota rule must be applied in a practical fashion so as not to cause injustice to any employee. In the instant case, as the Government by virtue of the impugned seniority list had completely upset the seniority of respondents 2 to 5, the principles governing the order were directly opposed to what has been held and pointed out by this Court. The High Court, in our opinion, was fully justified in quashing the seniority list.13. Lastly, it was contended that the High Court while striking down the seniority list has not struck down the Government Order which had fixed the rota and the quota rule. As indicated above, if the rota and the quota rules are properly interpreted, as held by this Court in the cases cited above, the Government order cannot be said to be bad or legally invalid. The defect lay in the Government itself misconstruing its own order while issuing the seniority list, which error was rightly corrected by the High Court.T he Government shall now issue a fresh seniority list in the light of the observations made and principles enunciated by this Court and the High Court so as to avoid any reversion of promotees who had been promoted within their quota as senior Marketing Inspectors or above.14. | 0[ds]A perusal of this letter would clearly show that the quota of the promoted Senior Marketing Inspectors was not at all touched or altered and even the age-limit for the candidates who had been promoted was extended upto 40 years and it is not disputed that respondents 2 to 5 were within thatHigh Court has rightly construed the aforesaid Rule of seniority to connote that appointments already made by departmental promotion to substantive posts would not be affected by the direct recruits coming subsequently through the Public Service Commission. Reliance was, however, placed by the appellants on the 2nd paragraph of the Rule which stated that the combined list was to be prepared by taking candidates alternately from the list of promoted candidates and direct recruits. This clause has to be interpreted rationally so as to advance the real object of the Government which was merely to enlarge the area of recruitment of Senior Marketing Inspectors without affecting the persons who had already been promoted to the higher post long before even the policy of taking direct recruits through Public Service Commission was born. Unfortunately however after the direct recruits were taken as Senior Marketing Inspectors, sometime after 1 970 they were put above respondents 2 to 5 who, by the time the direct recruits were appointed, had already been promoted even to a higher post, viz., Deputy Marketing Regional Officers. The High Court relied on a Government order setting out guidelines relating to seniority which has already been extracted above.Perhaps the Government was under the impression that as the quota of 50% was reserved for direct recruits and they had come through competitive examination with higher qualifications, they would have to take precedence over the promotees even though the promotee had occupied the post in their own quota long before the direct recruits appeared on the scence. Under this erroneous impression the Government issu ed the impugned seniority list of 1977 which has, in our opinion, rightly been quashed by the Highfirst point raised by the counsel for the appellants was that in view of the fact that the direct recruits possessed a higher qualification and were recruited through the Public Service Commission, they had to be given priority in respect of seniority over thewas further argued that as a result of the Government Orders, the direct recruits had to be adjusted alternately with the promotees even though the promotees had been appointed in their own quota long before the direct recruits joined the service. We are, however, unable to agree with this somewhat broad and ingenious argument. It is true that where there are two sources of recruitment and the Rules expressly provide that one source would have precedence over the other, then the position as contended by the counsel for the appellants would have to be accepted. In the instant case, we are unable to find any such inhibition or prohibition in the order passed by theis, therefore, clear from an analysis of the decisions of this Court cited before us that the quota rule and the rota rule must be applied in a practical fashion so as not to cause injustice to any employee. In the instant case, as the Government by virtue of the impugned seniority list had completely upset the seniority of respondents 2 to 5, the principles governing the order were directly opposed to what has been held and pointed out by this Court. The High Court, in our opinion, was fully justified in quashing the seniorityit was contended that the High Court while striking down the seniority list has not struck down the Government Order which had fixed the rota and the quota rule. As indicated above, if the rota and the quota rules are properly interpreted, as held by this Court in the cases cited above, the Government order cannot be said to be bad or legally invalid. The defect lay in the Government itself misconstruing its own order while issuing the seniority list, which error was rightly corrected by the High Court.T he Government shall now issue a fresh seniority list in the light of the observations made and principles enunciated by this Court and the High Court so as to avoid any reversion of promotees who had been promoted within their quota as senior Marketing Inspectors or above. | 0 | 2,775 | 764 | ### 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:
or turn, the direct recruits vacancy arose. Seniority will depend on the length of continuous officiating service and cannot be upset by later arrivals from the open market save to the extent to which any excess promotees may have to be pushed down as indicated earlier.+ + + +Seniority, normally, is measured by length of continuous, officiating service-the actual is easily accepted as the legal. This does not preclude a different prescription, constitutionally tests being satisfied.+ + + +Promotees regularly appointed during period in excess of their quota, for want of direct recruits (reasonably sought but not secured and because tarrying longer would injure the administration) can claim their whole length of service for seniority even against direct recruits who may turn up in succeeding periods.Promotees who have been fitted into vacancies beyond their quota during the period B-the year being regarded as the unit-must suffer survival as invalid appointees acquiring new life when vacancies in their quota fall to be filled up. To that extent they will step down, rather be pushed down as against direct recruits who were later but regularly appointed within their quota."7. This case clearly laid down three important principles.(1) Normal rule is that seniority should be measured by the length of continuous officiating service unless a contrary intention appears from the rules.We have already shown from the Rules framed by the Government that the length of service was determined as the prime criteria for determining the seniority.(2) Promotees regularly appointed during a particular period in excess of their quota for want of direct recruits can claim their whole length of service for s eniority even against direct recruits who may turn up in succeeding periods.(3) Promotees who had exceeded their quota would have to be pushed down to accommodate direct recruits coming after their appointment.The case of respondents 2 to 5 clearly falls within the first two principles.8. The admitted position is that respondents 2 to 5 had not exceeded their quota of 50% when they were promoted as Senior Marketing Inspectors. In fact, they were promote d as Senior Marketing Inspectors long before the Government evolved the policy of filling up the posts of Senior Marketing Inspectors by direct recruits. It is also clear that none of the respondents had encroached on the 50% quota which w as reserved for direct recruits under the new Rules framed by the Government.9. In these circumstances, therefore, it was not open to the Government to prepare a seniority list by pushing the promotees far below the position of seniority which they would legally occupy merely to accommodate the direct recruits. The rule of alternate seniority does not mean that the genuine seniority based on length of service by a previous employee should be completely overlooked or obliterated.10. Reliance was, however, placed on an earlier decision of this Court in Bishan Sarup Gupta etc. v. Union of India and Ors.11. In this case also it was clearly held that the promotees could be pushed down only if they had exceeded the q uota allotted to them. In the instant case not only the respondents 2-5 did not exceed their quota but had secured much higher promotions by the time the direct recruits came to be recruited and had to be reverted to lower posts in order t o accommodate the direct recruits. Such a gross injustice, in our opinion, cannot be countenanced by the rules or orders made by the Government nor can such a course of action be spelt out from Bishan Sarup Guptas case (supra).In B. S. Yadav and Ors. v. State of Haryana and Ors. the earlier decision of this Court in Chauhans case (supra) was reiterated and Chandrachud, CJ speaking for the Court observed thus:"Is it proper and fair to defer the confirmation of the promotees merely because direct recruits are not available at that point of time so as to enable the High Court to make confirmations from both the sources by rotation ? This, precisely, is what the High Court has done by t he impugned notification dated 25-8-1976 and that is the reason why it has not confirmed ten more promotees in Punjab, for whom vacancies are available within the quota of promotees.... ... ...What is relevant is the decision of the Court that the quota rule will be enforced at the time of initial recruitment and not at the time of confirmation ?... Seniority of promotees, according to this decision, could not be upset by later arrivals from the open market, save to the extent to which any excess promotees have to be pushed down."12. It is, therefore, clear from an analysis of the decisions of this Court cited before us that the quota rule and the rota rule must be applied in a practical fashion so as not to cause injustice to any employee. In the instant case, as the Government by virtue of the impugned seniority list had completely upset the seniority of respondents 2 to 5, the principles governing the order were directly opposed to what has been held and pointed out by this Court. The High Court, in our opinion, was fully justified in quashing the seniority list.13. Lastly, it was contended that the High Court while striking down the seniority list has not struck down the Government Order which had fixed the rota and the quota rule. As indicated above, if the rota and the quota rules are properly interpreted, as held by this Court in the cases cited above, the Government order cannot be said to be bad or legally invalid. The defect lay in the Government itself misconstruing its own order while issuing the seniority list, which error was rightly corrected by the High Court.T he Government shall now issue a fresh seniority list in the light of the observations made and principles enunciated by this Court and the High Court so as to avoid any reversion of promotees who had been promoted within their quota as senior Marketing Inspectors or above.14.
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0
### Explanation:
A perusal of this letter would clearly show that the quota of the promoted Senior Marketing Inspectors was not at all touched or altered and even the age-limit for the candidates who had been promoted was extended upto 40 years and it is not disputed that respondents 2 to 5 were within thatHigh Court has rightly construed the aforesaid Rule of seniority to connote that appointments already made by departmental promotion to substantive posts would not be affected by the direct recruits coming subsequently through the Public Service Commission. Reliance was, however, placed by the appellants on the 2nd paragraph of the Rule which stated that the combined list was to be prepared by taking candidates alternately from the list of promoted candidates and direct recruits. This clause has to be interpreted rationally so as to advance the real object of the Government which was merely to enlarge the area of recruitment of Senior Marketing Inspectors without affecting the persons who had already been promoted to the higher post long before even the policy of taking direct recruits through Public Service Commission was born. Unfortunately however after the direct recruits were taken as Senior Marketing Inspectors, sometime after 1 970 they were put above respondents 2 to 5 who, by the time the direct recruits were appointed, had already been promoted even to a higher post, viz., Deputy Marketing Regional Officers. The High Court relied on a Government order setting out guidelines relating to seniority which has already been extracted above.Perhaps the Government was under the impression that as the quota of 50% was reserved for direct recruits and they had come through competitive examination with higher qualifications, they would have to take precedence over the promotees even though the promotee had occupied the post in their own quota long before the direct recruits appeared on the scence. Under this erroneous impression the Government issu ed the impugned seniority list of 1977 which has, in our opinion, rightly been quashed by the Highfirst point raised by the counsel for the appellants was that in view of the fact that the direct recruits possessed a higher qualification and were recruited through the Public Service Commission, they had to be given priority in respect of seniority over thewas further argued that as a result of the Government Orders, the direct recruits had to be adjusted alternately with the promotees even though the promotees had been appointed in their own quota long before the direct recruits joined the service. We are, however, unable to agree with this somewhat broad and ingenious argument. It is true that where there are two sources of recruitment and the Rules expressly provide that one source would have precedence over the other, then the position as contended by the counsel for the appellants would have to be accepted. In the instant case, we are unable to find any such inhibition or prohibition in the order passed by theis, therefore, clear from an analysis of the decisions of this Court cited before us that the quota rule and the rota rule must be applied in a practical fashion so as not to cause injustice to any employee. In the instant case, as the Government by virtue of the impugned seniority list had completely upset the seniority of respondents 2 to 5, the principles governing the order were directly opposed to what has been held and pointed out by this Court. The High Court, in our opinion, was fully justified in quashing the seniorityit was contended that the High Court while striking down the seniority list has not struck down the Government Order which had fixed the rota and the quota rule. As indicated above, if the rota and the quota rules are properly interpreted, as held by this Court in the cases cited above, the Government order cannot be said to be bad or legally invalid. The defect lay in the Government itself misconstruing its own order while issuing the seniority list, which error was rightly corrected by the High Court.T he Government shall now issue a fresh seniority list in the light of the observations made and principles enunciated by this Court and the High Court so as to avoid any reversion of promotees who had been promoted within their quota as senior Marketing Inspectors or above.
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Hemiben Ladhabhai Bhanderi Vs. Saurashta Gramin Bank & Anr | SCDRC . 3. The spouse of the appellant, Ladhabhai Thakarsibhai Bhanderi, was an account holder with the first respondent at its Dhutarpur Branch in the District of Jamnagar in Gujarat. Oriental Insurance Company Limited had launched a group individual accident policy for the account holders of the Bank. Under the terms of the agreement between the insurer and the Bank, the account holder was required to submit a form to the concerned officer of the Bank in order to avail of an insurance cover. The Bank would deduct an amount of Rs 100 as premium from the account holder and forward it to the insurer. An insurance cover of Rs 5 lakhs was offered. The case of the appellant is that on 21 July 2008, her spouse obtained an insurance form from the Bank and submitted it to its Manager. He met with an accident on 1 August 2008 while travelling on his motorcycle and succumbed to his injuries on 11 August 2008. Based on a case of accidental death, the appellant claimed an entitlement to receive a compensation of Rs 5 lakhs under the insurance claim. The insurer repudiated the claim on the ground that the premium had not been forwarded by the Bank together with the form. The Bank took the objection that the form had not been submitted in time by the deceased and that after submitting it initially on 28 July 2008, he had taken it back to discuss the matter with his relatives. 4. The District Consumer Disputes Redressal Forum District Forum allowed the complaint on 28 January 2013 and came to the conclusion that the Bank had been negligent in not forwarding the form submitted by the deceased to the insurer within time after completion of all the formalities. There being no insurance cover, the insured was held not to be liable. The Bank was directed to pay the appellant an amount of Rs 5 lakhs with interest at the rate of 6 per cent per annum from 20 August 2009 together with an additional amount of Rs 2,000 towards mental agony ad Rs1,500 towards costs. 5. The order was confirmed in appeal by the SCDRC on 28 June 2013. In a revision filed by the Bank, the NCDRC reiterated the finding that the insurer could not be held liable in the absence of an insurance cover. However, the Bank was held guilty of a deficiency of service and was directed to pay an amount of Rs 2 lakhs (instead of Rs 5 lakhs as awarded by the consumer fora) within a period of 45 days. 6. The appellant, as the legal heir of the deceased, is hence in appeal. 7. The submission which has been urged on behalf of the appellant is that the NCDRC has accepted the position that the Bank was guilty of a deficiency of service. However, it was urged that the amount of compensation has been reduced from Rs 5 lakhs to Rs 2 lakhs without any justification. On the other hand, it has been urged on behalf of the first respondent that the Bank had all along taken the defence that the form, though initially filled up on 28 July 2008, had been taken back by the deceased and that it was resubmitted only after office hours on 9 August 2008. In the meantime, as a result of the accident which took place on 1 August 2008, the account holder died on 10 August 2008 of which the Bank was intimated on the next day. In these circumstances, it was urged that there was no deficiency of service on the part of the Bank. The Bank has complied with the order of the NCDRC by handing over a cheque in an amount of Rs 2 lakhs to the appellant. The appellant has declined to encash the cheque of Rs 2 lakhs paid towards compensation on the ground that she is entitled to the full compensation of Rs 5 lakhs as awarded by the District Forum. 8. Insofar as the deficiency of service on the part of the Bank is concerned, there are concurrent findings. The NCDRC confirmed that there was a deficiency of service on the part of the Bank. Before it, the Bank admitted that no receipt was given by it to anyone depositing the application form. As a matter of fact, it has also emerged from the record that three persons Rasik Gordhanbhai Dobariya, Harjibhai Bhanderi and the spouse of the appellant had submitted forms on the same day which had Serial Nos 351, 352 and 353. The defence of the Bank that the deceased had withdrawn the form and that it was eventually submitted on 9 August 2008, when a fresh Serial No 358 was allotted has been rejected by the District Forum and by the SCDRC. The NCDRC has observed that the Bank has not explained the details of the application form mentioned at Serial No 352. There is a specific finding of fact that it was the failure of the Bank to deduct the premium and to pay it over the insurer which resulted in the insurer repudiating the claim on the ground that no insurance cover existed. No insurance cover came into existence. There are concurrent findings of fact by the three fora. We have no reason to take a different view, particularly, when the Bank has not challenged the judgment of the NCDRC. The Banks explanations are an eye-wash and a thinly disguised attempt to defeat a legitimate grievance. There was an evident deficiency of service on its part. Evidently, there was a deficiency of service on the part of the Bank in failing to forward the application form to the insurer and in deducting the insurance premium on time. Had the Bank not been deficient in the performance of its services, the deceased would have been entitled to an insurance cover in the same terms as was provided by the insurer to all other account holders desirous of obtaining insurance. | 1[ds]The Bank has complied with the order of the NCDRC by handing over a cheque in an amount of Rs 2 lakhs to the appellant. The appellant has declined to encash the cheque of Rs 2 lakhs paid towards compensation on the ground that she is entitled to the full compensation of Rs 5 lakhs as awarded by the District Forum8. Insofar as the deficiency of service on the part of the Bank is concerned, there are concurrent findings. The NCDRC confirmed that there was a deficiency of service on the part of the Bank. Before it, the Bank admitted that no receipt was given by it to anyone depositing the application form. As a matter of fact, it has also emerged from the record that three persons Rasik Gordhanbhai Dobariya, Harjibhai Bhanderi and the spouse of the appellant had submitted forms on the same day which had Serial Nos 351, 352 and 353. The defence of the Bank that the deceased had withdrawn the form and that it was eventually submitted on 9 August 2008, when a fresh Serial No 358 was allotted has been rejected by the District Forum and by the SCDRC. The NCDRC has observed that the Bank has not explained the details of the application form mentioned at Serial No 352. There is a specific finding of fact that it was the failure of the Bank to deduct the premium and to pay it over the insurer which resulted in the insurer repudiating the claim on the ground that no insurance cover existed. No insurance cover came into existence. There are concurrent findings of fact by the three fora. We have no reason to take a different view, particularly, when the Bank has not challenged the judgment of the NCDRC. The Banks explanations are an eye-wash and a thinly disguised attempt to defeat a legitimate grievance. There was an evident deficiency of service on its part. Evidently, there was a deficiency of service on the part of the Bank in failing to forward the application form to the insurer and in deducting the insurance premium on time. Had the Bank not been deficient in the performance of its services, the deceased would have been entitled to an insurance cover in the same terms as was provided by the insurer to all other account holders desirous of obtaining insurance. | 1 | 1,114 | 423 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
SCDRC . 3. The spouse of the appellant, Ladhabhai Thakarsibhai Bhanderi, was an account holder with the first respondent at its Dhutarpur Branch in the District of Jamnagar in Gujarat. Oriental Insurance Company Limited had launched a group individual accident policy for the account holders of the Bank. Under the terms of the agreement between the insurer and the Bank, the account holder was required to submit a form to the concerned officer of the Bank in order to avail of an insurance cover. The Bank would deduct an amount of Rs 100 as premium from the account holder and forward it to the insurer. An insurance cover of Rs 5 lakhs was offered. The case of the appellant is that on 21 July 2008, her spouse obtained an insurance form from the Bank and submitted it to its Manager. He met with an accident on 1 August 2008 while travelling on his motorcycle and succumbed to his injuries on 11 August 2008. Based on a case of accidental death, the appellant claimed an entitlement to receive a compensation of Rs 5 lakhs under the insurance claim. The insurer repudiated the claim on the ground that the premium had not been forwarded by the Bank together with the form. The Bank took the objection that the form had not been submitted in time by the deceased and that after submitting it initially on 28 July 2008, he had taken it back to discuss the matter with his relatives. 4. The District Consumer Disputes Redressal Forum District Forum allowed the complaint on 28 January 2013 and came to the conclusion that the Bank had been negligent in not forwarding the form submitted by the deceased to the insurer within time after completion of all the formalities. There being no insurance cover, the insured was held not to be liable. The Bank was directed to pay the appellant an amount of Rs 5 lakhs with interest at the rate of 6 per cent per annum from 20 August 2009 together with an additional amount of Rs 2,000 towards mental agony ad Rs1,500 towards costs. 5. The order was confirmed in appeal by the SCDRC on 28 June 2013. In a revision filed by the Bank, the NCDRC reiterated the finding that the insurer could not be held liable in the absence of an insurance cover. However, the Bank was held guilty of a deficiency of service and was directed to pay an amount of Rs 2 lakhs (instead of Rs 5 lakhs as awarded by the consumer fora) within a period of 45 days. 6. The appellant, as the legal heir of the deceased, is hence in appeal. 7. The submission which has been urged on behalf of the appellant is that the NCDRC has accepted the position that the Bank was guilty of a deficiency of service. However, it was urged that the amount of compensation has been reduced from Rs 5 lakhs to Rs 2 lakhs without any justification. On the other hand, it has been urged on behalf of the first respondent that the Bank had all along taken the defence that the form, though initially filled up on 28 July 2008, had been taken back by the deceased and that it was resubmitted only after office hours on 9 August 2008. In the meantime, as a result of the accident which took place on 1 August 2008, the account holder died on 10 August 2008 of which the Bank was intimated on the next day. In these circumstances, it was urged that there was no deficiency of service on the part of the Bank. The Bank has complied with the order of the NCDRC by handing over a cheque in an amount of Rs 2 lakhs to the appellant. The appellant has declined to encash the cheque of Rs 2 lakhs paid towards compensation on the ground that she is entitled to the full compensation of Rs 5 lakhs as awarded by the District Forum. 8. Insofar as the deficiency of service on the part of the Bank is concerned, there are concurrent findings. The NCDRC confirmed that there was a deficiency of service on the part of the Bank. Before it, the Bank admitted that no receipt was given by it to anyone depositing the application form. As a matter of fact, it has also emerged from the record that three persons Rasik Gordhanbhai Dobariya, Harjibhai Bhanderi and the spouse of the appellant had submitted forms on the same day which had Serial Nos 351, 352 and 353. The defence of the Bank that the deceased had withdrawn the form and that it was eventually submitted on 9 August 2008, when a fresh Serial No 358 was allotted has been rejected by the District Forum and by the SCDRC. The NCDRC has observed that the Bank has not explained the details of the application form mentioned at Serial No 352. There is a specific finding of fact that it was the failure of the Bank to deduct the premium and to pay it over the insurer which resulted in the insurer repudiating the claim on the ground that no insurance cover existed. No insurance cover came into existence. There are concurrent findings of fact by the three fora. We have no reason to take a different view, particularly, when the Bank has not challenged the judgment of the NCDRC. The Banks explanations are an eye-wash and a thinly disguised attempt to defeat a legitimate grievance. There was an evident deficiency of service on its part. Evidently, there was a deficiency of service on the part of the Bank in failing to forward the application form to the insurer and in deducting the insurance premium on time. Had the Bank not been deficient in the performance of its services, the deceased would have been entitled to an insurance cover in the same terms as was provided by the insurer to all other account holders desirous of obtaining insurance.
### Response:
1
### Explanation:
The Bank has complied with the order of the NCDRC by handing over a cheque in an amount of Rs 2 lakhs to the appellant. The appellant has declined to encash the cheque of Rs 2 lakhs paid towards compensation on the ground that she is entitled to the full compensation of Rs 5 lakhs as awarded by the District Forum8. Insofar as the deficiency of service on the part of the Bank is concerned, there are concurrent findings. The NCDRC confirmed that there was a deficiency of service on the part of the Bank. Before it, the Bank admitted that no receipt was given by it to anyone depositing the application form. As a matter of fact, it has also emerged from the record that three persons Rasik Gordhanbhai Dobariya, Harjibhai Bhanderi and the spouse of the appellant had submitted forms on the same day which had Serial Nos 351, 352 and 353. The defence of the Bank that the deceased had withdrawn the form and that it was eventually submitted on 9 August 2008, when a fresh Serial No 358 was allotted has been rejected by the District Forum and by the SCDRC. The NCDRC has observed that the Bank has not explained the details of the application form mentioned at Serial No 352. There is a specific finding of fact that it was the failure of the Bank to deduct the premium and to pay it over the insurer which resulted in the insurer repudiating the claim on the ground that no insurance cover existed. No insurance cover came into existence. There are concurrent findings of fact by the three fora. We have no reason to take a different view, particularly, when the Bank has not challenged the judgment of the NCDRC. The Banks explanations are an eye-wash and a thinly disguised attempt to defeat a legitimate grievance. There was an evident deficiency of service on its part. Evidently, there was a deficiency of service on the part of the Bank in failing to forward the application form to the insurer and in deducting the insurance premium on time. Had the Bank not been deficient in the performance of its services, the deceased would have been entitled to an insurance cover in the same terms as was provided by the insurer to all other account holders desirous of obtaining insurance.
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Bharat Sanchar Nigam Ltd. Vs. Dhanurdhar Champatiray | paragraph 19 at page 158 this Court observed as follows: "So far as cases falling under Section 11(6) are concerned such as the one before us no time limit has been prescribed under the Act, whereas a period of 30 days has been prescribed under Section 11(4) and Section 11(5) of the Act. In our view, therefore, so far as Section 11(6) is concerned, if one party demands the opposite party to appoint an Arbitrator and the opposite party do not make an appointment within 30 days of the demand, the right to appointment does not get automatically forfeited after expiry of 30 days. If the opposite party makes an appointment even after 30 days of the demand, but before the first party has moved the Court under Section 11, which would be sufficient. In other words, in cases arising under Section 11(6), if the opposite party has not made an appointment within 30 days of demand, the right to make appointment is not forfeited but continues, but an appointment has to be made before the former files application under Section 11 seeking appointment of an Arbitrator. Only then the right of the opposite party ceases." 9. Similarly in the case of Ace Pipeline Contracts Private Limited v. Bharat Petroleum Corporation Limited, (2007) 5 SCC 304 , this Court went to observe that: "But in sub-section (6), where, the procedure has already been agreed upon by the parties, as in the present case, and in that event, if a party fails to act as required under that procedure or the parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure or a person, including an institution, fails to perform any function entrusted to him or it under that procedure, a party may in that event, request the Chief Justice or a person or an institution designated by him to make necessary measures, unless the agreement on the appointment procedure provides other means for appointment of arbitrator. Therefore, so far as the period of thirty days is concerned, it is not mentioned in Sub-section (6). The period of limitation is only provided under sub-sections (4) & (5) of Section 11. As such, as per the statute, the period of limitation of thirty days cannot be invoked under sub-section (6) of Section 11 of the Act." 10. On a perusal of the above quoted observations of this Court made in Ace Pipeline Contracts Private Limited (supra), the reasons advanced in the orders passed by the High Court must be found to be a correct interpretation of the aforesaid provision and so far as the period of 30 days with regard to Section 11(6) is concerned, there is no doubt at all that thirty days limitation cannot be invoked as mandatory period under Section 11 [6] of the Act. But a somewhat different view was expressed in a latter decision of this Court in the case of Union of India vs. Bharat Battery Manufacturing Co. Pvt.Ltd. [2007 (7) SCC 684 ]. In view of the difference of opinion of the two coordinate benches of this Court, the matter was referred to a three-Judge Bench in the case of Northern Railway Administration, Ministry of Railway vs. Patel Engineering Company Ltd. [2008 (10) SCC 240 ] in which the decision in Ace Pipeline Contracts Pvt. Ltd. (supra) was also referred to. Arijit Pasayat, J. (as His Lordship then was), heading the three-Judge Bench of this Court, after considering the scope and object of the Act particularly Section 11 of the Act, concluded the following : "A bare reading of the scheme of Section 11 shows that the emphasis is on the terms of the agreement being adhered to and/or given effect as closely as possible. In other words, the Court may ask to do what has not been done. The court must first ensure that the remedies provided for are exhausted. It is true as contended by Mr. Desai, that it is not mandatory for the Chief Justice or any person or institution designated by him to appoint the named arbitrator or arbitrators. But at the same time, due regard has to be given to the qualifications required by the agreement and other considerations. Xxxxxxxxxxxxxx In all these cases at hand the High Court does not appear to have focused on the requirement to have due regard to the qualifications required by the agreement or other considerations necessary to secure the appointment of an independent and impartial arbitrator. It needs no reiteration that appointment of the arbitrator or arbitrators named in the arbitration agreement is not a must, but while making the appointment the twin requirements of Sub-section (8) of Section 11 have to be kept in view, considered and taken into account. If it is not done, the appointment becomes vulnerable. In the circumstances, we set aside the appointment made in each case, remit the matters to the High Court to make fresh appointments keeping in view the parameters indicated above." 11. In the aforesaid decision in the case of Northern Railway Administration (Supra), Arijit Pasayat, J. (as His Lordship then was), found that the High Court in the said case did not appear to have focused on the requirement to have due regard to the qualifications required by the agreement or other conditions necessary to secure the appointment of an independent and impartial arbitrator. In the aforesaid decision, this Court also concluded that since the requirement of sub-section (8) of Section 11 was not at all dealt with by the High Court in its order, the appointment of an arbitrator without dealing with Sub-Section 8 of Section 11 of the Act became vulnerable and accordingly, such appointment was set aside. Similar is the position in this case. In this case also, before appointing an arbitrator under Section 11(6) of the Act, the High Court had failed to take into consideration the effect of Section 11(8) of the Act as was done in Northern Railway Administration (supra). | 1[ds]11. In the aforesaid decision in the case of Northern Railway Administration (Supra), Arijit Pasayat, J. (as His Lordship then was), found that the High Court in the said case did not appear to have focused on the requirement to have due regard to the qualifications required by the agreement or other conditions necessary to secure the appointment of an independent and impartial arbitrator. In the aforesaid decision, this Court also concluded that since the requirement of sub-section (8) of Section 11 was not at all dealt with by the High Court in its order, the appointment of an arbitrator without dealing with Sub-Section 8 of Section 11 of the Act became vulnerable and accordingly, such appointment was set aside. Similar is the position in this case. In this case also, before appointing an arbitrator under Section 11(6) of the Act, the High Court had failed to take into consideration the effect of Section 11(8) of the Act as was done in Northern Railway Administration (supra) | 1 | 2,513 | 197 | ### 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:
paragraph 19 at page 158 this Court observed as follows: "So far as cases falling under Section 11(6) are concerned such as the one before us no time limit has been prescribed under the Act, whereas a period of 30 days has been prescribed under Section 11(4) and Section 11(5) of the Act. In our view, therefore, so far as Section 11(6) is concerned, if one party demands the opposite party to appoint an Arbitrator and the opposite party do not make an appointment within 30 days of the demand, the right to appointment does not get automatically forfeited after expiry of 30 days. If the opposite party makes an appointment even after 30 days of the demand, but before the first party has moved the Court under Section 11, which would be sufficient. In other words, in cases arising under Section 11(6), if the opposite party has not made an appointment within 30 days of demand, the right to make appointment is not forfeited but continues, but an appointment has to be made before the former files application under Section 11 seeking appointment of an Arbitrator. Only then the right of the opposite party ceases." 9. Similarly in the case of Ace Pipeline Contracts Private Limited v. Bharat Petroleum Corporation Limited, (2007) 5 SCC 304 , this Court went to observe that: "But in sub-section (6), where, the procedure has already been agreed upon by the parties, as in the present case, and in that event, if a party fails to act as required under that procedure or the parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure or a person, including an institution, fails to perform any function entrusted to him or it under that procedure, a party may in that event, request the Chief Justice or a person or an institution designated by him to make necessary measures, unless the agreement on the appointment procedure provides other means for appointment of arbitrator. Therefore, so far as the period of thirty days is concerned, it is not mentioned in Sub-section (6). The period of limitation is only provided under sub-sections (4) & (5) of Section 11. As such, as per the statute, the period of limitation of thirty days cannot be invoked under sub-section (6) of Section 11 of the Act." 10. On a perusal of the above quoted observations of this Court made in Ace Pipeline Contracts Private Limited (supra), the reasons advanced in the orders passed by the High Court must be found to be a correct interpretation of the aforesaid provision and so far as the period of 30 days with regard to Section 11(6) is concerned, there is no doubt at all that thirty days limitation cannot be invoked as mandatory period under Section 11 [6] of the Act. But a somewhat different view was expressed in a latter decision of this Court in the case of Union of India vs. Bharat Battery Manufacturing Co. Pvt.Ltd. [2007 (7) SCC 684 ]. In view of the difference of opinion of the two coordinate benches of this Court, the matter was referred to a three-Judge Bench in the case of Northern Railway Administration, Ministry of Railway vs. Patel Engineering Company Ltd. [2008 (10) SCC 240 ] in which the decision in Ace Pipeline Contracts Pvt. Ltd. (supra) was also referred to. Arijit Pasayat, J. (as His Lordship then was), heading the three-Judge Bench of this Court, after considering the scope and object of the Act particularly Section 11 of the Act, concluded the following : "A bare reading of the scheme of Section 11 shows that the emphasis is on the terms of the agreement being adhered to and/or given effect as closely as possible. In other words, the Court may ask to do what has not been done. The court must first ensure that the remedies provided for are exhausted. It is true as contended by Mr. Desai, that it is not mandatory for the Chief Justice or any person or institution designated by him to appoint the named arbitrator or arbitrators. But at the same time, due regard has to be given to the qualifications required by the agreement and other considerations. Xxxxxxxxxxxxxx In all these cases at hand the High Court does not appear to have focused on the requirement to have due regard to the qualifications required by the agreement or other considerations necessary to secure the appointment of an independent and impartial arbitrator. It needs no reiteration that appointment of the arbitrator or arbitrators named in the arbitration agreement is not a must, but while making the appointment the twin requirements of Sub-section (8) of Section 11 have to be kept in view, considered and taken into account. If it is not done, the appointment becomes vulnerable. In the circumstances, we set aside the appointment made in each case, remit the matters to the High Court to make fresh appointments keeping in view the parameters indicated above." 11. In the aforesaid decision in the case of Northern Railway Administration (Supra), Arijit Pasayat, J. (as His Lordship then was), found that the High Court in the said case did not appear to have focused on the requirement to have due regard to the qualifications required by the agreement or other conditions necessary to secure the appointment of an independent and impartial arbitrator. In the aforesaid decision, this Court also concluded that since the requirement of sub-section (8) of Section 11 was not at all dealt with by the High Court in its order, the appointment of an arbitrator without dealing with Sub-Section 8 of Section 11 of the Act became vulnerable and accordingly, such appointment was set aside. Similar is the position in this case. In this case also, before appointing an arbitrator under Section 11(6) of the Act, the High Court had failed to take into consideration the effect of Section 11(8) of the Act as was done in Northern Railway Administration (supra).
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11. In the aforesaid decision in the case of Northern Railway Administration (Supra), Arijit Pasayat, J. (as His Lordship then was), found that the High Court in the said case did not appear to have focused on the requirement to have due regard to the qualifications required by the agreement or other conditions necessary to secure the appointment of an independent and impartial arbitrator. In the aforesaid decision, this Court also concluded that since the requirement of sub-section (8) of Section 11 was not at all dealt with by the High Court in its order, the appointment of an arbitrator without dealing with Sub-Section 8 of Section 11 of the Act became vulnerable and accordingly, such appointment was set aside. Similar is the position in this case. In this case also, before appointing an arbitrator under Section 11(6) of the Act, the High Court had failed to take into consideration the effect of Section 11(8) of the Act as was done in Northern Railway Administration (supra)
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M/S SHANTI CONDUCTORS(P) LTD. Vs. ASSAM STATE ELECTRICITY BOARD & ORS | will very easily get away from payment of interest only after making payment of Principal amount. This interpretation shall defeat very purposes of 1993 Act. It is well settled that provisions of Act has to be interpreted in the manner so as to advance the object of the Act. We thus fully approve the view taken by this Court in Purbanchal Cables (Supra) that suit by supplier for recovery of only interest is maintainable. Issue No.6 80. The submission of the counsel to the board is that since against the judgment of Gauhati High Court dated 15.04.2001, S.L.P. No.12217 of 2001 filed by M/s Trusses & Towers was withdrawn without obtaining the liberty, Civil Appeal No. 8445 of 2016 is not maintainable challenging the Review Order and judgment dated 19.03.2003.In the Order passed by this Court on 06.08.2001, this Court had noticed the submission of the appellant that appellant shall move the High Court in review stating that it has committed error in recording thatall the bills were paid earlier to the commencement of this act. In the Review Petition, the review has been partly allowed by allowing interest @ 9% against which the appeal has been filed. A perusal of the Review judgment indicates that High Court has not returned any finding that all the bills were not paid earlier to the commencement of the Act. 81. A perusal of Division Bench judgment of High Court indicates that High Court proceed on the presumption that even if 1993 Act is not applicable the entitlement of the plaintiff could be considered in equity. When the liberty to file review was obtained on the ground as noticed in the Order the review judgment can be questioned on the ground on which review was permitted. 82. The Division Bench judgment does not indicate that it proceeds on the ground as contended by the appellant and noticed by this Court on 06.08.2001. The interest of 9% was allowed on the premise that 1993 Act is not applicable and said interest is allowed on equity relying on an earlier judgment on this court in Assam Small Scale Industry Development Corporation and others versus G.D. Pharmaceuticals and others, 2005(13) SCC19.We thus are of the view that present appeal challenging the review judgmentcannot be entertained. The ground on which the appellant can challenge the review judgment can be the ground on which liberty was obtained to file review. We thus hold that Civil Appeal No. 8445 of 2016 is not maintainable. Issue No.7 Whether the High court while considering the Review Petition No.75 of 2001 (M/s Trusses & Towers Pvt. Ltd.) even after expressing that Act 1993 is not applicable could have allowed 9% interest to the plaintiff? 83. The High Court in its judgment dated 19.03.2013 allowed interest @ 9% per annum for the period of delayed payment. Even if Act 1993 is not applicable, the Court can very well exercise its jurisdiction to award interest. InAssam Small Scale Industry Development Corporation and others versus G.D. pharmaceuticals and others(Supra),this Court in paragraph 40 while considering the claim of the respondent in a suit filed for recovery of interest under 1993 Act has allowed 9% interest with respect to the transaction made prior to coming into force of the 1993 Act. Paragraph 40 is to the following effect: - 40.We, therefore, are of the opinion that in relation to the transactions made prior to coming into force of the said Act, simple interest at the rate of 9% per annum, which was the bank rate at the relevant time, shall be payable both prior to date of filing of the suit and pendente lite and as future interest in terms of Section 34 of the Code of Civil Procedure. Interest, however, will be payable in terms of the provisions of the 1993 Act(compound interest at the rate of 23.5 % per annum) in relation to the transactions made after coming into force of the Act, both in respect of interest payable up to the date of institution of the suit and pendente lite and till realization. The judgment and decree to that extent requires to be modified. It is directed accordingly. 84. High Court did not commit any error in awarding 9% interest to plaintiff respondent. We thus did not find any error in the judgment dated 19.03.2013 allowing partly the review application filed by the plaintiff. Civil Appeal No. 8450 of 2016 85. Now, we come to Civil Appeal No. 8450 of 2016.The appellant has filed Money Suit No. 32 of 1996 for recovery of a sum of Rs. 10,34,065.23 p. and Rs. 23,738.49 p. being the outstanding against the bills for supply made and amount of security deposited and amount of Rs.10,10,326.74 p. being the amount of delayed interest.The suit was decreed by the learned Civil Judge (Senior Division) vide its judgment and order dated 30.09.2002 for recovery of Rs. 5,46,233.14 p.as on 18.12.93 from the date of enforcement of the Act, 1993 and future interest on the decretal amount @ 6% simple interest per annum with effect from 19.12.1993.Appeal was filed by the respondent in the High Court beingRFA No. 78 of2003, whichhasbeen allowed on 12.02.2015 setting aside the decree for recovery of the amount and interest but maintaining the claim of refund of security deposit to the tune of Rs. 23,738.49 with 9% interest.The High Court following the judgment of this Court inPurbanchal Cables and Conductors Pvt. Ltd. (supra) held that with regard to transaction, which had taken place prior to 23.09.1992, the 1993 Act is not applicable.The appellants have appealed against the judgment of High Court dated 20.02.2015. The pleading on the record does not indicate that any supply was made by the appellant subsequent to enforcement of the 1993 Act. We have already held that the mere fact that supply orders were issued prior to enforcement of the Act does not deny the applicability of the 1993 Act, in event, supply has been made after the enforcement of the Act. | 0[ds]51. The judgment of this Court in Purbanchal Cables and Conductors Pvt. Ltdrelying onAssam Small Scale Industries and Shakti Tubeshad laid down that Act, 1993 cannot be made applicable with regard to sale agreements which were entered into prior to the enforcement of the Act and Act can be invoked only for the sale agreements which were entered after the enforcement of the Act. Although attempt was made in Purbanachal Cables to get judgment in Assam Small Scale Industries and Shakti Tubesreconsidered but co- ordinate Bench inPurbanchal Cableshas refused to permit any such reconsideration. The matter now having been referred to this three-Judge Bench we have to consider and answer as to whether the above interpretation of Act, 1993 as given is in consonance with the statutory scheme52. We have noticed above that theincidence of applicability of the liability under the Act is supply of goods or rendering of service. In event the supply of goods and rendering of services is subsequent to Act, can liability to pay interest on delayed payment be denied on the ground that agreement in pursuance of which supplies were made were entered prior to enforcement of the Act? Entering into an agreement being not expressly or impliedly referred to in the statutory scheme as an incident for fastening of the liability, making the date of agreement as date for imposition of liability does not conform to the statutoryscheme. This can be illustrated by taking an example. There are two small scale industries who received orders for supply of materials. A received such orders prior to the enforcement of the Act and B received the order after the enforcement of the Act. Both supplied the goods subsequent to enforcement of the Act and became entitled to receive payment after the supply, on or before the day agreed upon between the supplier and buyer or before the appointed day. Payments were not made both to A and B as required by Section 3. Can the buyer who has received supplies from supplier A escape from his statutory liability to make payment of interest under Section 3 read with Section 4 ? The answer has to be No. Two suppliers who supply goods after the enforcement of the Act, become entitled to receive payment after the enforcement of the Act one supplier cannot be denied the benefit of the statutory protection on the pretext that agreement in his case was entered prior to enforcement of the Act. When the date of agreement is not referred as material or incidence for fastening the liability, by no judicial interpretation the said date can be treated as a date for fastening of the liability. The Act, 1993 being beneficial legislation enacted to protect small scale industries and statutorily ensure by mandatory provision for payment of interest on the outstanding money, accepting the interpretation as put by learned counsel for the Board that the day of agreement has to be subsequent to the enforcement of the Act, the entire beneficial protection of the Act shall be defeated. The existence of statutory liability depends on the statutory factors as enumerated in Section 3 and Section4 of the Act, 1993. Factor for liability to make payment under Section 3 being the supplier supplies any goods or renders services to the buyer, the liability of buyer cannot be denied on the ground that agreement entered between the parties for supply was prior to Act, 1993. To hold that liability of buyer for payment shall arise only when agreement for supply was entered subsequent to enforcement of the Act, it shall be adding words to Section 3 which is not permissible under principles of statutory construction. We, thus, are of the view that judgments in Purbanchal Cables and Conductors (supra),Assam Small Scale Industries and Shakti Tubes which held that Act, 1993 shall be applicable only when the agreement to sale/contract was entered prior/subsequent to the enforcement of the Act, does not lay down the correct law. We accept the submission of learned counsel for the appellants that even if agreement of sale is entered prior to enforcement of the Act, liability to make payment under Section 3 and liability to make payment of interest under Section 4 shall arise if supplies are made subsequent to the enforcement of the Act53. In all the judgments of this Court referred above, it has been held that Act, 1993 is not retrospective. It is not even contended before us by any of the parties that the Act, 1993 is retrospective in operation. Judgments of this Court as noticed above rightly hold that Act, 1993 is not retrospective54. The opinion of Justice Gowda dated 31.08.2016 although holds that Act is not retrospective but he holds the Act retroactive57. Retroactivity in the context of the statute consists application of new rule of law to an Act or transaction which has been completed before the Rule was promulgated58. In the present case the liability of buyer to make payment and day from which payment and interest become payable under Section 3 and 4 does not relate on any event which took place prior to Act, 1993, it is not even necessary for us to say that Act, 1993 is retroactive in operation. The Act, 1993 is clearly prospective in operation and it is not necessary to term it as retroactive in operation. We, thus, do not subscribe to the opinion dated 31.08.2016 of one of the Honble Judges holding that the Act, 1993 as retroactiveWhether money suit no.21 of 1997 filed by appellant is barred by time is one of the issues which has been raised before us59. From the pleadings on the record it transpires that two supply orders dated 31.03.1992 and 13.05.1992 was issued to the appellant for supply of conductors. In the Plaint, the appellant had given the details of date of supply orders and date when supply was made on different stores. The supplies made by the appellant were both before enforcement of the Act i.e. 23.09.1992 and after the enforcement of the Act60. In view of the discussions as made above only the supplies received after 23.09.1992 are relevant for purposes of 1993 Act. As per pleadings on the record entire supplies by the appellant was completed on 04.10.1993. Details of the payment has also been given in the plaint which indicate that last payment dated 05.03.1994 was received.Paragraph 24 of the plaint gives the details of cause of action for the suit which states that cause of action for the suit arose on 31.03.1992 and thereafter on different date last date being mentioned in paragraph 24 was 05.10.1993 and each date subsequent thereafter.62. The Trial Court held that by virtue of Section 10 of Act, 1993 plea of limitation is taken away and the suit is not barred by the limitation. The Division Bench of the High Court in RFA No. 66 of 2000 filed by the defendant had made a reference to the full bench. Full Bench in its order dated 05.03.2002 has not considered or decided the question of limitation63. Against the judgment dated 05.03.2002 of Full Bench of High Court answering the reference, the Assam State Electricity Board had filed appeal in this court being Civil Appeal No. 2351 of 2003. This Court decided Civil Appeal No.2351 of 2003 along with Civil Appeal No. 2348 of 2003 on 10.07.2002 which judgment isPurbanchal Cables and Conductors (P) Ltd. (Supra). This Court in paragraph 31 has noticed the submission of learned Counsel for the State Electricity Board that suits filed by both the suppliers were barred by time but this Court did not express any opinion.64. After the judgment of this Court dated 10.07.2012 when the matters went back to the High Court, Division Bench decided the RFA 66 of 2000 by impugned judgment dated 20.11.2012. The Division Bench in the impugned judgment has noticed the issues in paragraph 5 of the judgment and submissions on the limitations.65. It is thus clear that the Division Bench although noticed the submissions of both the parties on the question as to whether the suit was barred by limitation or not but Division Bench allowed the appeal on the ground that supply orders having been issued prior to enforcement of the Act. Act 1993 is not applicable. The Division Bench did not return any finding as to whether the suit was barred by the limitation or not. The submission that suit has barred by limitation has been pressed before us68. Plaintiff themselves in the plaint as noted above has pleaded that limitation will not apply by virtue of Section 10 which submission was accepted by the Trial Court. The provision of Section 10 of 1993 Act gives overriding effect to the provisions of Act notwithstanding anything inconsistent herewith contained in any other law for the time being in force. The overriding effect was given to the provisions of the Act which were contained in the Act. Section 10 provided that overriding effect is given to the provisions of the Act over any inconsistent law for the time being in force. It simply meant that if there is anything inconsistent in any other law to the provisions of the Act, the provisions of the Act shall prevail and override any inconsistent law. For example, when Section 4 requires payment of interest at particular rate on delayed payment the said rate shall have overriding effect to rate of interest provided in any other law69. Further, as per Section 7 no appeal can be filed against the decree or other order passed regarding recovery of amount due without depositing 75 % of the amount. Thus in a suit if a decree is passed on amount due of interest appeal has to be entertained after depositing 75% or as per any other order passed by the Court. Normal right of appeal shall be overridden by virtue of Section 7 of 1993 Act. The Trial Court fell in error in reading overriding effect given in Section 10 to the Limitation Act also. There is no provision in 1993 Act pertaining to limitation, the provision of Limitation Act pertaining to filing suit shall continue to operate there being nothing contrary or overriding under 1993 Act. Section 10 will operate only with regard to expressed provisions contained in 1993 Act which shall be given overriding effect but reading Section 10 to the effect that it shall override Limitation Act is not correct interpretation of Section 10 and Trial Court fell in errorin relying on Section 10in holding that Limitation Act will not apply70. We thus are of the view that Limitation Act, 1963 is fully applicable with regard to money suit filed by the appellant hence, the question of limitation has to be answered as per Limitation Act 1963.74. Article 113 as noted above provides fortime from which period begins as when the right to sue accrues. 1993 Act Section 4 creates statutory liability to pay interest from the day as mentioned in Section 4 the liability to pay is fastened on buyer. The amount become due as soon as liability to pay arises. Section 6 also uses the wordamount due from buyer. The amount due is amount which is liable to be paid by buyer under Section 4. Thus the fact that last payment was made on 05.03.1994 cannot be treated as period for beginning of the limitation and on that ground it cannot be held that suit was within time75. Shri Sinha had made an alternative submission that plaintiff was entitled for the benefit under section 14 of limitation Act. Since a W.P.No. giving rise to Civil Rule No.1531 of 1993 on behalf of five main members of the Associations i.e. Assam Conductors Manufacture Association was filed in the High Court which on 06.09.1994 directed the petitioner to move to Civil Court for realization of the dues of its member, hence the period during which the writ was pending has to be given benefit. According to pleading in paragraph 24, the Writ Petition was filed by Assam Conductors Manufacture Association. M/s Shanti Conductor(P) Ltd. and another, is a different entity than the Association76. We thus are of the view that benefit of the Section 14 cannot be claimed by the plaintiff in the facts of the present case.We, thus in view of the foregoing discussioncome to the conclusion that suit filed by the plaintiff being Money Suit No. 21 of 1997 was barred by time77. While deciding Issue No.3 we having held that Money Suit filed by the appellant was barred by time, it is not necessary to express any opinion on the above issue78. The question as to whether suit filed only for interest is maintainable has been considered in detail by this Court.79. Section 6 of the 1993 Act provides thatthe amount due from the buyer, together with amount of interest calculated in accordance with provision of Section 4 and 5 shall be recoverable ……. Section 6 uses the expressiontogether with the amount of interest with the amount due from the buyer. The interpretation put by learned counsel for the Board is that proceeding for recovery of interest can be undertaken only when any amount is due. He submits that amount due used in Section 6 is Principal amount. In event we accept the interpretation put by counsel for the Board, then buyer will very easily get away from payment of interest only after making payment of Principal amount. This interpretation shall defeat very purposes of 1993 Act. It is well settled that provisions of Act has to be interpreted in the manner so as to advance the object of the Act. We thus fully approve the view taken by this Court in Purbanchal Cables (Supra) that suit by supplier for recovery of only interest is maintainable80. The submission of the counsel to the board is that since against the judgment of Gauhati High Court dated 15.04.2001, S.L.P. No.12217 of 2001 filed by M/s Trusses & Towers was withdrawn without obtaining the liberty, Civil Appeal No. 8445 of 2016 is not maintainable challenging the Review Order and judgment dated 19.03.2003.In the Order passed by this Court on 06.08.2001, this Court had noticed the submission of the appellant that appellant shall move the High Court in review stating that it has committed error in recording thatall the bills were paid earlier to the commencement of this act. In the Review Petition, the review has been partly allowed by allowing interest @ 9% against which the appeal has been filed. A perusal of the Review judgment indicates that High Court has not returned any finding that all the bills were not paid earlier to the commencement of the Act81. A perusal of Division Bench judgment of High Court indicates that High Court proceed on the presumption that even if 1993 Act is not applicable the entitlement of the plaintiff could be considered in equity. When the liberty to file review was obtained on the ground as noticed in the Order the review judgment can be questioned on the ground on which review was permitted82. The Division Bench judgment does not indicate that it proceeds on the ground as contended by the appellant and noticed by this Court on 06.08.2001. The interest of 9% was allowed on the premise that 1993 Act is not applicable and said interest is allowed on equity relying on an earlier judgment on this court in Assam Small Scale Industry Development Corporation and others versus G.D. Pharmaceuticals and others, 2005(13) SCC19.We thus are of the view that present appeal challenging the review judgmentcannot be entertained. The ground on which the appellant can challenge the review judgment can be the ground on which liberty was obtained to file review. We thus hold that Civil Appeal No. 8445 of 2016 is not maintainableWhether the High court while considering the Review Petition No.75 of 2001 (M/s Trusses & Towers Pvt. Ltd.) even after expressing that Act 1993 is not applicable could have allowed 9% interest to the plaintiff?83. The High Court in its judgment dated 19.03.2013 allowed interest @ 9% per annum for the period of delayed payment. Even if Act 1993 is not applicable, the Court can very well exercise its jurisdiction to award interest. InAssam Small Scale Industry Development Corporation and others versus G.D. pharmaceuticals and others(Supra),this Court in paragraph 40 while considering the claim of the respondent in a suit filed for recovery of interest under 1993 Act has allowed 9% interest with respect to the transaction made prior to coming into force of the 1993 Act.84. High Court did not commit any error in awarding 9% interest to plaintiff respondent. We thus did not find any error in the judgment dated 19.03.2013 allowing partly the review application filed by the plaintiffCivil Appeal No. 8450 of 201685. Now, we come toCivil Appeal No. 8450 ofe appellant has filed Money Suit No. 32 of 1996 for recovery of a sum of Rs. 10,34,065.23 p. and Rs. 23,738.49 p. being the outstanding against the bills for supply made and amount of security deposited and amount of Rs.10,10,326.74 p. being the amount of delayed interest.The suit was decreed by the learned Civil Judge (Senior Division) vide its judgment and order dated 30.09.2002 for recovery of Rs. 5,46,233.14 p.as on 18.12.93 from the date of enforcement of the Act, 1993 and future interest on the decretal amount @ 6% simple interest per annum with effect from 19.12.1993.Appeal was filed by the respondent in the High Court beingRFA No. 78 of2003, whichhasbeen allowed on 12.02.2015 setting aside the decree for recovery of the amount and interest but maintaining the claim of refund of security deposit to the tune of Rs. 23,738.49 with 9% interest.The High Court following the judgment of this Court inPurbanchal Cables and Conductors Pvt. Ltd. (supra) held that with regard to transaction, which had taken place prior to 23.09.1992, the 1993 Act is not applicable.The appellants have appealed against the judgment of High Court dated 20.02.2015. The pleading on the record does not indicate that any supply was made by the appellant subsequent to enforcement of the 1993 Act. We have already held that the mere fact that supply orders were issued prior to enforcement of the Act does not deny the applicability of the 1993 Act, in event, supply has been made after the enforcement of the Act. | 0 | 15,098 | 3,286 | ### Instruction:
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will very easily get away from payment of interest only after making payment of Principal amount. This interpretation shall defeat very purposes of 1993 Act. It is well settled that provisions of Act has to be interpreted in the manner so as to advance the object of the Act. We thus fully approve the view taken by this Court in Purbanchal Cables (Supra) that suit by supplier for recovery of only interest is maintainable. Issue No.6 80. The submission of the counsel to the board is that since against the judgment of Gauhati High Court dated 15.04.2001, S.L.P. No.12217 of 2001 filed by M/s Trusses & Towers was withdrawn without obtaining the liberty, Civil Appeal No. 8445 of 2016 is not maintainable challenging the Review Order and judgment dated 19.03.2003.In the Order passed by this Court on 06.08.2001, this Court had noticed the submission of the appellant that appellant shall move the High Court in review stating that it has committed error in recording thatall the bills were paid earlier to the commencement of this act. In the Review Petition, the review has been partly allowed by allowing interest @ 9% against which the appeal has been filed. A perusal of the Review judgment indicates that High Court has not returned any finding that all the bills were not paid earlier to the commencement of the Act. 81. A perusal of Division Bench judgment of High Court indicates that High Court proceed on the presumption that even if 1993 Act is not applicable the entitlement of the plaintiff could be considered in equity. When the liberty to file review was obtained on the ground as noticed in the Order the review judgment can be questioned on the ground on which review was permitted. 82. The Division Bench judgment does not indicate that it proceeds on the ground as contended by the appellant and noticed by this Court on 06.08.2001. The interest of 9% was allowed on the premise that 1993 Act is not applicable and said interest is allowed on equity relying on an earlier judgment on this court in Assam Small Scale Industry Development Corporation and others versus G.D. Pharmaceuticals and others, 2005(13) SCC19.We thus are of the view that present appeal challenging the review judgmentcannot be entertained. The ground on which the appellant can challenge the review judgment can be the ground on which liberty was obtained to file review. We thus hold that Civil Appeal No. 8445 of 2016 is not maintainable. Issue No.7 Whether the High court while considering the Review Petition No.75 of 2001 (M/s Trusses & Towers Pvt. Ltd.) even after expressing that Act 1993 is not applicable could have allowed 9% interest to the plaintiff? 83. The High Court in its judgment dated 19.03.2013 allowed interest @ 9% per annum for the period of delayed payment. Even if Act 1993 is not applicable, the Court can very well exercise its jurisdiction to award interest. InAssam Small Scale Industry Development Corporation and others versus G.D. pharmaceuticals and others(Supra),this Court in paragraph 40 while considering the claim of the respondent in a suit filed for recovery of interest under 1993 Act has allowed 9% interest with respect to the transaction made prior to coming into force of the 1993 Act. Paragraph 40 is to the following effect: - 40.We, therefore, are of the opinion that in relation to the transactions made prior to coming into force of the said Act, simple interest at the rate of 9% per annum, which was the bank rate at the relevant time, shall be payable both prior to date of filing of the suit and pendente lite and as future interest in terms of Section 34 of the Code of Civil Procedure. Interest, however, will be payable in terms of the provisions of the 1993 Act(compound interest at the rate of 23.5 % per annum) in relation to the transactions made after coming into force of the Act, both in respect of interest payable up to the date of institution of the suit and pendente lite and till realization. The judgment and decree to that extent requires to be modified. It is directed accordingly. 84. High Court did not commit any error in awarding 9% interest to plaintiff respondent. We thus did not find any error in the judgment dated 19.03.2013 allowing partly the review application filed by the plaintiff. Civil Appeal No. 8450 of 2016 85. Now, we come to Civil Appeal No. 8450 of 2016.The appellant has filed Money Suit No. 32 of 1996 for recovery of a sum of Rs. 10,34,065.23 p. and Rs. 23,738.49 p. being the outstanding against the bills for supply made and amount of security deposited and amount of Rs.10,10,326.74 p. being the amount of delayed interest.The suit was decreed by the learned Civil Judge (Senior Division) vide its judgment and order dated 30.09.2002 for recovery of Rs. 5,46,233.14 p.as on 18.12.93 from the date of enforcement of the Act, 1993 and future interest on the decretal amount @ 6% simple interest per annum with effect from 19.12.1993.Appeal was filed by the respondent in the High Court beingRFA No. 78 of2003, whichhasbeen allowed on 12.02.2015 setting aside the decree for recovery of the amount and interest but maintaining the claim of refund of security deposit to the tune of Rs. 23,738.49 with 9% interest.The High Court following the judgment of this Court inPurbanchal Cables and Conductors Pvt. Ltd. (supra) held that with regard to transaction, which had taken place prior to 23.09.1992, the 1993 Act is not applicable.The appellants have appealed against the judgment of High Court dated 20.02.2015. The pleading on the record does not indicate that any supply was made by the appellant subsequent to enforcement of the 1993 Act. We have already held that the mere fact that supply orders were issued prior to enforcement of the Act does not deny the applicability of the 1993 Act, in event, supply has been made after the enforcement of the Act.
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by the plaintiff being Money Suit No. 21 of 1997 was barred by time77. While deciding Issue No.3 we having held that Money Suit filed by the appellant was barred by time, it is not necessary to express any opinion on the above issue78. The question as to whether suit filed only for interest is maintainable has been considered in detail by this Court.79. Section 6 of the 1993 Act provides thatthe amount due from the buyer, together with amount of interest calculated in accordance with provision of Section 4 and 5 shall be recoverable ……. Section 6 uses the expressiontogether with the amount of interest with the amount due from the buyer. The interpretation put by learned counsel for the Board is that proceeding for recovery of interest can be undertaken only when any amount is due. He submits that amount due used in Section 6 is Principal amount. In event we accept the interpretation put by counsel for the Board, then buyer will very easily get away from payment of interest only after making payment of Principal amount. This interpretation shall defeat very purposes of 1993 Act. It is well settled that provisions of Act has to be interpreted in the manner so as to advance the object of the Act. We thus fully approve the view taken by this Court in Purbanchal Cables (Supra) that suit by supplier for recovery of only interest is maintainable80. The submission of the counsel to the board is that since against the judgment of Gauhati High Court dated 15.04.2001, S.L.P. No.12217 of 2001 filed by M/s Trusses & Towers was withdrawn without obtaining the liberty, Civil Appeal No. 8445 of 2016 is not maintainable challenging the Review Order and judgment dated 19.03.2003.In the Order passed by this Court on 06.08.2001, this Court had noticed the submission of the appellant that appellant shall move the High Court in review stating that it has committed error in recording thatall the bills were paid earlier to the commencement of this act. In the Review Petition, the review has been partly allowed by allowing interest @ 9% against which the appeal has been filed. A perusal of the Review judgment indicates that High Court has not returned any finding that all the bills were not paid earlier to the commencement of the Act81. A perusal of Division Bench judgment of High Court indicates that High Court proceed on the presumption that even if 1993 Act is not applicable the entitlement of the plaintiff could be considered in equity. When the liberty to file review was obtained on the ground as noticed in the Order the review judgment can be questioned on the ground on which review was permitted82. The Division Bench judgment does not indicate that it proceeds on the ground as contended by the appellant and noticed by this Court on 06.08.2001. The interest of 9% was allowed on the premise that 1993 Act is not applicable and said interest is allowed on equity relying on an earlier judgment on this court in Assam Small Scale Industry Development Corporation and others versus G.D. Pharmaceuticals and others, 2005(13) SCC19.We thus are of the view that present appeal challenging the review judgmentcannot be entertained. The ground on which the appellant can challenge the review judgment can be the ground on which liberty was obtained to file review. We thus hold that Civil Appeal No. 8445 of 2016 is not maintainableWhether the High court while considering the Review Petition No.75 of 2001 (M/s Trusses & Towers Pvt. Ltd.) even after expressing that Act 1993 is not applicable could have allowed 9% interest to the plaintiff?83. The High Court in its judgment dated 19.03.2013 allowed interest @ 9% per annum for the period of delayed payment. Even if Act 1993 is not applicable, the Court can very well exercise its jurisdiction to award interest. InAssam Small Scale Industry Development Corporation and others versus G.D. pharmaceuticals and others(Supra),this Court in paragraph 40 while considering the claim of the respondent in a suit filed for recovery of interest under 1993 Act has allowed 9% interest with respect to the transaction made prior to coming into force of the 1993 Act.84. High Court did not commit any error in awarding 9% interest to plaintiff respondent. We thus did not find any error in the judgment dated 19.03.2013 allowing partly the review application filed by the plaintiffCivil Appeal No. 8450 of 201685. Now, we come toCivil Appeal No. 8450 ofe appellant has filed Money Suit No. 32 of 1996 for recovery of a sum of Rs. 10,34,065.23 p. and Rs. 23,738.49 p. being the outstanding against the bills for supply made and amount of security deposited and amount of Rs.10,10,326.74 p. being the amount of delayed interest.The suit was decreed by the learned Civil Judge (Senior Division) vide its judgment and order dated 30.09.2002 for recovery of Rs. 5,46,233.14 p.as on 18.12.93 from the date of enforcement of the Act, 1993 and future interest on the decretal amount @ 6% simple interest per annum with effect from 19.12.1993.Appeal was filed by the respondent in the High Court beingRFA No. 78 of2003, whichhasbeen allowed on 12.02.2015 setting aside the decree for recovery of the amount and interest but maintaining the claim of refund of security deposit to the tune of Rs. 23,738.49 with 9% interest.The High Court following the judgment of this Court inPurbanchal Cables and Conductors Pvt. Ltd. (supra) held that with regard to transaction, which had taken place prior to 23.09.1992, the 1993 Act is not applicable.The appellants have appealed against the judgment of High Court dated 20.02.2015. The pleading on the record does not indicate that any supply was made by the appellant subsequent to enforcement of the 1993 Act. We have already held that the mere fact that supply orders were issued prior to enforcement of the Act does not deny the applicability of the 1993 Act, in event, supply has been made after the enforcement of the Act.
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Commissioner Of Income-Tax, U.P Vs. Gappumal Kanhaiya Lal | Fazl Ali, J.1. This appeal from a judgment of the High Court of Judicature at Allahabad dated 31/8/1944 raises the same points as have been discussed in Civil Appeal No. 66 of 1949. The Income-tax Appellate Tribunal referred four questions to the High Court of Judicature at Allahabad under S. 66 (1), Income-tax Act. These questions related to the year of assessment 1939-40. The High Court answered two of the questions in the affirmative and two in the negative. The two questions relating to the appeal are those that were answered in the affirmative and are as follows:"Whether (l) the amount of house tax and (2) the amount of water tax, imposed by the Municipal Board of Allahabad under S. 128, sub-s- (1) cls (i) and (x), respectively of the United Provinces Municipalities Act, 1916, and paid by the owner as a lessor under S. 149 of that Act should be deducted as an allowance from the bona fide annual value of the properly determined under sub-s. (1) read with sub-s. (2) of S. 9 of, the Act, on the ground that such amount is an annual charge, which is not a capital charge to which the property is subject within the meaning of cl. (iv) of sub-s. (1) of S. 9 of the Act."2. Under S.128, United Provinces Muncipalities Act, 1916, the municipality can impose a tax in the whole or any part of the municipality on the annual value of buildings or land or of both, and a water tax on the annual value of buildings or land or both. Every such tax on the annual value of buildings or land or both is leviable on the actual occupier of the property upon which the said taxes are assessed, if he is the owner of the buildings or lands or holds them on a building or other lease from the Crown or from the Board, or on a building lease from any person. In any other case the tax is leviable from the lessor, if the property is let (vide S. 149). S. 177 enacts that all sums due on account of a tax imposed on the annual value of buildings or lands or both shall, subject to the prior payment of the land revenue, if any, due to His Majesty thereupon, be a first charge upon such buildings or lands.3. It is apparent, therefore, that the provisions of the United Provinces Act in respect of the levy of the taxes are substantially similar to the provisions of the Bombay Act discussed in Civil Appeal No. 66 of 1949.4. | 0[ds]2. Under S.128, United Provinces Muncipalities Act, 1916, the municipality can impose a tax in the whole or any part of the municipality on the annual value of buildings or land or of both, and a water tax on the annual value of buildings or land or both. Every such tax on the annual value of buildings or land or both is leviable on the actual occupier of the property upon which the said taxes are assessed, if he is the owner of the buildings or lands or holds them on a building or other lease from the Crown or from the Board, or on a building lease from any person. In any other case the tax is leviable from the lessor, if the property is let (vide S. 149). S. 177 enacts that all sums due on account of a tax imposed on the annual value of buildings or lands or both shall, subject to the prior payment of the land revenue, if any, due to His Majesty thereupon, be a first charge upon such buildings or lands.3. It is apparent, therefore, that the provisions of the United Provinces Act in respect of the levy of the taxes are substantially similar to the provisions of the Bombay Act discussed in Civil Appeal No. 66 of 1949. | 0 | 495 | 243 | ### 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:
Fazl Ali, J.1. This appeal from a judgment of the High Court of Judicature at Allahabad dated 31/8/1944 raises the same points as have been discussed in Civil Appeal No. 66 of 1949. The Income-tax Appellate Tribunal referred four questions to the High Court of Judicature at Allahabad under S. 66 (1), Income-tax Act. These questions related to the year of assessment 1939-40. The High Court answered two of the questions in the affirmative and two in the negative. The two questions relating to the appeal are those that were answered in the affirmative and are as follows:"Whether (l) the amount of house tax and (2) the amount of water tax, imposed by the Municipal Board of Allahabad under S. 128, sub-s- (1) cls (i) and (x), respectively of the United Provinces Municipalities Act, 1916, and paid by the owner as a lessor under S. 149 of that Act should be deducted as an allowance from the bona fide annual value of the properly determined under sub-s. (1) read with sub-s. (2) of S. 9 of, the Act, on the ground that such amount is an annual charge, which is not a capital charge to which the property is subject within the meaning of cl. (iv) of sub-s. (1) of S. 9 of the Act."2. Under S.128, United Provinces Muncipalities Act, 1916, the municipality can impose a tax in the whole or any part of the municipality on the annual value of buildings or land or of both, and a water tax on the annual value of buildings or land or both. Every such tax on the annual value of buildings or land or both is leviable on the actual occupier of the property upon which the said taxes are assessed, if he is the owner of the buildings or lands or holds them on a building or other lease from the Crown or from the Board, or on a building lease from any person. In any other case the tax is leviable from the lessor, if the property is let (vide S. 149). S. 177 enacts that all sums due on account of a tax imposed on the annual value of buildings or lands or both shall, subject to the prior payment of the land revenue, if any, due to His Majesty thereupon, be a first charge upon such buildings or lands.3. It is apparent, therefore, that the provisions of the United Provinces Act in respect of the levy of the taxes are substantially similar to the provisions of the Bombay Act discussed in Civil Appeal No. 66 of 1949.4.
### Response:
0
### Explanation:
2. Under S.128, United Provinces Muncipalities Act, 1916, the municipality can impose a tax in the whole or any part of the municipality on the annual value of buildings or land or of both, and a water tax on the annual value of buildings or land or both. Every such tax on the annual value of buildings or land or both is leviable on the actual occupier of the property upon which the said taxes are assessed, if he is the owner of the buildings or lands or holds them on a building or other lease from the Crown or from the Board, or on a building lease from any person. In any other case the tax is leviable from the lessor, if the property is let (vide S. 149). S. 177 enacts that all sums due on account of a tax imposed on the annual value of buildings or lands or both shall, subject to the prior payment of the land revenue, if any, due to His Majesty thereupon, be a first charge upon such buildings or lands.3. It is apparent, therefore, that the provisions of the United Provinces Act in respect of the levy of the taxes are substantially similar to the provisions of the Bombay Act discussed in Civil Appeal No. 66 of 1949.
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Azmat Azim Khan Vs. Board Of Revenue, Uttar Pradesh, Allahabad & Ors | liquidation of secured debts recoverable both from compensation and rehabilitation grant. The sections are set out hereunder:-"23-A. Compensation and rehabilitation grant to be placed at the disposal of the Collector. The Collector shall require the Compensation Officer and Rehabilitation Grants Officer as may be necessary to place at his disposal in pursuance of S. 70 of the U. P. Zamindari Abolition and Land Reforms Act, 1950, the amount of compensation money and rehabilitation grant payable to the landlord in respect of his proprietary rights in land reported to be liable to attachment or sale under the provisions of sub-section (2) of Section 19.23-B. Liquidation of secured debt recoverable from compensation and rehabilitation grant:- (1) Without prejudice to the provisions of Section 8 of the U. P. Zamindars Debt Reguction Act, 1952, the amount or the bonds on account of compensation or rehabilitation grant received by the Collector in pursuance of the requisition under Section 23-A shall be expended or utilised by the Collector in liquidation of the amount of the secured debt which having regard to the provisions of the U. P. Zamindars Debt Reduction Act, 1952 was secured on the proprietary rights in land in respect of which such money has been received.(2) If any balance out of the compensation and rehabilitation grant received by the Collector in pursuance of the requisition under Section 23-A remains in the hands of the Collector after utilising the same in accordance with the provisions of sub-section (1), such balance shall be utilised by the Collector in discharging the debts, other than the debts, referred to in the said sub-section in order of priority."Both these sections of the 1934 Act refer to Section 70 of the 1950 Act. Section 70 of the said Act is as follows:"Compensation money to be placed at the disposal of the Court or authority: Where before any Court or authority any suit or proceeding is pending which directly or indirectly affects or is likely to affect the right of any person to receive the whole or part of the compensation determined under Chapter III, the Court or authority may require the Compensation Officer to place at its disposal the amount so payable and thereupon the same shall be disposed of in accordance with the orders of such Court or authority."10. The Collector, therefore, by reason of the provisions of the 1934 Act and the 1950 Act requires the Compensation Officer and the Rehabilitation Officer to place the amount of compensation at this disposal. The Collector on receipt of the grant is to expend or utilise the same in liquidation of the amount of the secured debt and if the balance remains it is to be utilised in discharging the debts other than those mentioned in Section 23-B (1) of the 1934 Act, in order of priority.11. By reason of the provisions contained in Section 70 of the 1950 Act and Section 23-A of the 1934 Act the compensation money is sent for by the Collector for the purpose of liquidation of secured debt on which decree is passed. The Compensation Officer under Rule 77 (1) of the Zamindari Abolition and Land Reforms Rules, 1952 could issue notice to the intermediary directing him to take delivery of the bonds. The issue of a notice would not clothe the intermediary with the right to take away the bonds because under Section 18 of the 1934 Act the decree-holder becomes entitled to recover the amount of the decree in the manner and to the extent mentioned in the 1934 Act. The proviso to Section 18 of 1934 Act enacts that the secured debt shall be recoverable from the compensation and rehabilitation grants as though the security had not been extinguished. The question, in the present case, is whether the appellant could lawfully obtain delivery of the bonds from the Compensation Officer. Sections 23-A and 23-B of the 1934 Act require that the amount or the bonds on account of compensation or rehabilitation grant received by the Collector shall be expended or utilitsed by the Collector in liquidation of the amount of the secured debt. Under Section 23-B of the 1934 Act the bonds are received by the Collector in pursuance of the requisition under Section 23-A of the 1934 Act. The absence of the service of a requisition cannot confer a right on the judgment-debtor to take away the compensation money or bonds. The principle is actus curiae neminem gravabit.12. The decree-holder under the provisions of the relevant statutes was entitled to be paid out of the compensation grant monies in satisfaction of the decree. If the Collector had required the Compensation Officer under Section 23-A of the 1934 Act to place at his disposal pursuant to Section 70 of the 1950 Act the compensation money, the bonds could not have been taken delivery of by the appellant. The Board of Revenue rightly gave the directions to secure compliance with the provisions of the statute and performance of statutory duty by the Collector as well as the Compensation Officer. The appellants were not entitled to receive the bonds without satisfying the decree. The appellants were wrong in doing so. The appellant could not take advantage of his own wrong. That is why the Board of Revenue correctly directed the stoppage by the treasuries of payment of instalment money on the bonds. "The other direction by the Board of Revenue requiring the Compensation Officer to hand over the bonds remaining with the Compensation Officer was in aid of valid compliance with Sections 23-A and 23-B of the 1934 Act as well as Section 70 of the 1950 Act.13. The jurisdiction and authority of the Board of Revenue in the present appeal touched directly on the performance of statutory obligations by statutory authorities. The compensation bonds are required by the statute to go to the Collector for liquidation of secured debts. The Judgment-debtor is not entitled to the compensation bonds without liquidation of the debts in accordance with the provisions of the statute. | 0[ds]10. The Collector, therefore, by reason of the provisions of the 1934 Act and the 1950 Act requires the Compensation Officer and the Rehabilitation Officer to place the amount of compensation at this disposal. The Collector on receipt of the grant is to expend or utilise the same in liquidation of the amount of the secured debt and if the balance remains it is to be utilised in discharging the debts other than those mentioned in Section(1) of the 1934 Act, in order of priority.11. By reason of the provisions contained in Section 70 of the 1950 Act and Sectionof the 1934 Act the compensation money is sent for by the Collector for the purpose of liquidation of secured debt on which decree is passed. The Compensation Officer under Rule 77 (1) of the Zamindari Abolition and Land Reforms Rules, 1952 could issue notice to the intermediary directing him to take delivery of the bonds. The issue of a notice would not clothe the intermediary with the right to take away the bonds because under Section 18 of the 1934 Act thebecomes entitled to recover the amount of the decree in the manner and to the extent mentioned in the 1934 Act. The proviso to Section 18 of 1934 Act enacts that the secured debt shall be recoverable from the compensation and rehabilitation grants as though the security had not been extinguished. The question, in the present case, is whether the appellant could lawfully obtain delivery of the bonds from the Compensation Officer. Sections23A and 23Bof the 1934 Act require that the amount or the bonds on account of compensation or rehabilitation grant received by the Collector shall be expended or utilitsed by the Collector in liquidation of the amount of the secured debt. Under Sectionof the 1934 Act the bonds are received by the Collector in pursuance of the requisition under Sectionof the 1934 Act. The absence of the service of a requisition cannot confer a right on theto take away the compensation money or bonds. The principle is actus curiae neminem gravabit.12. Theunder the provisions of the relevant statutes was entitled to be paid out of the compensation grant monies in satisfaction of the decree. If the Collector had required the Compensation Officer under Sectionof the 1934 Act to place at his disposal pursuant to Section 70 of the 1950 Act the compensation money, the bonds could not have been taken delivery of by the appellant. The Board of Revenue rightly gave the directions to secure compliance with the provisions of the statute and performance of statutory duty by the Collector as well as the Compensation Officer. The appellants were not entitled to receive the bonds without satisfying the decree. The appellants were wrong in doing so. The appellant could not take advantage of his own wrong. That is why the Board of Revenue correctly directed the stoppage by the treasuries of payment of instalment money on the bonds. "The other direction by the Board of Revenue requiring the Compensation Officer to hand over the bonds remaining with the Compensation Officer was in aid of valid compliance with Sections23A and 23Bof the 1934 Act as well as Section 70 of the 1950 Act.13. The jurisdiction and authority of the Board of Revenue in the present appeal touched directly on the performance of statutory obligations by statutory authorities. The compensation bonds are required by the statute to go to the Collector for liquidation of secured debts. Theis not entitled to the compensation bonds without liquidation of the debts in accordance with the provisions of the statute. | 0 | 2,131 | 638 | ### 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:
liquidation of secured debts recoverable both from compensation and rehabilitation grant. The sections are set out hereunder:-"23-A. Compensation and rehabilitation grant to be placed at the disposal of the Collector. The Collector shall require the Compensation Officer and Rehabilitation Grants Officer as may be necessary to place at his disposal in pursuance of S. 70 of the U. P. Zamindari Abolition and Land Reforms Act, 1950, the amount of compensation money and rehabilitation grant payable to the landlord in respect of his proprietary rights in land reported to be liable to attachment or sale under the provisions of sub-section (2) of Section 19.23-B. Liquidation of secured debt recoverable from compensation and rehabilitation grant:- (1) Without prejudice to the provisions of Section 8 of the U. P. Zamindars Debt Reguction Act, 1952, the amount or the bonds on account of compensation or rehabilitation grant received by the Collector in pursuance of the requisition under Section 23-A shall be expended or utilised by the Collector in liquidation of the amount of the secured debt which having regard to the provisions of the U. P. Zamindars Debt Reduction Act, 1952 was secured on the proprietary rights in land in respect of which such money has been received.(2) If any balance out of the compensation and rehabilitation grant received by the Collector in pursuance of the requisition under Section 23-A remains in the hands of the Collector after utilising the same in accordance with the provisions of sub-section (1), such balance shall be utilised by the Collector in discharging the debts, other than the debts, referred to in the said sub-section in order of priority."Both these sections of the 1934 Act refer to Section 70 of the 1950 Act. Section 70 of the said Act is as follows:"Compensation money to be placed at the disposal of the Court or authority: Where before any Court or authority any suit or proceeding is pending which directly or indirectly affects or is likely to affect the right of any person to receive the whole or part of the compensation determined under Chapter III, the Court or authority may require the Compensation Officer to place at its disposal the amount so payable and thereupon the same shall be disposed of in accordance with the orders of such Court or authority."10. The Collector, therefore, by reason of the provisions of the 1934 Act and the 1950 Act requires the Compensation Officer and the Rehabilitation Officer to place the amount of compensation at this disposal. The Collector on receipt of the grant is to expend or utilise the same in liquidation of the amount of the secured debt and if the balance remains it is to be utilised in discharging the debts other than those mentioned in Section 23-B (1) of the 1934 Act, in order of priority.11. By reason of the provisions contained in Section 70 of the 1950 Act and Section 23-A of the 1934 Act the compensation money is sent for by the Collector for the purpose of liquidation of secured debt on which decree is passed. The Compensation Officer under Rule 77 (1) of the Zamindari Abolition and Land Reforms Rules, 1952 could issue notice to the intermediary directing him to take delivery of the bonds. The issue of a notice would not clothe the intermediary with the right to take away the bonds because under Section 18 of the 1934 Act the decree-holder becomes entitled to recover the amount of the decree in the manner and to the extent mentioned in the 1934 Act. The proviso to Section 18 of 1934 Act enacts that the secured debt shall be recoverable from the compensation and rehabilitation grants as though the security had not been extinguished. The question, in the present case, is whether the appellant could lawfully obtain delivery of the bonds from the Compensation Officer. Sections 23-A and 23-B of the 1934 Act require that the amount or the bonds on account of compensation or rehabilitation grant received by the Collector shall be expended or utilitsed by the Collector in liquidation of the amount of the secured debt. Under Section 23-B of the 1934 Act the bonds are received by the Collector in pursuance of the requisition under Section 23-A of the 1934 Act. The absence of the service of a requisition cannot confer a right on the judgment-debtor to take away the compensation money or bonds. The principle is actus curiae neminem gravabit.12. The decree-holder under the provisions of the relevant statutes was entitled to be paid out of the compensation grant monies in satisfaction of the decree. If the Collector had required the Compensation Officer under Section 23-A of the 1934 Act to place at his disposal pursuant to Section 70 of the 1950 Act the compensation money, the bonds could not have been taken delivery of by the appellant. The Board of Revenue rightly gave the directions to secure compliance with the provisions of the statute and performance of statutory duty by the Collector as well as the Compensation Officer. The appellants were not entitled to receive the bonds without satisfying the decree. The appellants were wrong in doing so. The appellant could not take advantage of his own wrong. That is why the Board of Revenue correctly directed the stoppage by the treasuries of payment of instalment money on the bonds. "The other direction by the Board of Revenue requiring the Compensation Officer to hand over the bonds remaining with the Compensation Officer was in aid of valid compliance with Sections 23-A and 23-B of the 1934 Act as well as Section 70 of the 1950 Act.13. The jurisdiction and authority of the Board of Revenue in the present appeal touched directly on the performance of statutory obligations by statutory authorities. The compensation bonds are required by the statute to go to the Collector for liquidation of secured debts. The Judgment-debtor is not entitled to the compensation bonds without liquidation of the debts in accordance with the provisions of the statute.
### Response:
0
### Explanation:
10. The Collector, therefore, by reason of the provisions of the 1934 Act and the 1950 Act requires the Compensation Officer and the Rehabilitation Officer to place the amount of compensation at this disposal. The Collector on receipt of the grant is to expend or utilise the same in liquidation of the amount of the secured debt and if the balance remains it is to be utilised in discharging the debts other than those mentioned in Section(1) of the 1934 Act, in order of priority.11. By reason of the provisions contained in Section 70 of the 1950 Act and Sectionof the 1934 Act the compensation money is sent for by the Collector for the purpose of liquidation of secured debt on which decree is passed. The Compensation Officer under Rule 77 (1) of the Zamindari Abolition and Land Reforms Rules, 1952 could issue notice to the intermediary directing him to take delivery of the bonds. The issue of a notice would not clothe the intermediary with the right to take away the bonds because under Section 18 of the 1934 Act thebecomes entitled to recover the amount of the decree in the manner and to the extent mentioned in the 1934 Act. The proviso to Section 18 of 1934 Act enacts that the secured debt shall be recoverable from the compensation and rehabilitation grants as though the security had not been extinguished. The question, in the present case, is whether the appellant could lawfully obtain delivery of the bonds from the Compensation Officer. Sections23A and 23Bof the 1934 Act require that the amount or the bonds on account of compensation or rehabilitation grant received by the Collector shall be expended or utilitsed by the Collector in liquidation of the amount of the secured debt. Under Sectionof the 1934 Act the bonds are received by the Collector in pursuance of the requisition under Sectionof the 1934 Act. The absence of the service of a requisition cannot confer a right on theto take away the compensation money or bonds. The principle is actus curiae neminem gravabit.12. Theunder the provisions of the relevant statutes was entitled to be paid out of the compensation grant monies in satisfaction of the decree. If the Collector had required the Compensation Officer under Sectionof the 1934 Act to place at his disposal pursuant to Section 70 of the 1950 Act the compensation money, the bonds could not have been taken delivery of by the appellant. The Board of Revenue rightly gave the directions to secure compliance with the provisions of the statute and performance of statutory duty by the Collector as well as the Compensation Officer. The appellants were not entitled to receive the bonds without satisfying the decree. The appellants were wrong in doing so. The appellant could not take advantage of his own wrong. That is why the Board of Revenue correctly directed the stoppage by the treasuries of payment of instalment money on the bonds. "The other direction by the Board of Revenue requiring the Compensation Officer to hand over the bonds remaining with the Compensation Officer was in aid of valid compliance with Sections23A and 23Bof the 1934 Act as well as Section 70 of the 1950 Act.13. The jurisdiction and authority of the Board of Revenue in the present appeal touched directly on the performance of statutory obligations by statutory authorities. The compensation bonds are required by the statute to go to the Collector for liquidation of secured debts. Theis not entitled to the compensation bonds without liquidation of the debts in accordance with the provisions of the statute.
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Madan Lal Arora Vs. Excise & Taxation Officer, Amritsar | under the Punjab General Sales Tax Act. He filed returns of his sale turnovers for the four quarters of the financial year ending on March 31, 1955, and likewise, for the four quarters of the financial year ending on March 31, 1956. In respect of each year the Sales Tax Assessing Officer served three successive notices on him on March, 7, 1958, April 4, 1958, and August 18, 1959, requiring him to attend with the documents and other evidence in support of his returns. In the last of the notices mentioned above it was stated that on failure to produce the documents and other evidence mentioned, the case would be decided "on best judgment assessment basis." The petitioner did not comply with any of the notices, but after the receipt of the last notice he presented this petition under Art. 32 of the Constitution challenging the right of the authorities to make a best judgment assessment.2. The question raised by the petitioner turns on S. 11 of the Punjab General Sales tax Act, relevant provisions of which are set out below.S. 11. (1) If the Assessing Authority is satisfied without requiring the presence of registered dealer or the production by him of any evidence that the returns furnished in respect of any period are correct and complete, he shall assess the amount of tax due from the dealer on the basis of such returns.(2) If the Assessing Authority is not satisfied without requiring the presence of a registered dealer who furnished the returns or production of evidence that the returns furnished in respect of any period are correct and complete, he shall serve on such dealer a notice in the prescribed manner requiring him, on a date and at a place specified therein, either to attend in person or to produce or to cause to be produced any evidence on which such dealer may rely in support of such returns.... .... ... .... ..... .......... .... ... .... ..... .......(4) If a registered dealer, having furnished returns in respect of a period, fails to comply with the terms of a notice issued under sub-section (2), the Assessing Authority shall within three years after the expiry of such period, proceed to assess to the best of his judgment the amount, of the tax due from the dealer.The contention of the petitioner is that at the date of the notice last mentioned the Sales Tax authorities had no right to proceed to make any best judgment assessment as the three years within which only such assessment could be made had expired before then. It seems to us that the contention of the petitioner is well founded. The learned counsel for the respondent, the assessing authority, also frankly conceded that he found it difficult to contend to the contrary.3. Sub-section (4) of S. 11 deals with the case of a dealer who has furnished returns in respect of a period and has thereafter been asked to produce evidence to support the returns but has failed to do so. The sub-section provides that in such a case the assessing authority may proceed to make an assessment which to the best of his judgment should be made irrespective of the returns. The reason for this provision is that the correctness of the returns having been doubted by the assessing authority, the dealer has not availed himself of the opportunity afforded to him to remove these doubts. The sub-section, however, provides that the power can be exercised within the three years mentioned in it. Quite plainly, the power cannot be exercised after these three years have gone by.4. The question is, how to compute the three years? The sub-section says "within three years after the expiry of such period." So the three years have to be counted from the expiry of the period mentioned. What then is that period" The words are "such period"., The period referred, therefore, is the period mentioned earlier in the sub-section, and that is the period in respect of which returns had been furnished by the dealer. This is also made clear by sub-sec. (1) of S. 11. That deals with a case where the returns are accepted. Both sub-secs. (1) and (4) deal with returns for the same period. Now S. 10(3) provides that "every registered dealer shall furnish such returns by such dates and to such authority as may be prescribed." "Prescribed" means prescribed by rules framed under the Act. Under R. 20 of these rules, a registered dealer like the petitioner, had to furnish returns quarterly. The rules define "return period" as "the period for which returns are prescribed to be furnished by a dealer."It would, therefore, appear that when sub-sec. (4) of S. 11 talks of "returns in respect of a period," that refers in the case of the petitioner to the quarters in respect of which he submitted the returns. We then come to this that the three years within which the authority could proceed to make the best judgment assessment had to be counted from the end of each quarter in respect of which returns had been filed.5. Now the last of the quarters in respect of which the petitioner filed his returns ended on March 31, 1956. So the assessing authority could not proceed to make a best judgment assessment in respect of this quarter after March 31, 1959. In the case of the earlier quarters, of course, the three years had expired even prior to this date. It is not in dispute, that the assessing officer had not proceeded to make any assessment on the petitioner at the date of any of the notices. In the present case therefore the notices given on August 18, 1959, that best judgment assessments would be made in respect of the quarters constituting the financial years 1955 and 1956, the last of which expired on March 31, 1956, were futile. No such assessments could be made in respect of any of these quarters after March 31, 1959. | 1[ds]The period referred, therefore, is the period mentioned earlier in the sub-section, and that is the period in respect of which returns had been furnished by the dealer. This is also made clear by sub-sec. (1) of S. 11. That deals with a case where the returns are accepted. Both sub-secs. (1) and (4) deal with returns for the same period. Now S. 10(3) provides that "every registered dealer shall furnish such returns by such dates and to such authority as may be prescribed." "Prescribed" means prescribed by rules framed under the Act. Under R. 20 of these rules, a registered dealer like the petitioner, had to furnish returns quarterly. The rules define "return period" as "the period for which returns are prescribed to be furnished by a dealer."It would, therefore, appear that when sub-sec. (4) of S. 11 talks of "returns in respect of a period," that refers in the case of the petitioner to the quarters in respect of which he submitted the returns. We then come to this that the three years within which the authority could proceed to make the best judgment assessment had to be counted from the end of each quarter in respect of which returns had been filed.5. Now the last of the quarters in respect of which the petitioner filed his returns ended on March 31, 1956. So the assessing authority could not proceed to make a best judgment assessment in respect of this quarter after March 31, 1959. In the case of the earlier quarters, of course, the three years had expired even prior to this date. It is not in dispute, that the assessing officer had not proceeded to make any assessment on the petitioner at the date of any of the notices. In the present case therefore the notices given on August 18, 1959, that best judgment assessments would be made in respect of the quarters constituting the financial years 1955 and 1956, the last of which expired on March 31, 1956, were futile. No such assessments could be made in respect of any of these quarters after March 31, 1959. | 1 | 1,143 | 416 | ### Instruction:
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under the Punjab General Sales Tax Act. He filed returns of his sale turnovers for the four quarters of the financial year ending on March 31, 1955, and likewise, for the four quarters of the financial year ending on March 31, 1956. In respect of each year the Sales Tax Assessing Officer served three successive notices on him on March, 7, 1958, April 4, 1958, and August 18, 1959, requiring him to attend with the documents and other evidence in support of his returns. In the last of the notices mentioned above it was stated that on failure to produce the documents and other evidence mentioned, the case would be decided "on best judgment assessment basis." The petitioner did not comply with any of the notices, but after the receipt of the last notice he presented this petition under Art. 32 of the Constitution challenging the right of the authorities to make a best judgment assessment.2. The question raised by the petitioner turns on S. 11 of the Punjab General Sales tax Act, relevant provisions of which are set out below.S. 11. (1) If the Assessing Authority is satisfied without requiring the presence of registered dealer or the production by him of any evidence that the returns furnished in respect of any period are correct and complete, he shall assess the amount of tax due from the dealer on the basis of such returns.(2) If the Assessing Authority is not satisfied without requiring the presence of a registered dealer who furnished the returns or production of evidence that the returns furnished in respect of any period are correct and complete, he shall serve on such dealer a notice in the prescribed manner requiring him, on a date and at a place specified therein, either to attend in person or to produce or to cause to be produced any evidence on which such dealer may rely in support of such returns.... .... ... .... ..... .......... .... ... .... ..... .......(4) If a registered dealer, having furnished returns in respect of a period, fails to comply with the terms of a notice issued under sub-section (2), the Assessing Authority shall within three years after the expiry of such period, proceed to assess to the best of his judgment the amount, of the tax due from the dealer.The contention of the petitioner is that at the date of the notice last mentioned the Sales Tax authorities had no right to proceed to make any best judgment assessment as the three years within which only such assessment could be made had expired before then. It seems to us that the contention of the petitioner is well founded. The learned counsel for the respondent, the assessing authority, also frankly conceded that he found it difficult to contend to the contrary.3. Sub-section (4) of S. 11 deals with the case of a dealer who has furnished returns in respect of a period and has thereafter been asked to produce evidence to support the returns but has failed to do so. The sub-section provides that in such a case the assessing authority may proceed to make an assessment which to the best of his judgment should be made irrespective of the returns. The reason for this provision is that the correctness of the returns having been doubted by the assessing authority, the dealer has not availed himself of the opportunity afforded to him to remove these doubts. The sub-section, however, provides that the power can be exercised within the three years mentioned in it. Quite plainly, the power cannot be exercised after these three years have gone by.4. The question is, how to compute the three years? The sub-section says "within three years after the expiry of such period." So the three years have to be counted from the expiry of the period mentioned. What then is that period" The words are "such period"., The period referred, therefore, is the period mentioned earlier in the sub-section, and that is the period in respect of which returns had been furnished by the dealer. This is also made clear by sub-sec. (1) of S. 11. That deals with a case where the returns are accepted. Both sub-secs. (1) and (4) deal with returns for the same period. Now S. 10(3) provides that "every registered dealer shall furnish such returns by such dates and to such authority as may be prescribed." "Prescribed" means prescribed by rules framed under the Act. Under R. 20 of these rules, a registered dealer like the petitioner, had to furnish returns quarterly. The rules define "return period" as "the period for which returns are prescribed to be furnished by a dealer."It would, therefore, appear that when sub-sec. (4) of S. 11 talks of "returns in respect of a period," that refers in the case of the petitioner to the quarters in respect of which he submitted the returns. We then come to this that the three years within which the authority could proceed to make the best judgment assessment had to be counted from the end of each quarter in respect of which returns had been filed.5. Now the last of the quarters in respect of which the petitioner filed his returns ended on March 31, 1956. So the assessing authority could not proceed to make a best judgment assessment in respect of this quarter after March 31, 1959. In the case of the earlier quarters, of course, the three years had expired even prior to this date. It is not in dispute, that the assessing officer had not proceeded to make any assessment on the petitioner at the date of any of the notices. In the present case therefore the notices given on August 18, 1959, that best judgment assessments would be made in respect of the quarters constituting the financial years 1955 and 1956, the last of which expired on March 31, 1956, were futile. No such assessments could be made in respect of any of these quarters after March 31, 1959.
### Response:
1
### Explanation:
The period referred, therefore, is the period mentioned earlier in the sub-section, and that is the period in respect of which returns had been furnished by the dealer. This is also made clear by sub-sec. (1) of S. 11. That deals with a case where the returns are accepted. Both sub-secs. (1) and (4) deal with returns for the same period. Now S. 10(3) provides that "every registered dealer shall furnish such returns by such dates and to such authority as may be prescribed." "Prescribed" means prescribed by rules framed under the Act. Under R. 20 of these rules, a registered dealer like the petitioner, had to furnish returns quarterly. The rules define "return period" as "the period for which returns are prescribed to be furnished by a dealer."It would, therefore, appear that when sub-sec. (4) of S. 11 talks of "returns in respect of a period," that refers in the case of the petitioner to the quarters in respect of which he submitted the returns. We then come to this that the three years within which the authority could proceed to make the best judgment assessment had to be counted from the end of each quarter in respect of which returns had been filed.5. Now the last of the quarters in respect of which the petitioner filed his returns ended on March 31, 1956. So the assessing authority could not proceed to make a best judgment assessment in respect of this quarter after March 31, 1959. In the case of the earlier quarters, of course, the three years had expired even prior to this date. It is not in dispute, that the assessing officer had not proceeded to make any assessment on the petitioner at the date of any of the notices. In the present case therefore the notices given on August 18, 1959, that best judgment assessments would be made in respect of the quarters constituting the financial years 1955 and 1956, the last of which expired on March 31, 1956, were futile. No such assessments could be made in respect of any of these quarters after March 31, 1959.
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Union Of India Vs. Rajasthan High Court | these directions. The cause for invoking its jurisdiction suo moto was a news report in regard to a breach of security at Sanganer airport. Matters of security ought to be determined by authorities of the government vested with the duty and obligation to do so. Gathering of intelligence information, formulation of policies of security, deciding on steps to be taken to meet threats originating both internally and externally are matters on which courts singularly lack expertise. The breach of security at Sanganer airport undoubtedly was an issue of serious concern and would have been carefully investigated both in terms of prosecuting the offender and by revisiting the reasons for and implications of a security lapse of this nature. This exercise was for the authorities to carry out. It was not for the Court in the exercise of its power of judicial review to suggest a policy which it considered fit. The formulation of suggestions by the High Court for framing a National Security Policy travelled far beyond the legitimate domain of judicial review. Formulation of such a policy is based on information and inputs which are not available to the court. The court is not an expert in such matters. Judicial review is concerned with the legality of executive action and the court can interfere only where there is a breach of law or a violation of the Constitution.10. A suo moto exercise of the nature embarked upon by the High Court encroaches upon the domain of the executive. In a democracy based on the rule of law, government is accountable to the legislature and, through it, to the people. The powers under Article 226 are wide - wide enough to reach out to injustice wherever it may originate. These powers have been construed liberally and have been applied expansively where human rights have been violated. But, the notion of injustice is relatable to justice under the law. Justice should not be made to depend upon the individual perception of a decision maker on where a balance or solution should lie. Judges are expected to apply standards which are objective and well defined by law and founded upon constitutional principle. When they do so, judges walk the path on a road well-travelled. When judicial creativity leads judges to roads less travelled, in search of justice, they have yet to remain firmly rooted in law and the Constitution. The distinction between what lies within and what lies outside the power of judicial review is necessary to preserve the sanctity of judicial power. Judicial power is respected and adhered to in a system based on the rule of law precisely for its nuanced and restrained exercise. If these restraints are not maintained the court as an institution would invite a justifiable criticism of encroaching upon a terrain on which it singularly lacks expertise and which is entrusted for governance to the legislative and executive arms of government. Judgments are enforced, above all, because of the belief which society and arms of governance of a democratic society hold in the sanctity of the judicial process. This sanctity is based on institutional prestige. Institutional authority is established over long years, by a steadfast commitment to a calibrated exercise of judicial power. Fear of consequences is one reason why citizens obey the law as well as judicial decisions. But there are far stronger reasons why they do so and the foundation for that must be carefully preserved. That is the rationale for the principle that judicial review is confined to cases where there is a breach of law or of the Constitution. The judgment of the Rajasthan High Court is an example of a matter where the court should not have entered.11. By the time that the Rajasthan High Court dealt with the case, the list of exemptions had been modified to include Chief Justices of High Courts in the list of persons exempted from pre-embarkation security. Even assuming that the intervention of the High Court in such a matter could have been invoked in the first place (though we believe it should not have been) the matter should have rested there. The cause for which the suo moto writ petition was registered was left behind and the episode which led to the invocation of the jurisdiction found no place in the ultimate directions. The direction to include judges of the High Court was unrelated to the very basis on which the jurisdiction under Article 226 was invoked. But that apart, there is a more fundamental reason why the case should not have been entertained and directions of this nature ought not to have been issued. Matters of security are not issues of prestige. They are not matters of `status. The Union government has adopted the position that the issue as to whether pre-embarkation security exemptions should be granted does not depend only on the warrant of precedence. Among the factors which are borne in mind is that the person who is exempted from pre- embarkation security checks must, according to the government, be secured by such a level of government security on a 24x7 basis, which would virtually preclude the possibility of any prohibited or dangerous items being introduced on board an aircraft through his or her baggage. The security perception of the Union government is that no exemption can be granted to a dignitary if he/she is not under effective government security coverage on a 24x7 basis. Heads of foreign missions in India are exempted from pre-embarkation security checks on a reciprocal basis. We are not called upon to decide upon the legality or justification for the inclusion of the name of any particular individual in the list of exempted persons in these proceedings. What we have said above is to emphasise that the view of the Union government is based on a considered assessment of security perceptions and ought not to have been interfered with in the manner that the High Court did in the exercise of its jurisdiction under Article 226. | 1[ds]10. A suo moto exercise of the nature embarked upon by the High Court encroaches upon the domain of the executive. In a democracy based on the rule of law, government is accountable to the legislature and, through it, to the people. The powers under Article 226 are wide - wide enough to reach out to injustice wherever it may originate. These powers have been construed liberally and have been applied expansively where human rights have been violated. But, the notion of injustice is relatable to justice under the law. Justice should not be made to depend upon the individual perception of a decision maker on where a balance or solution should lie. Judges are expected to apply standards which are objective and well defined by law and founded upon constitutional principle. When they do so, judges walk the path on a road well-travelled. When judicial creativity leads judges to roads less travelled, in search of justice, they have yet to remain firmly rooted in law and the Constitution. The distinction between what lies within and what lies outside the power of judicial review is necessary to preserve the sanctity of judicial power. Judicial power is respected and adhered to in a system based on the rule of law precisely for its nuanced and restrained exercise. If these restraints are not maintained the court as an institution would invite a justifiable criticism of encroaching upon a terrain on which it singularly lacks expertise and which is entrusted for governance to the legislative and executive arms of government. Judgments are enforced, above all, because of the belief which society and arms of governance of a democratic society hold in the sanctity of the judicial process. This sanctity is based on institutional prestige. Institutional authority is established over long years, by a steadfast commitment to a calibrated exercise of judicial power. Fear of consequences is one reason why citizens obey the law as well as judicial decisions. But there are far stronger reasons why they do so and the foundation for that must be carefully preserved. That is the rationale for the principle that judicial review is confined to cases where there is a breach of law or of the Constitution. The judgment of the Rajasthan High Court is an example of a matter where the court should not have entered.11. By the time that the Rajasthan High Court dealt with the case, the list of exemptions had been modified to include Chief Justices of High Courts in the list of persons exempted from pre-embarkation security. Even assuming that the intervention of the High Court in such a matter could have been invoked in the first place (though we believe it should not have been) the matter should have rested there. The cause for which the suo moto writ petition was registered was left behind and the episode which led to the invocation of the jurisdiction found no place in the ultimate directions. The direction to include judges of the High Court was unrelated to the very basis on which the jurisdiction under Article 226 was invoked. But that apart, there is a more fundamental reason why the case should not have been entertained and directions of this nature ought not to have been issued. Matters of security are not issues of prestige. They are not matters of `status. The Union government has adopted the position that the issue as to whether pre-embarkation security exemptions should be granted does not depend only on the warrant of precedence. Among the factors which are borne in mind is that the person who is exempted from pre- embarkation security checks must, according to the government, be secured by such a level of government security on a 24x7 basis, which would virtually preclude the possibility of any prohibited or dangerous items being introduced on board an aircraft through his or her baggage. The security perception of the Union government is that no exemption can be granted to a dignitary if he/she is not under effective government security coverage on a 24x7 basis. Heads of foreign missions in India are exempted from pre-embarkation security checks on a reciprocal basis. We are not called upon to decide upon the legality or justification for the inclusion of the name of any particular individual in the list of exempted persons in these proceedings. What we have said above is to emphasise that the view of the Union government is based on a considered assessment of security perceptions and ought not to have been interfered with in the manner that the High Court did in the exercise of its jurisdiction under Article. 75 ofThe record of the transfer petition indicates that the High Court in the course of the Special Appeal has made certain observations while issuing a notice to the Director General of the Bureau of Civil Aviation Security. Since the High Court has made these observations in a matter which is unrelated to the issue involved in the Special Appeal, we draw the attention of the High Court to the principles enunciated above while disposing of the Civil Appeal filed by the Union government against the judgment of the Rajasthan High Court. A copy of the above judgment shall be placed on the record of the Special Appeal filed before the High Court. In the event that the Special Appeal still remain on the file of the High Court, the High Court shall proceed to hear and dispose of the Special Appeal | 1 | 2,999 | 973 | ### Instruction:
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these directions. The cause for invoking its jurisdiction suo moto was a news report in regard to a breach of security at Sanganer airport. Matters of security ought to be determined by authorities of the government vested with the duty and obligation to do so. Gathering of intelligence information, formulation of policies of security, deciding on steps to be taken to meet threats originating both internally and externally are matters on which courts singularly lack expertise. The breach of security at Sanganer airport undoubtedly was an issue of serious concern and would have been carefully investigated both in terms of prosecuting the offender and by revisiting the reasons for and implications of a security lapse of this nature. This exercise was for the authorities to carry out. It was not for the Court in the exercise of its power of judicial review to suggest a policy which it considered fit. The formulation of suggestions by the High Court for framing a National Security Policy travelled far beyond the legitimate domain of judicial review. Formulation of such a policy is based on information and inputs which are not available to the court. The court is not an expert in such matters. Judicial review is concerned with the legality of executive action and the court can interfere only where there is a breach of law or a violation of the Constitution.10. A suo moto exercise of the nature embarked upon by the High Court encroaches upon the domain of the executive. In a democracy based on the rule of law, government is accountable to the legislature and, through it, to the people. The powers under Article 226 are wide - wide enough to reach out to injustice wherever it may originate. These powers have been construed liberally and have been applied expansively where human rights have been violated. But, the notion of injustice is relatable to justice under the law. Justice should not be made to depend upon the individual perception of a decision maker on where a balance or solution should lie. Judges are expected to apply standards which are objective and well defined by law and founded upon constitutional principle. When they do so, judges walk the path on a road well-travelled. When judicial creativity leads judges to roads less travelled, in search of justice, they have yet to remain firmly rooted in law and the Constitution. The distinction between what lies within and what lies outside the power of judicial review is necessary to preserve the sanctity of judicial power. Judicial power is respected and adhered to in a system based on the rule of law precisely for its nuanced and restrained exercise. If these restraints are not maintained the court as an institution would invite a justifiable criticism of encroaching upon a terrain on which it singularly lacks expertise and which is entrusted for governance to the legislative and executive arms of government. Judgments are enforced, above all, because of the belief which society and arms of governance of a democratic society hold in the sanctity of the judicial process. This sanctity is based on institutional prestige. Institutional authority is established over long years, by a steadfast commitment to a calibrated exercise of judicial power. Fear of consequences is one reason why citizens obey the law as well as judicial decisions. But there are far stronger reasons why they do so and the foundation for that must be carefully preserved. That is the rationale for the principle that judicial review is confined to cases where there is a breach of law or of the Constitution. The judgment of the Rajasthan High Court is an example of a matter where the court should not have entered.11. By the time that the Rajasthan High Court dealt with the case, the list of exemptions had been modified to include Chief Justices of High Courts in the list of persons exempted from pre-embarkation security. Even assuming that the intervention of the High Court in such a matter could have been invoked in the first place (though we believe it should not have been) the matter should have rested there. The cause for which the suo moto writ petition was registered was left behind and the episode which led to the invocation of the jurisdiction found no place in the ultimate directions. The direction to include judges of the High Court was unrelated to the very basis on which the jurisdiction under Article 226 was invoked. But that apart, there is a more fundamental reason why the case should not have been entertained and directions of this nature ought not to have been issued. Matters of security are not issues of prestige. They are not matters of `status. The Union government has adopted the position that the issue as to whether pre-embarkation security exemptions should be granted does not depend only on the warrant of precedence. Among the factors which are borne in mind is that the person who is exempted from pre- embarkation security checks must, according to the government, be secured by such a level of government security on a 24x7 basis, which would virtually preclude the possibility of any prohibited or dangerous items being introduced on board an aircraft through his or her baggage. The security perception of the Union government is that no exemption can be granted to a dignitary if he/she is not under effective government security coverage on a 24x7 basis. Heads of foreign missions in India are exempted from pre-embarkation security checks on a reciprocal basis. We are not called upon to decide upon the legality or justification for the inclusion of the name of any particular individual in the list of exempted persons in these proceedings. What we have said above is to emphasise that the view of the Union government is based on a considered assessment of security perceptions and ought not to have been interfered with in the manner that the High Court did in the exercise of its jurisdiction under Article 226.
### Response:
1
### Explanation:
10. A suo moto exercise of the nature embarked upon by the High Court encroaches upon the domain of the executive. In a democracy based on the rule of law, government is accountable to the legislature and, through it, to the people. The powers under Article 226 are wide - wide enough to reach out to injustice wherever it may originate. These powers have been construed liberally and have been applied expansively where human rights have been violated. But, the notion of injustice is relatable to justice under the law. Justice should not be made to depend upon the individual perception of a decision maker on where a balance or solution should lie. Judges are expected to apply standards which are objective and well defined by law and founded upon constitutional principle. When they do so, judges walk the path on a road well-travelled. When judicial creativity leads judges to roads less travelled, in search of justice, they have yet to remain firmly rooted in law and the Constitution. The distinction between what lies within and what lies outside the power of judicial review is necessary to preserve the sanctity of judicial power. Judicial power is respected and adhered to in a system based on the rule of law precisely for its nuanced and restrained exercise. If these restraints are not maintained the court as an institution would invite a justifiable criticism of encroaching upon a terrain on which it singularly lacks expertise and which is entrusted for governance to the legislative and executive arms of government. Judgments are enforced, above all, because of the belief which society and arms of governance of a democratic society hold in the sanctity of the judicial process. This sanctity is based on institutional prestige. Institutional authority is established over long years, by a steadfast commitment to a calibrated exercise of judicial power. Fear of consequences is one reason why citizens obey the law as well as judicial decisions. But there are far stronger reasons why they do so and the foundation for that must be carefully preserved. That is the rationale for the principle that judicial review is confined to cases where there is a breach of law or of the Constitution. The judgment of the Rajasthan High Court is an example of a matter where the court should not have entered.11. By the time that the Rajasthan High Court dealt with the case, the list of exemptions had been modified to include Chief Justices of High Courts in the list of persons exempted from pre-embarkation security. Even assuming that the intervention of the High Court in such a matter could have been invoked in the first place (though we believe it should not have been) the matter should have rested there. The cause for which the suo moto writ petition was registered was left behind and the episode which led to the invocation of the jurisdiction found no place in the ultimate directions. The direction to include judges of the High Court was unrelated to the very basis on which the jurisdiction under Article 226 was invoked. But that apart, there is a more fundamental reason why the case should not have been entertained and directions of this nature ought not to have been issued. Matters of security are not issues of prestige. They are not matters of `status. The Union government has adopted the position that the issue as to whether pre-embarkation security exemptions should be granted does not depend only on the warrant of precedence. Among the factors which are borne in mind is that the person who is exempted from pre- embarkation security checks must, according to the government, be secured by such a level of government security on a 24x7 basis, which would virtually preclude the possibility of any prohibited or dangerous items being introduced on board an aircraft through his or her baggage. The security perception of the Union government is that no exemption can be granted to a dignitary if he/she is not under effective government security coverage on a 24x7 basis. Heads of foreign missions in India are exempted from pre-embarkation security checks on a reciprocal basis. We are not called upon to decide upon the legality or justification for the inclusion of the name of any particular individual in the list of exempted persons in these proceedings. What we have said above is to emphasise that the view of the Union government is based on a considered assessment of security perceptions and ought not to have been interfered with in the manner that the High Court did in the exercise of its jurisdiction under Article. 75 ofThe record of the transfer petition indicates that the High Court in the course of the Special Appeal has made certain observations while issuing a notice to the Director General of the Bureau of Civil Aviation Security. Since the High Court has made these observations in a matter which is unrelated to the issue involved in the Special Appeal, we draw the attention of the High Court to the principles enunciated above while disposing of the Civil Appeal filed by the Union government against the judgment of the Rajasthan High Court. A copy of the above judgment shall be placed on the record of the Special Appeal filed before the High Court. In the event that the Special Appeal still remain on the file of the High Court, the High Court shall proceed to hear and dispose of the Special Appeal
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N. MOTILAL & ORS. Vs. FAISAL BIN ALI & ANR. | As noticed earlier the definition of the term landlord as well as the term tenant shows that the Act applies to contractual tenancies as well as cases of statutory tenants and their landlords. On some supposed general principles governing all Rent Acts it cannot be argued that such fixation can only be for the benefit of the tenants when the Act clearly lays down that both landlords and tenants can apply for fixation of fair rent. A close reading of the Act shows that the fair rent is fixed for the building and it is payable by whoever is the tenant whether a contractual tenant or statutory tenant. What is fixed is not the fair rent payable by the tenant or to the landlord who applies for fixation of fair rent but fair rent for the building, something like an incident of the tenure regarding the building. 11. Learned counsel for the appellants has placed reliance on the minority judgment delivered by Bhagwati, J. for himself and K.K. Mathew, J. although the minority judgment has held that landlord can make an application for determination of fair rent only after the determination of tenancy and during subsistence of contractual rent no application for fair rent can be given. We are bound by the majority opinion of the Constitution Bench in M/s. Raval & Co. We further notice that both the learned counsel have referred to seven-Judge Bench judgment of this Court in V. Dhanapal Chettiar vs. Yesodal Ammal (supra). Seven-Judge Bench had occasion to refer to the Constitution Bench judgment in M/s. Raval & Co. (supra) which was quoted with approval. Referring to majority judgment in M/s. Raval & Co.s case seven- Judge Bench made following observation: 15………Alagiriswami J. at page 635 after having made that observation with reference to Bhaiya Panjalats case has said-Be that as it may, we are now concerned with the question of fixation of a fair rent. In our opinion the majority decision with regard to Section 4 was undoubtedly correct and the minority stretched the law, if we may say so with respect, too far to hold that Section 4 was not available to the landlord. It should be remembered, as we have said above, that the field of freedom of contract was encroached upon to a very large extent by the State Rent Acts. The encroachment was not entirely and wholly one sided. Same encroachment was envisaged in the interest of the landlord also and equity and justice demanded a fair play on the part of the legislature not to completely ignore the helpless situation of many landlords who are also compared to some big tenants sometimes weaker Section of the society. As for example a widow or a minor lets out a family house in a helpless situation to tide over the financial difficulty and later wants a fair rent to be determined. Again suppose for instance in a city there is an apprehension of external aggression, severe internal disturbances or spread of epidemics, A man in possession of his house may go to another town letting out his premises to a tenant financially strong and of strong, nerves at a rate comparatively much lower than the prevailing market rates. Later on, on the normalization of the situation as against the agreed rate of rent be approaches the Building Controller for fixing a fair rent in accordance with a particular State Rent Act. Why should she or he be debarred from doing so. The statute gives him the protection and enables the Controller to intervene to fix a fair rent as against the term of contract between the parties. In a large number of cases it is the tenant who gets this protection. But in some as in the case of Raval the landlord needs and gets the protection. But this is not a direct authority on the point of notice. 12. The above observation clearly indicates that majority view of the Constitution Bench expressed by Alagiriswami, J. was quoted with approval and the seven-Judge Bench held that the encroachment on the freedom of contract between the landlord and tenant has been envisaged for protecting both the tenant and landlord. The example as quoted in paragraph 15 as extracted above clearly indicates that denial of landlord in moving application for fixation of rent in several cases may operate against the interest of the landlord. 13. The Constitution Bench judgment in M/s. Raval & Co.s case as well as seven-Judge Bench judgment in V. Dhanapal Chettiars case are binding which categorically had laid down that application for determination of fair rent can be made both by the landlord and tenant which can be made even during currency of contractual tenancy. We, thus, find the submission made by the learned counsel for the appellants in the above regard without any substance. 14. The submission of the counsel for the appellants that the consideration on which property was purchased by the landlord in 2008 is equivalent to 20 months rent as enhanced by Rent Controller has no bearing on the issue which has been sought to be raised. The determination of the fair rent has to be made as per the provisions of the 1960 Act and the above submission in no manner advance the case of the appellant. 15. The last submission of the learned counsel for the appellants is that the Central Government, Ministry of Housing and Urban Development has circulated a Model Rent Control Legislation to be adopted by all the States which precludes the landlord for making application for fixation of fair rent during the currency of contractual tenancy (which circular has also not been brought on record), suffice it to say that as per submission of the counsel for the appellants himself that Model Legislations are only guidelines, which in no manner, can have any effect on the statutory provisions of 1960 Act which are still occupying the field. No other submission has been advanced by the counsel for the appellants. | 0[ds]Section 4 of the Telangana Act, 1960 provides for determination of fair rent9. The above provision gives right to both the tenant and the landlord of a building to make an application for fixing fair rent. The provision of Section 4(1) cannot be read in a manner that it is not applicable with regard to the contractual tenancy. The Rent Control Legislations are enacted to protect both tenant and the landlord. In the event the submission of the appellants is accepted that during the currency of the contract of tenancy, no one can file application for fixing of fair rent, the said provision shall operate detrimental to both the tenant and the landlord. This can be explained by taking an illustration. A tenant, who is in urgent need of premises, entered into a contract with landlord where he had to agree to pay an unreasonable higher rent during the force of circumstances, if the tenant has no right to make an application for fixing of fair rent during the currency of tenancy, the said provision will harshly operate against the tenant. The concept of determination of fair rent is to operate equal for the tenant as well as the landlord. The object of the Act is that neither the landlord should charge more than the fair rent of the premises nor tenant should be forced to pay higher rent than the fair rent. The statutory scheme brought in the statute by way of Section 4 which is a beneficial both to the tenant as well as the landlord11. Learned counsel for the appellants has placed reliance on the minority judgment delivered by Bhagwati, J. for himself and K.K. Mathew, J. although the minority judgment has held that landlord can make an application for determination of fair rent only after the determination of tenancy and during subsistence of contractual rent no application for fair rent can be given. We are bound by the majority opinion of the Constitution Bench in M/s. Raval & Co. We further notice that both the learned counsel have referred to seven-Judge Bench judgment of this Court in V. Dhanapal Chettiar vs. Yesodal Ammal (supra). Seven-Judge Bench had occasion to refer to the Constitution Bench judgment in M/s. Raval & Co. (supra) which was quoted with approval. Referring to majority judgment in M/s. Raval & Co.s case seven- Judge Bench made following observation:15………Alagiriswami J. at page 635 after having made that observation with reference to Bhaiya Panjalats case has said-Be that as it may, we are now concerned with the question of fixation of a fair rent. In our opinion the majority decision with regard to Section 4 was undoubtedly correct and the minority stretched the law, if we may say so with respect, too far to hold that Section 4 was not available to the landlord. It should be remembered, as we have said above, that the field of freedom of contract was encroached upon to a very large extent by the State Rent Acts. The encroachment was not entirely and wholly one sided. Same encroachment was envisaged in the interest of the landlord also and equity and justice demanded a fair play on the part of the legislature not to completely ignore the helpless situation of many landlords who are also compared to some big tenants sometimes weaker Section of the society. As for example a widow or a minor lets out a family house in a helpless situation to tide over the financial difficulty and later wants a fair rent to be determined. Again suppose for instance in a city there is an apprehension of external aggression, severe internal disturbances or spread of epidemics, A man in possession of his house may go to another town letting out his premises to a tenant financially strong and of strong, nerves at a rate comparatively much lower than the prevailing market rates. Later on, on the normalization of the situation as against the agreed rate of rent be approaches the Building Controller for fixing a fair rent in accordance with a particular State Rent Act. Why should she or he be debarred from doing so. The statute gives him the protection and enables the Controller to intervene to fix a fair rent as against the term of contract between the parties. In a large number of cases it is the tenant who gets this protection. But in some as in the case of Raval the landlord needs and gets the protection. But this is not a direct authority on the point of notice12. The above observation clearly indicates that majority view of the Constitution Bench expressed by Alagiriswami, J. was quoted with approval and the seven-Judge Bench held that the encroachment on the freedom of contract between the landlord and tenant has been envisaged for protecting both the tenant and landlord. The example as quoted in paragraph 15 as extracted above clearly indicates that denial of landlord in moving application for fixation of rent in several cases may operate against the interest of the landlord13. The Constitution Bench judgment in M/s. Raval & Co.s case as well as seven-Judge Bench judgment in V. Dhanapal Chettiars case are binding which categorically had laid down that application for determination of fair rent can be made both by the landlord and tenant which can be made even during currency of contractual tenancy. We, thus, find the submission made by the learned counsel for the appellants in the above regard without any substance14. The submission of the counsel for the appellants that the consideration on which property was purchased by the landlord in 2008 is equivalent to 20 months rent as enhanced by Rent Controller has no bearing on the issue which has been sought to be raised. The determination of the fair rent has to be made as per the provisions of the 1960 Act and the above submission in no manner advance the case of the appellant15. The last submission of the learned counsel for the appellants is that the Central Government, Ministry of Housing and Urban Development has circulated a Model Rent Control Legislation to be adopted by all the States which precludes the landlord for making application for fixation of fair rent during the currency of contractual tenancy (which circular has also not been brought on record), suffice it to say that as per submission of the counsel for the appellants himself that Model Legislations are only guidelines, which in no manner, can have any effect on the statutory provisions of 1960 Act which are still occupying the field. No other submission has been advanced by the counsel for the appellants. | 0 | 2,830 | 1,183 | ### 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:
As noticed earlier the definition of the term landlord as well as the term tenant shows that the Act applies to contractual tenancies as well as cases of statutory tenants and their landlords. On some supposed general principles governing all Rent Acts it cannot be argued that such fixation can only be for the benefit of the tenants when the Act clearly lays down that both landlords and tenants can apply for fixation of fair rent. A close reading of the Act shows that the fair rent is fixed for the building and it is payable by whoever is the tenant whether a contractual tenant or statutory tenant. What is fixed is not the fair rent payable by the tenant or to the landlord who applies for fixation of fair rent but fair rent for the building, something like an incident of the tenure regarding the building. 11. Learned counsel for the appellants has placed reliance on the minority judgment delivered by Bhagwati, J. for himself and K.K. Mathew, J. although the minority judgment has held that landlord can make an application for determination of fair rent only after the determination of tenancy and during subsistence of contractual rent no application for fair rent can be given. We are bound by the majority opinion of the Constitution Bench in M/s. Raval & Co. We further notice that both the learned counsel have referred to seven-Judge Bench judgment of this Court in V. Dhanapal Chettiar vs. Yesodal Ammal (supra). Seven-Judge Bench had occasion to refer to the Constitution Bench judgment in M/s. Raval & Co. (supra) which was quoted with approval. Referring to majority judgment in M/s. Raval & Co.s case seven- Judge Bench made following observation: 15………Alagiriswami J. at page 635 after having made that observation with reference to Bhaiya Panjalats case has said-Be that as it may, we are now concerned with the question of fixation of a fair rent. In our opinion the majority decision with regard to Section 4 was undoubtedly correct and the minority stretched the law, if we may say so with respect, too far to hold that Section 4 was not available to the landlord. It should be remembered, as we have said above, that the field of freedom of contract was encroached upon to a very large extent by the State Rent Acts. The encroachment was not entirely and wholly one sided. Same encroachment was envisaged in the interest of the landlord also and equity and justice demanded a fair play on the part of the legislature not to completely ignore the helpless situation of many landlords who are also compared to some big tenants sometimes weaker Section of the society. As for example a widow or a minor lets out a family house in a helpless situation to tide over the financial difficulty and later wants a fair rent to be determined. Again suppose for instance in a city there is an apprehension of external aggression, severe internal disturbances or spread of epidemics, A man in possession of his house may go to another town letting out his premises to a tenant financially strong and of strong, nerves at a rate comparatively much lower than the prevailing market rates. Later on, on the normalization of the situation as against the agreed rate of rent be approaches the Building Controller for fixing a fair rent in accordance with a particular State Rent Act. Why should she or he be debarred from doing so. The statute gives him the protection and enables the Controller to intervene to fix a fair rent as against the term of contract between the parties. In a large number of cases it is the tenant who gets this protection. But in some as in the case of Raval the landlord needs and gets the protection. But this is not a direct authority on the point of notice. 12. The above observation clearly indicates that majority view of the Constitution Bench expressed by Alagiriswami, J. was quoted with approval and the seven-Judge Bench held that the encroachment on the freedom of contract between the landlord and tenant has been envisaged for protecting both the tenant and landlord. The example as quoted in paragraph 15 as extracted above clearly indicates that denial of landlord in moving application for fixation of rent in several cases may operate against the interest of the landlord. 13. The Constitution Bench judgment in M/s. Raval & Co.s case as well as seven-Judge Bench judgment in V. Dhanapal Chettiars case are binding which categorically had laid down that application for determination of fair rent can be made both by the landlord and tenant which can be made even during currency of contractual tenancy. We, thus, find the submission made by the learned counsel for the appellants in the above regard without any substance. 14. The submission of the counsel for the appellants that the consideration on which property was purchased by the landlord in 2008 is equivalent to 20 months rent as enhanced by Rent Controller has no bearing on the issue which has been sought to be raised. The determination of the fair rent has to be made as per the provisions of the 1960 Act and the above submission in no manner advance the case of the appellant. 15. The last submission of the learned counsel for the appellants is that the Central Government, Ministry of Housing and Urban Development has circulated a Model Rent Control Legislation to be adopted by all the States which precludes the landlord for making application for fixation of fair rent during the currency of contractual tenancy (which circular has also not been brought on record), suffice it to say that as per submission of the counsel for the appellants himself that Model Legislations are only guidelines, which in no manner, can have any effect on the statutory provisions of 1960 Act which are still occupying the field. No other submission has been advanced by the counsel for the appellants.
### Response:
0
### Explanation:
detrimental to both the tenant and the landlord. This can be explained by taking an illustration. A tenant, who is in urgent need of premises, entered into a contract with landlord where he had to agree to pay an unreasonable higher rent during the force of circumstances, if the tenant has no right to make an application for fixing of fair rent during the currency of tenancy, the said provision will harshly operate against the tenant. The concept of determination of fair rent is to operate equal for the tenant as well as the landlord. The object of the Act is that neither the landlord should charge more than the fair rent of the premises nor tenant should be forced to pay higher rent than the fair rent. The statutory scheme brought in the statute by way of Section 4 which is a beneficial both to the tenant as well as the landlord11. Learned counsel for the appellants has placed reliance on the minority judgment delivered by Bhagwati, J. for himself and K.K. Mathew, J. although the minority judgment has held that landlord can make an application for determination of fair rent only after the determination of tenancy and during subsistence of contractual rent no application for fair rent can be given. We are bound by the majority opinion of the Constitution Bench in M/s. Raval & Co. We further notice that both the learned counsel have referred to seven-Judge Bench judgment of this Court in V. Dhanapal Chettiar vs. Yesodal Ammal (supra). Seven-Judge Bench had occasion to refer to the Constitution Bench judgment in M/s. Raval & Co. (supra) which was quoted with approval. Referring to majority judgment in M/s. Raval & Co.s case seven- Judge Bench made following observation:15………Alagiriswami J. at page 635 after having made that observation with reference to Bhaiya Panjalats case has said-Be that as it may, we are now concerned with the question of fixation of a fair rent. In our opinion the majority decision with regard to Section 4 was undoubtedly correct and the minority stretched the law, if we may say so with respect, too far to hold that Section 4 was not available to the landlord. It should be remembered, as we have said above, that the field of freedom of contract was encroached upon to a very large extent by the State Rent Acts. The encroachment was not entirely and wholly one sided. Same encroachment was envisaged in the interest of the landlord also and equity and justice demanded a fair play on the part of the legislature not to completely ignore the helpless situation of many landlords who are also compared to some big tenants sometimes weaker Section of the society. As for example a widow or a minor lets out a family house in a helpless situation to tide over the financial difficulty and later wants a fair rent to be determined. Again suppose for instance in a city there is an apprehension of external aggression, severe internal disturbances or spread of epidemics, A man in possession of his house may go to another town letting out his premises to a tenant financially strong and of strong, nerves at a rate comparatively much lower than the prevailing market rates. Later on, on the normalization of the situation as against the agreed rate of rent be approaches the Building Controller for fixing a fair rent in accordance with a particular State Rent Act. Why should she or he be debarred from doing so. The statute gives him the protection and enables the Controller to intervene to fix a fair rent as against the term of contract between the parties. In a large number of cases it is the tenant who gets this protection. But in some as in the case of Raval the landlord needs and gets the protection. But this is not a direct authority on the point of notice12. The above observation clearly indicates that majority view of the Constitution Bench expressed by Alagiriswami, J. was quoted with approval and the seven-Judge Bench held that the encroachment on the freedom of contract between the landlord and tenant has been envisaged for protecting both the tenant and landlord. The example as quoted in paragraph 15 as extracted above clearly indicates that denial of landlord in moving application for fixation of rent in several cases may operate against the interest of the landlord13. The Constitution Bench judgment in M/s. Raval & Co.s case as well as seven-Judge Bench judgment in V. Dhanapal Chettiars case are binding which categorically had laid down that application for determination of fair rent can be made both by the landlord and tenant which can be made even during currency of contractual tenancy. We, thus, find the submission made by the learned counsel for the appellants in the above regard without any substance14. The submission of the counsel for the appellants that the consideration on which property was purchased by the landlord in 2008 is equivalent to 20 months rent as enhanced by Rent Controller has no bearing on the issue which has been sought to be raised. The determination of the fair rent has to be made as per the provisions of the 1960 Act and the above submission in no manner advance the case of the appellant15. The last submission of the learned counsel for the appellants is that the Central Government, Ministry of Housing and Urban Development has circulated a Model Rent Control Legislation to be adopted by all the States which precludes the landlord for making application for fixation of fair rent during the currency of contractual tenancy (which circular has also not been brought on record), suffice it to say that as per submission of the counsel for the appellants himself that Model Legislations are only guidelines, which in no manner, can have any effect on the statutory provisions of 1960 Act which are still occupying the field. No other submission has been advanced by the counsel for the appellants.
|
Shahazada Bi Vs. Halimabi (Dead) By Lrs | respect of each of the seven rooms by adverse title. The most clinching fact was that defendant no.4 had died during the pendency of the suit. Defendant no.4 was in possession of a room leased out to defendant no.5 for rent. Taking into account the above circumstances, the trial Court was right in holding that the suit against defendant no.4 alone stood dismissed as abated. The trial Court was, therefore, right in decreeing the suit of the plaintiffs as prayed for only against defendants no.1 to 3. Order 22 Rule 4 CPC lays down that where within the time limited by law, no application is made to implead the legal representatives of a deceased defendant, the suit shall abate as against a deceased defendant. This rule does not provide that by the omission to implead the legal representative of a defendant, the suit will abate as a whole. What was the interest of the deceased defendant in the case, whether he represented the entire interest or only a specific part is a fact that would depend on the circumstances of each case. If the interests of the co-defendants are separate, as in case of co-owners, the suit will abate only as regards the particular interest of the deceased party. [See: Masilamani Nadar v. Kuttiamma & Ors. reported in 1960 (4) Kerala Law Journal 936]. In the case Sant Singh & Anr. v. Gulab Singh & Ors. reported in [AIR 1928 Lahore 573], it has been held that under Order 22 Rule 4 (3) read with Order 22 Rule 11 CPC where no application is made to implead the legal representative of the deceased respondent, the appeal shall abate as against the deceased respondent. That, so far as the statute is concerned, the appeal abates only qua the deceased respondent, but the question whether the partial abatement leads to an abatement of the appeal in its entirety depends upon general principles. If the case is of such a nature that the absence of the legal representative of the deceased respondent prevents the Court from hearing the appeal as against the other respondents, then the appeal abates in toto. Otherwise, the abatement takes place only in respect of the interest of the respondent who has died. The test often adopted in such cases is whether in the event of the appeal being allowed as against the remaining respondents there would or would not be two contradictory decrees in the same suit with respect to the same subject matter. The Court cannot be called upon to make two inconsistent decrees about the same property, and in order to avoid conflicting decrees the Court has no alternative but to dismiss the appeal as a whole. If, on the other hand, the success of the appeal would not lead to conflicting decrees, then there is no valid reason why the Court should not hear the appeal and adjudicate upon the dispute between the parties. It was further held in the said judgment that a distinction must be made between the cases in which there is specification of shares or interests, and those in which there is no specification of interests. That in cases where there is a specification of share or interest, the appeal cannot abate as a whole. That in such cases, the appeal abates only in respect of the interest of the deceased respondent and not as a whole. To the same effect is the ratio of the judgment of this Court in the case of Sardar Amarjit Singh Kalra (Dead) by LRs. & Ors. v. Pramod Gupta (SMT) (Dead)by LRs. & Ors. reported in [(2003) 3 SCC 272] , in which it has been held that existence of a joint right as distinguished from tenancy-in-common alone is not the criteria but the joint character of the decree de hors relationship of the parties inter-se and the frame of the appeal will take colour from the nature of the decree challenged. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice. A careful reading of Order 22 CPC would support the view that the said provisions were devised to ensure continuation and culmination in an effective adjudication. It was further observed that the mere fact that a khata was a joint khata was not relevant for deciding the question of abatement under Order 22, as long as each of the appellants had their own independent, distinct and separate shares in the property. It was held that wherever the plaintiffs are found to have distinct, separate and independent rights of their own, joined together for sake of convenience in a single suit, the decree passed by the Court is to be viewed in substance as the combination of several decrees in favour of one or the other party and not as the joint decree. The question as to whether the decree is joint and inseverable or joint and severable has to be decided, for the purposes of abatement with reference to the fact as to whether the decree passed in the proceedings vis-Ã -vis the remaining parties would suffer the vice of inconsistent decrees or conflicting decrees. A decree can be said to be inconsistent or contradictory with another decree only when two decrees are incapable of enforcement and that enforcement of one would negate the enforcement of the other. 10. In the present case, the 4th defendant was found by the trial Court to be in possession of one of seven rooms. He had let it out on rent to defendant no.5. The trial Court on evidence found that Ex.P8 showed different rooms to be in possession of different defendants who claimed to be tenants-in-common in possession of each of the seven rooms. They claimed to have perfected their title by adverse possession to each of the seven rooms. There was no challenge to Ex.P8 in evidence. Nor was there any challenge to description of the suit property in schedule A and schedule B. | 0[ds]9. We do not find any merit in this civil appeal. As stated above, the plaintiffs instituted the suit inter alia for recovery of possession of seven rooms more particularly described in schedule B to the plaint. Schedule B gave detailed description of the suit property. Each of the seven rooms has been marked on the sketch tendered in evidence as B1 to B7. In the plaint, the original plaintiffs separately mentioned the rooms in possession of each of the defendants vide paragraph no.5. They gave a separate schedule to the plaint, which described the rooms in possession of each of the above defendants. Schedule B also gave the dimension of each room. Further, plaintiffs sought possession of each of the rooms separately from each of the defendants vide paragraph no.11 read with schedule B to the plaint. In the evidence, plaintiffs produced and proved the map (Ex.P8) based on the description of the seven rooms which tallied with the description in schedule B. Further, the defendants herein alleged that they were in possession of the seven rooms with consent of Essanullah. In the suit, the defendants further contended that they had perfected their title in respect of each of the seven rooms by adverse title. The most clinching fact was that defendant no.4 had died during the pendency of the suit. Defendant no.4 was in possession of a room leased out to defendant no.5 for rent. Taking into account the above circumstances, the trial Court was right in holding that the suit against defendant no.4 alone stood dismissed as abated. The trial Court was, therefore, right in decreeing the suit of the plaintiffs as prayed for only against defendants no.1 to 3. Order 22 Rule 4CPC lays down that where within the time limited by law, no application is made to implead the legal representatives of a deceased defendant, the suit shall abate as against a deceased defendant. This rule does not provide that by the omission to implead the legal representative of a defendant, the suit will abate as a whole. What was the interest of the deceased defendant in the case, whether he represented the entire interest or only a specific part is a fact that would depend on the circumstances of each case. If the interests of the co-defendants are separate, as in case of co-owners, the suit will abate only as regards the particular interest of the deceased party. [See: Masilamani Nadar v. Kuttiamma & Ors. reported in 1960 (4) Kerala Law Journal 936]. In the case Sant Singh & Anr. v. Gulab Singh & Ors. reported in [AIR 1928 Lahore 573], it has been held that under Order 22 Rule 4 (3) read with Order 22 Rule 11CPC where no application is made to implead the legal representative of the deceased respondent, the appeal shall abate as against the deceased respondent. That, so far as the statute is concerned, the appeal abates only qua the deceased respondent, but the question whether the partial abatement leads to an abatement of the appeal in its entirety depends upon general principles. If the case is of such a nature that the absence of the legal representative of the deceased respondent prevents the Court from hearing the appeal as against the other respondents, then the appeal abates in toto. Otherwise, the abatement takes place only in respect of the interest of the respondent who has died. The test often adopted in such cases is whether in the event of the appeal being allowed as against the remaining respondents there would or would not be two contradictory decrees in the same suit with respect to the same subject matter. The Court cannot be called upon to make two inconsistent decrees about the same property, and in order to avoid conflicting decrees the Court has no alternative but to dismiss the appeal as a whole. If, on the other hand, the success of the appeal would not lead to conflicting decrees, then there is no valid reason why the Court should not hear the appeal and adjudicate upon the dispute between the parties. It was further held in the said judgment that a distinction must be made between the cases in which there is specification of shares or interests, and those in which there is no specification of interests. That in cases where there is a specification of share or interest, the appeal cannot abate as a whole. That in such cases, the appeal abates only in respect of the interest of the deceased respondent and not as a whole. To the same effect is the ratio of the judgment of this Court in the case of Sardar Amarjit Singh Kalra (Dead) by LRs. & Ors. v. Pramod Gupta (SMT) (Dead)by LRs. & Ors. reported in [(2003) 3 SCC 272] , in which it has been held that existence of a joint right as distinguished from tenancy-in-common alone is not the criteria but the joint character of the decree de hors relationship of the parties inter-se and the frame of the appeal will take colour from the nature of the decree challenged. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice. A careful reading of Order 22CPC would support the view that the said provisions were devised to ensure continuation and culmination in an effective adjudication. It was further observed that the mere fact that a khata was a joint khata was not relevant for deciding the question of abatement under Order 22, as long as each of the appellants had their own independent, distinct and separate shares in the property. It was held that wherever the plaintiffs are found to have distinct, separate and independent rights of their own, joined together for sake of convenience in a single suit, the decree passed by the Court is to be viewed in substance as the combination of several decrees in favour of one or the other party and not as the joint decree. The question as to whether the decree is joint and inseverable or joint and severable has to be decided, for the purposes of abatement with reference to the fact as to whether the decree passed in the proceedings vis-Ã -vis the remaining parties would suffer the vice of inconsistent decrees or conflicting decrees. A decree can be said to be inconsistent or contradictory with another decree only when two decrees are incapable of enforcement and that enforcement of one would negate the enforcement of the other10. In the present case, the 4th defendant was found by the trial Court to be in possession of one of seven rooms. He had let it out on rent to defendant no.5. The trial Court on evidence found that Ex.P8 showed different rooms to be in possession of different defendants who claimed to be tenants-in-common in possession of each of the seven rooms. They claimed to have perfected their title by adverse possession to each of the seven rooms. There was no challenge to Ex.P8 in evidence. Nor was there any challenge to description of the suit property in schedule A and schedule B. | 0 | 3,368 | 1,309 | ### 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:
respect of each of the seven rooms by adverse title. The most clinching fact was that defendant no.4 had died during the pendency of the suit. Defendant no.4 was in possession of a room leased out to defendant no.5 for rent. Taking into account the above circumstances, the trial Court was right in holding that the suit against defendant no.4 alone stood dismissed as abated. The trial Court was, therefore, right in decreeing the suit of the plaintiffs as prayed for only against defendants no.1 to 3. Order 22 Rule 4 CPC lays down that where within the time limited by law, no application is made to implead the legal representatives of a deceased defendant, the suit shall abate as against a deceased defendant. This rule does not provide that by the omission to implead the legal representative of a defendant, the suit will abate as a whole. What was the interest of the deceased defendant in the case, whether he represented the entire interest or only a specific part is a fact that would depend on the circumstances of each case. If the interests of the co-defendants are separate, as in case of co-owners, the suit will abate only as regards the particular interest of the deceased party. [See: Masilamani Nadar v. Kuttiamma & Ors. reported in 1960 (4) Kerala Law Journal 936]. In the case Sant Singh & Anr. v. Gulab Singh & Ors. reported in [AIR 1928 Lahore 573], it has been held that under Order 22 Rule 4 (3) read with Order 22 Rule 11 CPC where no application is made to implead the legal representative of the deceased respondent, the appeal shall abate as against the deceased respondent. That, so far as the statute is concerned, the appeal abates only qua the deceased respondent, but the question whether the partial abatement leads to an abatement of the appeal in its entirety depends upon general principles. If the case is of such a nature that the absence of the legal representative of the deceased respondent prevents the Court from hearing the appeal as against the other respondents, then the appeal abates in toto. Otherwise, the abatement takes place only in respect of the interest of the respondent who has died. The test often adopted in such cases is whether in the event of the appeal being allowed as against the remaining respondents there would or would not be two contradictory decrees in the same suit with respect to the same subject matter. The Court cannot be called upon to make two inconsistent decrees about the same property, and in order to avoid conflicting decrees the Court has no alternative but to dismiss the appeal as a whole. If, on the other hand, the success of the appeal would not lead to conflicting decrees, then there is no valid reason why the Court should not hear the appeal and adjudicate upon the dispute between the parties. It was further held in the said judgment that a distinction must be made between the cases in which there is specification of shares or interests, and those in which there is no specification of interests. That in cases where there is a specification of share or interest, the appeal cannot abate as a whole. That in such cases, the appeal abates only in respect of the interest of the deceased respondent and not as a whole. To the same effect is the ratio of the judgment of this Court in the case of Sardar Amarjit Singh Kalra (Dead) by LRs. & Ors. v. Pramod Gupta (SMT) (Dead)by LRs. & Ors. reported in [(2003) 3 SCC 272] , in which it has been held that existence of a joint right as distinguished from tenancy-in-common alone is not the criteria but the joint character of the decree de hors relationship of the parties inter-se and the frame of the appeal will take colour from the nature of the decree challenged. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice. A careful reading of Order 22 CPC would support the view that the said provisions were devised to ensure continuation and culmination in an effective adjudication. It was further observed that the mere fact that a khata was a joint khata was not relevant for deciding the question of abatement under Order 22, as long as each of the appellants had their own independent, distinct and separate shares in the property. It was held that wherever the plaintiffs are found to have distinct, separate and independent rights of their own, joined together for sake of convenience in a single suit, the decree passed by the Court is to be viewed in substance as the combination of several decrees in favour of one or the other party and not as the joint decree. The question as to whether the decree is joint and inseverable or joint and severable has to be decided, for the purposes of abatement with reference to the fact as to whether the decree passed in the proceedings vis-Ã -vis the remaining parties would suffer the vice of inconsistent decrees or conflicting decrees. A decree can be said to be inconsistent or contradictory with another decree only when two decrees are incapable of enforcement and that enforcement of one would negate the enforcement of the other. 10. In the present case, the 4th defendant was found by the trial Court to be in possession of one of seven rooms. He had let it out on rent to defendant no.5. The trial Court on evidence found that Ex.P8 showed different rooms to be in possession of different defendants who claimed to be tenants-in-common in possession of each of the seven rooms. They claimed to have perfected their title by adverse possession to each of the seven rooms. There was no challenge to Ex.P8 in evidence. Nor was there any challenge to description of the suit property in schedule A and schedule B.
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0
### Explanation:
perfected their title in respect of each of the seven rooms by adverse title. The most clinching fact was that defendant no.4 had died during the pendency of the suit. Defendant no.4 was in possession of a room leased out to defendant no.5 for rent. Taking into account the above circumstances, the trial Court was right in holding that the suit against defendant no.4 alone stood dismissed as abated. The trial Court was, therefore, right in decreeing the suit of the plaintiffs as prayed for only against defendants no.1 to 3. Order 22 Rule 4CPC lays down that where within the time limited by law, no application is made to implead the legal representatives of a deceased defendant, the suit shall abate as against a deceased defendant. This rule does not provide that by the omission to implead the legal representative of a defendant, the suit will abate as a whole. What was the interest of the deceased defendant in the case, whether he represented the entire interest or only a specific part is a fact that would depend on the circumstances of each case. If the interests of the co-defendants are separate, as in case of co-owners, the suit will abate only as regards the particular interest of the deceased party. [See: Masilamani Nadar v. Kuttiamma & Ors. reported in 1960 (4) Kerala Law Journal 936]. In the case Sant Singh & Anr. v. Gulab Singh & Ors. reported in [AIR 1928 Lahore 573], it has been held that under Order 22 Rule 4 (3) read with Order 22 Rule 11CPC where no application is made to implead the legal representative of the deceased respondent, the appeal shall abate as against the deceased respondent. That, so far as the statute is concerned, the appeal abates only qua the deceased respondent, but the question whether the partial abatement leads to an abatement of the appeal in its entirety depends upon general principles. If the case is of such a nature that the absence of the legal representative of the deceased respondent prevents the Court from hearing the appeal as against the other respondents, then the appeal abates in toto. Otherwise, the abatement takes place only in respect of the interest of the respondent who has died. The test often adopted in such cases is whether in the event of the appeal being allowed as against the remaining respondents there would or would not be two contradictory decrees in the same suit with respect to the same subject matter. The Court cannot be called upon to make two inconsistent decrees about the same property, and in order to avoid conflicting decrees the Court has no alternative but to dismiss the appeal as a whole. If, on the other hand, the success of the appeal would not lead to conflicting decrees, then there is no valid reason why the Court should not hear the appeal and adjudicate upon the dispute between the parties. It was further held in the said judgment that a distinction must be made between the cases in which there is specification of shares or interests, and those in which there is no specification of interests. That in cases where there is a specification of share or interest, the appeal cannot abate as a whole. That in such cases, the appeal abates only in respect of the interest of the deceased respondent and not as a whole. To the same effect is the ratio of the judgment of this Court in the case of Sardar Amarjit Singh Kalra (Dead) by LRs. & Ors. v. Pramod Gupta (SMT) (Dead)by LRs. & Ors. reported in [(2003) 3 SCC 272] , in which it has been held that existence of a joint right as distinguished from tenancy-in-common alone is not the criteria but the joint character of the decree de hors relationship of the parties inter-se and the frame of the appeal will take colour from the nature of the decree challenged. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice. A careful reading of Order 22CPC would support the view that the said provisions were devised to ensure continuation and culmination in an effective adjudication. It was further observed that the mere fact that a khata was a joint khata was not relevant for deciding the question of abatement under Order 22, as long as each of the appellants had their own independent, distinct and separate shares in the property. It was held that wherever the plaintiffs are found to have distinct, separate and independent rights of their own, joined together for sake of convenience in a single suit, the decree passed by the Court is to be viewed in substance as the combination of several decrees in favour of one or the other party and not as the joint decree. The question as to whether the decree is joint and inseverable or joint and severable has to be decided, for the purposes of abatement with reference to the fact as to whether the decree passed in the proceedings vis-Ã -vis the remaining parties would suffer the vice of inconsistent decrees or conflicting decrees. A decree can be said to be inconsistent or contradictory with another decree only when two decrees are incapable of enforcement and that enforcement of one would negate the enforcement of the other10. In the present case, the 4th defendant was found by the trial Court to be in possession of one of seven rooms. He had let it out on rent to defendant no.5. The trial Court on evidence found that Ex.P8 showed different rooms to be in possession of different defendants who claimed to be tenants-in-common in possession of each of the seven rooms. They claimed to have perfected their title by adverse possession to each of the seven rooms. There was no challenge to Ex.P8 in evidence. Nor was there any challenge to description of the suit property in schedule A and schedule B.
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Workmen Of Dahingeapar Tea Estate Vs. Dahingeapar Tea Estate | staff of Dahingeapar Tea Estate. The Industrial Tribunal answered this question in favour of the workmen and made necessary directions as to re-instatement and payment of salary for the period of forced unemployment. On what findings did the Industrial Tribunal so answer the main question? It found that (a) the tea estate was sold as a running or going concern, with a reservation as to employment of members of the staff; (b) that all the manual labourers as distinguished from members of the staff were continued in employment to their previous terms with continuity of service; (c) three members of the staff also were continued in employment but as new recruits, without continuity of service; and (d) there were no trade reason or reasons of efficiency etc. for which the remaining 18 or 19 members of the staff were not taken. The Tribunal said : - "It was nobodys case that those members of the staff were guilty of any breach of the services conditions or rules or of any misconduct for which their services were liable to be terminated forthwith or for which they could be deprived of their right of service and of the continuity of their service in the estate concerned in which they were so long serving without any fault." During the conciliation proceedings the respondents made its position quite clear that it was willing to take 12 members of the staff out of the then existing 16 members on their old scales of pay, but only as new comers on formal petitions for appointment. In other words, the respondent insisted on two conditions; (a) the old members of the staff must make fresh applications and (b) they must come in as new entrants, thereby losing their continuity of service and such other rights as they might have acquired as to gratuity, bonus etc. The Tribunal held that these were unreasonable conditions and further observed : "In the instant case, the incoming management proposed to disturb the staff members only and not the labour force of the garden. Nothing else would tend to create unrest more than such discrimination would." 19. On the aforesaid findings arrived at by the Industrial Tribunal it had jurisdiction to make the order it did, irrespective of any purely legal question as to whether there was any contractual relation of employer and workmen between the respondent and the discharged members of the staff. The Appellants Tribunal did not displace any of the findings arrived at by the Industrial Tribunal, but approached the two questions for adjudication as abstract questions of law - which, in our view, was a fundamentally wrong approach, though the President said in one part of his judgment that an Industrial Tribunal has nothing to do with the decision of an abstract question of law. The President proceeded mainly on this basis: the services of the workmen were terminated by the old management by proper notice, and as they did not, except a few, apply for fresh appointment on the new terms and conditions, there was no contract of service, enforceable in law, between the workmen and the two managements in question. This line of reasoning overlooked two essential circumstances; one was that the notice of discharge was given by the outgoing management during the dispute and pendency of conciliation proceedings and was hit by S. 33 of the Act, and the other was that in spite of the notice all the members of the staff were allowed to continue in service till 4-1-1954. The third circumstances was that the Industrial Tribunal found that the conditions which the incoming management sought to impose were intended to discriminate between workmen and most likely to create industrial unrest. The clause in the memorandum of agreement or the sale deed which gave the respondent a discretion to employ or not employ members of the staff or to give them fresh employment was indeed found by the Appellate Tribunal to be a bona fide clause as between the vendor and purchaser; but the question before the Industrial tribunal was as to how it would operate against the workmen in the context of the industrial dispute referred to it for adjudication. In the circumstances of the present case the Industrial Tribunal found that it operated to their prejudice, and we are not satisfied that the Appellate Tribunal has given cogent reasons for going behind that finding. 20. There was a difference between the two members of the Appellate Tribunal as to whether the discharged members of the staff were entitled to retrenchment compensation or not from the outgoing management. In the view which we have taken, that question is no longer relevant. 21. A number of points were discussed and a number of decisions of High Courts and Labour Courts were cited at the bar on the question whether on a transfer of business as a going concern, the incoming management becomes a successor to the outgoing management; and in so, to what extent the incoming management must recognise the rights of labour already accrued as to gratuity, bonus etc., and continuity of service of such labour of such labour as was employed by the outgoing management. In the view we have taken on the facts of this case it is not necessary for us, on this occasion, to express any opinion on those questions or pronounce any opinion on the correctness of any of those decisions. 22. We prefer to base our decision in this case on this short ground; there was an industrial dispute which was referred to the Industrial Tribunal for adjudication; the reference being competent, the Industrial Tribunal had jurisdiction to make an adjudication and in doing so it could exercise all its functions under the Act, and in the exercise of those functions it came to certain findings on the facts of the present case on which it had jurisdiction to make the order it did; it Appellate Tribunal did not displace those findings of the Industrial Tribunal. | 1[ds]In the case before us as between the vendor and the discharged workmen, the latter came within the definition of workmen as they were discharged during the pendency of conciliation proceedings. This fact did not, however, make them workmen of the purchaser. Even then they were persons in whose employment or non-employment the actual workmen of the Dahingeapar Tea Estate were directly interested. Therefore, the ratio of the Western India, Automobile Association v. Industrial Tribunal, Bombay, 1949 FCR 321: (AIR 1949 FC 111) (B), as also of the later decision in workmen of the Dimakuchi Tea Estate (supra) applied, and the dispute was clearly an industrial dispute within the meaning of the ActOne of the difficulties in the present case arose out of the somewhat wide and general terms in which question No. 1 was framed. That question consisted of two parts : (i) whether the transfer of management of the Dahingeapar Tea Estate consequent on its sale as a going concern to the respondent put an end to the services of the members of the staff; and (ii) whether any agreement between the buyer and the seller can deprive the members of the staff of their rights of service under the original contracts and disturb their continuity of service. In our opinion, the Industrial Tribunal could not deal with those questions as mere abstract questions of law; and we doubt if they could answer them as such. Much of the controversy in this case, and perhaps a good part of the difference of opinion between the Industrial Tribunal and the Labour Appellate Tribunal and also between the two members of the latter body inter se have arisen by reason of the different standpoints from which question No. 1 has been approached.We do not think that it was necessary, and we go further and say that we doubt if it was the function of the Industrial Tribunal, to decide the abstract question of law whether on a transfer of management consequent on a sale, the services of workmen - be they members of the staff or labourers - are automatically put an end to22. We prefer to base our decision in this case on this short ground; there was an industrial dispute which was referred to the Industrial Tribunal for adjudication; the reference being competent, the Industrial Tribunal had jurisdiction to make an adjudication and in doing so it could exercise all its functions under the Act, and in the exercise of those functions it came to certain findings on the facts of the present case on which it had jurisdiction to make the order it did; it Appellate Tribunal did not displace those findings of the Industrial Tribunal19. On the aforesaid findings arrived at by the Industrial Tribunal it had jurisdiction to make the order it did, irrespective of any purely legal question as to whether there was any contractual relation of employer and workmen between the respondent and the discharged members of the staff. The Appellants Tribunal did not displace any of the findings arrived at by the Industrial Tribunal, but approached the two questions for adjudication as abstract questions of law - which, in our view, was a fundamentally wrong approach, though the President said in one part of his judgment that an Industrial Tribunal has nothing to do with the decision of an abstract question of law. The President proceeded mainly on this basis: the services of the workmen were terminated by the old management by proper notice, and as they did not, except a few, apply for fresh appointment on the new terms and conditions, there was no contract of service, enforceable in law, between the workmen and the two managements in question. This line of reasoning overlooked two essential circumstances; one was that the notice of discharge was given by the outgoing management during the dispute and pendency of conciliation proceedings and was hit by S. 33 of the Act, and the other was that in spite of the notice all the members of the staff were allowed to continue in service till 4-1-1954. The third circumstances was that the Industrial Tribunal found that the conditions which the incoming management sought to impose were intended to discriminate between workmen and most likely to create industrial unrest. The clause in the memorandum of agreement or the sale deed which gave the respondent a discretion to employ or not employ members of the staff or to give them fresh employment was indeed found by the Appellate Tribunal to be a bona fide clause as between the vendor and purchaser; but the question before the Industrial tribunal was as to how it would operate against the workmen in the context of the industrial dispute referred to it for adjudication. In the circumstances of the present case the Industrial Tribunal found that it operated to their prejudice, and we are not satisfied that the Appellate Tribunal has given cogent reasons for going behind that finding20. There was a difference between the two members of the Appellate Tribunal as to whether the discharged members of the staff were entitled to retrenchment compensation or not from the outgoing management. In the view which we have taken, that question is no longer relevantIn the view we have taken on the facts of this case it is not necessary for us, on this occasion, to express any opinion on those questions or pronounce any opinion on the correctness of any of those decisions. | 1 | 4,981 | 985 | ### 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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staff of Dahingeapar Tea Estate. The Industrial Tribunal answered this question in favour of the workmen and made necessary directions as to re-instatement and payment of salary for the period of forced unemployment. On what findings did the Industrial Tribunal so answer the main question? It found that (a) the tea estate was sold as a running or going concern, with a reservation as to employment of members of the staff; (b) that all the manual labourers as distinguished from members of the staff were continued in employment to their previous terms with continuity of service; (c) three members of the staff also were continued in employment but as new recruits, without continuity of service; and (d) there were no trade reason or reasons of efficiency etc. for which the remaining 18 or 19 members of the staff were not taken. The Tribunal said : - "It was nobodys case that those members of the staff were guilty of any breach of the services conditions or rules or of any misconduct for which their services were liable to be terminated forthwith or for which they could be deprived of their right of service and of the continuity of their service in the estate concerned in which they were so long serving without any fault." During the conciliation proceedings the respondents made its position quite clear that it was willing to take 12 members of the staff out of the then existing 16 members on their old scales of pay, but only as new comers on formal petitions for appointment. In other words, the respondent insisted on two conditions; (a) the old members of the staff must make fresh applications and (b) they must come in as new entrants, thereby losing their continuity of service and such other rights as they might have acquired as to gratuity, bonus etc. The Tribunal held that these were unreasonable conditions and further observed : "In the instant case, the incoming management proposed to disturb the staff members only and not the labour force of the garden. Nothing else would tend to create unrest more than such discrimination would." 19. On the aforesaid findings arrived at by the Industrial Tribunal it had jurisdiction to make the order it did, irrespective of any purely legal question as to whether there was any contractual relation of employer and workmen between the respondent and the discharged members of the staff. The Appellants Tribunal did not displace any of the findings arrived at by the Industrial Tribunal, but approached the two questions for adjudication as abstract questions of law - which, in our view, was a fundamentally wrong approach, though the President said in one part of his judgment that an Industrial Tribunal has nothing to do with the decision of an abstract question of law. The President proceeded mainly on this basis: the services of the workmen were terminated by the old management by proper notice, and as they did not, except a few, apply for fresh appointment on the new terms and conditions, there was no contract of service, enforceable in law, between the workmen and the two managements in question. This line of reasoning overlooked two essential circumstances; one was that the notice of discharge was given by the outgoing management during the dispute and pendency of conciliation proceedings and was hit by S. 33 of the Act, and the other was that in spite of the notice all the members of the staff were allowed to continue in service till 4-1-1954. The third circumstances was that the Industrial Tribunal found that the conditions which the incoming management sought to impose were intended to discriminate between workmen and most likely to create industrial unrest. The clause in the memorandum of agreement or the sale deed which gave the respondent a discretion to employ or not employ members of the staff or to give them fresh employment was indeed found by the Appellate Tribunal to be a bona fide clause as between the vendor and purchaser; but the question before the Industrial tribunal was as to how it would operate against the workmen in the context of the industrial dispute referred to it for adjudication. In the circumstances of the present case the Industrial Tribunal found that it operated to their prejudice, and we are not satisfied that the Appellate Tribunal has given cogent reasons for going behind that finding. 20. There was a difference between the two members of the Appellate Tribunal as to whether the discharged members of the staff were entitled to retrenchment compensation or not from the outgoing management. In the view which we have taken, that question is no longer relevant. 21. A number of points were discussed and a number of decisions of High Courts and Labour Courts were cited at the bar on the question whether on a transfer of business as a going concern, the incoming management becomes a successor to the outgoing management; and in so, to what extent the incoming management must recognise the rights of labour already accrued as to gratuity, bonus etc., and continuity of service of such labour of such labour as was employed by the outgoing management. In the view we have taken on the facts of this case it is not necessary for us, on this occasion, to express any opinion on those questions or pronounce any opinion on the correctness of any of those decisions. 22. We prefer to base our decision in this case on this short ground; there was an industrial dispute which was referred to the Industrial Tribunal for adjudication; the reference being competent, the Industrial Tribunal had jurisdiction to make an adjudication and in doing so it could exercise all its functions under the Act, and in the exercise of those functions it came to certain findings on the facts of the present case on which it had jurisdiction to make the order it did; it Appellate Tribunal did not displace those findings of the Industrial Tribunal.
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1
### Explanation:
In the case before us as between the vendor and the discharged workmen, the latter came within the definition of workmen as they were discharged during the pendency of conciliation proceedings. This fact did not, however, make them workmen of the purchaser. Even then they were persons in whose employment or non-employment the actual workmen of the Dahingeapar Tea Estate were directly interested. Therefore, the ratio of the Western India, Automobile Association v. Industrial Tribunal, Bombay, 1949 FCR 321: (AIR 1949 FC 111) (B), as also of the later decision in workmen of the Dimakuchi Tea Estate (supra) applied, and the dispute was clearly an industrial dispute within the meaning of the ActOne of the difficulties in the present case arose out of the somewhat wide and general terms in which question No. 1 was framed. That question consisted of two parts : (i) whether the transfer of management of the Dahingeapar Tea Estate consequent on its sale as a going concern to the respondent put an end to the services of the members of the staff; and (ii) whether any agreement between the buyer and the seller can deprive the members of the staff of their rights of service under the original contracts and disturb their continuity of service. In our opinion, the Industrial Tribunal could not deal with those questions as mere abstract questions of law; and we doubt if they could answer them as such. Much of the controversy in this case, and perhaps a good part of the difference of opinion between the Industrial Tribunal and the Labour Appellate Tribunal and also between the two members of the latter body inter se have arisen by reason of the different standpoints from which question No. 1 has been approached.We do not think that it was necessary, and we go further and say that we doubt if it was the function of the Industrial Tribunal, to decide the abstract question of law whether on a transfer of management consequent on a sale, the services of workmen - be they members of the staff or labourers - are automatically put an end to22. We prefer to base our decision in this case on this short ground; there was an industrial dispute which was referred to the Industrial Tribunal for adjudication; the reference being competent, the Industrial Tribunal had jurisdiction to make an adjudication and in doing so it could exercise all its functions under the Act, and in the exercise of those functions it came to certain findings on the facts of the present case on which it had jurisdiction to make the order it did; it Appellate Tribunal did not displace those findings of the Industrial Tribunal19. On the aforesaid findings arrived at by the Industrial Tribunal it had jurisdiction to make the order it did, irrespective of any purely legal question as to whether there was any contractual relation of employer and workmen between the respondent and the discharged members of the staff. The Appellants Tribunal did not displace any of the findings arrived at by the Industrial Tribunal, but approached the two questions for adjudication as abstract questions of law - which, in our view, was a fundamentally wrong approach, though the President said in one part of his judgment that an Industrial Tribunal has nothing to do with the decision of an abstract question of law. The President proceeded mainly on this basis: the services of the workmen were terminated by the old management by proper notice, and as they did not, except a few, apply for fresh appointment on the new terms and conditions, there was no contract of service, enforceable in law, between the workmen and the two managements in question. This line of reasoning overlooked two essential circumstances; one was that the notice of discharge was given by the outgoing management during the dispute and pendency of conciliation proceedings and was hit by S. 33 of the Act, and the other was that in spite of the notice all the members of the staff were allowed to continue in service till 4-1-1954. The third circumstances was that the Industrial Tribunal found that the conditions which the incoming management sought to impose were intended to discriminate between workmen and most likely to create industrial unrest. The clause in the memorandum of agreement or the sale deed which gave the respondent a discretion to employ or not employ members of the staff or to give them fresh employment was indeed found by the Appellate Tribunal to be a bona fide clause as between the vendor and purchaser; but the question before the Industrial tribunal was as to how it would operate against the workmen in the context of the industrial dispute referred to it for adjudication. In the circumstances of the present case the Industrial Tribunal found that it operated to their prejudice, and we are not satisfied that the Appellate Tribunal has given cogent reasons for going behind that finding20. There was a difference between the two members of the Appellate Tribunal as to whether the discharged members of the staff were entitled to retrenchment compensation or not from the outgoing management. In the view which we have taken, that question is no longer relevantIn the view we have taken on the facts of this case it is not necessary for us, on this occasion, to express any opinion on those questions or pronounce any opinion on the correctness of any of those decisions.
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Commissioner Of Income-Tax, Madras Vs. M/S. Ashok Leyland Ltd | pay him Rs.300 (as consideration for his shares) making together Rs.19,500 (payable in five annual instalments) which he agreed to accept in full satisfaction of all claims against the Company or the Directors. The question was whether the payment of Rs.19,200 was a deductible expenditure. The Special Commissioners decided against the Company but the Kings Bench Division as well as Court of Appeal accepted the Companys contention and held that the payment of Rs.19,200 made was an admissible deduction in arriving its profits for Income-tax purposes. In the course of his judgment Rowlatt. J. sitting on the Kings Bench Division relied on the observations of Lord Chancellor in Atherton v. British Insulated and Helsby Cables Ltd. (1926) 10 TC 155 at p. 192 to the effect: a sum of money expended, not of necessity and with a view to a direct and immediate benefit to the trade, but voluntarily and on the grounds of commercial expediency, and in order indirectly to facilitate the carrying on of the business, may yet be expended wholly and exclusively for the purposes of the trade. 14. These observations of the Lord Chancellor were again quoted with approval by Lord Hanworth M. R. when the matter was taken in appeal to the Court of Appeal. 15. The next case which may be usefully referred is the decision in Anglo Persian Oil Co. Ltd. v. Dale, (1932) 16 Tax Cas 253. Therein the assessee company by agreement made in 1910 and 1914 had appointed another limited company as its agents in Persia and the East for a period of years, upon the terms (inter alia) that the agents should be remunerated by commission at specified rates. With the passage of time the amounts payable to the agents by way of commission increased far beyond the amounts originally contemplated by the Company and, after negotiation between the parties, the agreements were cancelled in 1922, the agent company agreeing to go into voluntary liquidation and the company agreeing to pay to the agents Rs.300,000 in cash. This sum was in fact paid and the company contended before the Special Commissioners that it was an admissible deduction in computing the Companys profits for purposes of Income-tax and Corporation Profits Tax. The Special Commissioners rejected this contention and the Company appealed. Rowlatt, J. sitting in the Kings Bench Division allowed the appeal and held that the payment to the agents was an admissible deduction for the purpose of Income-tax and Corporation Profits tax. His decision was affirmed by the Court of Appeal. In the course of his judgment Rowlatt, J. observed : Now I want to see how the Commissioners have dealt with it, and what they say is that this was expenditure of a special nature to secure an enduring benefit for the Companys trade by getting rid of an onerous contract. In my judgment that is a finding which is perfectly inconclusive. It does not deal with the question. The question is not merely getting rid of an onerous contract, but an onerous contract for what If it is an onerous contract for the payment of wages or commission which are chargeable to revenue account in the plainest possible way, and if that is the onerous contract that you are getting rid of, it is impossible to suggest that that is a reason for saying that this is a capital expenditure unless you get rid of that onerous contract (as I pointed out just now) by erecting in its place a capital asset in the nature of - of course I am only using this as illustrative example - a labour-saving machine which gives you an asset and so dispenses with the expense of labour. But to say that it is a capital expenditure because it secured an enduring benefit by getting rid of an onerous contract is not to state the material thing, and it is completely inconclusive. 16. In G. Scammell and Nephew Ltd. v. Rowles, (1940) ITR Suppl. 41 the Court of Appeal held that the expenditure incurred for the termination of a trading relationship in order to avoid losses occurring in the future through that relationship, whether pecuniary losses or commercial inconveniences, is just as much for the purposes of the trade as the making or the carrying into effect of a trading agreement. 17. The case which can be said to be the nearest to the facts of the present case decided by any Indian Court is that decided by the Calcutta High Court in Anglo-Persian Oil Co. (India) Ltd. v. Commissioner of Income-tax, (1933) 1 ITR 129 = (AIR 1933 Cal 777). Therein money was paid by on Oil Company in a lump sum as compensation for loss of agency whereby the company relieved itself of future annual payments of commission chargeable to revenue account. The question was whether the money paid as compensation was allowable as proper deduction from the business profits of the Company. The Court upheld the contention of the Company that it was a revenue expenditure. Further the Court observed that the principle that capital receipt spells capital expenditure or vice versa is simple but it is not necessarily sound. Whether a sum is received on capital or revenue account depends or may depend upon the character of the business of the receipt. Whether a payment is or is not in the nature of capital expenditure depends or may depend upon the character of the business of the prayer and upon other factors related thereto. 18. It is obvious from the facts set out earlier that the compensation paid for the termination of the services of the managing agents was a payment made with a view to save business expenditure in the relevant accounting year as well as for a few more years. It was not made for acquiring any enduring benefit or income-yielding asset. We agree with the High Court that the tribunal was right in its conclusion that the expenditure in question was a revenue expenditure. | 0[ds]16. In G. Scammell and Nephew Ltd. v. Rowles, (1940) ITR Suppl. 41 the Court of Appeal held that the expenditure incurred for the termination of a trading relationship in order to avoid losses occurring in the future through that relationship, whether pecuniary losses or commercial inconveniences, is just as much for the purposes of the trade as the making or the carrying into effect of a trading agreement17. The case which can be said to be the nearest to the facts of the present case decided by any Indian Court is that decided by the Calcutta High Court in Anglo-Persian Oil Co. (India) Ltd. v. Commissioner of Income-tax, (1933) 1 ITR 129 = (AIR 1933 Cal 777). Therein money was paid by on Oil Company in a lump sum as compensation for loss of agency whereby the company relieved itself of future annual payments of commission chargeable to revenue account. The question was whether the money paid as compensation was allowable as proper deduction from the business profits of the Company. The Court upheld the contention of the Company that it was a revenue expenditure. Further the Court observed that the principle that capital receipt spells capital expenditure or vice versa is simple but it is not necessarily sound. Whether a sum is received on capital or revenue account depends or may depend upon the character of the business of the receipt. Whether a payment is or is not in the nature of capital expenditure depends or may depend upon the character of the business of the prayer and upon other factors related thereto18. It is obvious from the facts set out earlier that the compensation paid for the termination of the servicesof the managing agents was a payment made with a view to save business expenditure in the relevant accounting year as well as for a few more years. It was not made for acquiring any enduring benefit or income-yielding asset. We agree with the High Court that the tribunal was right in its conclusion that the expenditure in question was a revenue expenditure. | 0 | 3,186 | 375 | ### Instruction:
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pay him Rs.300 (as consideration for his shares) making together Rs.19,500 (payable in five annual instalments) which he agreed to accept in full satisfaction of all claims against the Company or the Directors. The question was whether the payment of Rs.19,200 was a deductible expenditure. The Special Commissioners decided against the Company but the Kings Bench Division as well as Court of Appeal accepted the Companys contention and held that the payment of Rs.19,200 made was an admissible deduction in arriving its profits for Income-tax purposes. In the course of his judgment Rowlatt. J. sitting on the Kings Bench Division relied on the observations of Lord Chancellor in Atherton v. British Insulated and Helsby Cables Ltd. (1926) 10 TC 155 at p. 192 to the effect: a sum of money expended, not of necessity and with a view to a direct and immediate benefit to the trade, but voluntarily and on the grounds of commercial expediency, and in order indirectly to facilitate the carrying on of the business, may yet be expended wholly and exclusively for the purposes of the trade. 14. These observations of the Lord Chancellor were again quoted with approval by Lord Hanworth M. R. when the matter was taken in appeal to the Court of Appeal. 15. The next case which may be usefully referred is the decision in Anglo Persian Oil Co. Ltd. v. Dale, (1932) 16 Tax Cas 253. Therein the assessee company by agreement made in 1910 and 1914 had appointed another limited company as its agents in Persia and the East for a period of years, upon the terms (inter alia) that the agents should be remunerated by commission at specified rates. With the passage of time the amounts payable to the agents by way of commission increased far beyond the amounts originally contemplated by the Company and, after negotiation between the parties, the agreements were cancelled in 1922, the agent company agreeing to go into voluntary liquidation and the company agreeing to pay to the agents Rs.300,000 in cash. This sum was in fact paid and the company contended before the Special Commissioners that it was an admissible deduction in computing the Companys profits for purposes of Income-tax and Corporation Profits Tax. The Special Commissioners rejected this contention and the Company appealed. Rowlatt, J. sitting in the Kings Bench Division allowed the appeal and held that the payment to the agents was an admissible deduction for the purpose of Income-tax and Corporation Profits tax. His decision was affirmed by the Court of Appeal. In the course of his judgment Rowlatt, J. observed : Now I want to see how the Commissioners have dealt with it, and what they say is that this was expenditure of a special nature to secure an enduring benefit for the Companys trade by getting rid of an onerous contract. In my judgment that is a finding which is perfectly inconclusive. It does not deal with the question. The question is not merely getting rid of an onerous contract, but an onerous contract for what If it is an onerous contract for the payment of wages or commission which are chargeable to revenue account in the plainest possible way, and if that is the onerous contract that you are getting rid of, it is impossible to suggest that that is a reason for saying that this is a capital expenditure unless you get rid of that onerous contract (as I pointed out just now) by erecting in its place a capital asset in the nature of - of course I am only using this as illustrative example - a labour-saving machine which gives you an asset and so dispenses with the expense of labour. But to say that it is a capital expenditure because it secured an enduring benefit by getting rid of an onerous contract is not to state the material thing, and it is completely inconclusive. 16. In G. Scammell and Nephew Ltd. v. Rowles, (1940) ITR Suppl. 41 the Court of Appeal held that the expenditure incurred for the termination of a trading relationship in order to avoid losses occurring in the future through that relationship, whether pecuniary losses or commercial inconveniences, is just as much for the purposes of the trade as the making or the carrying into effect of a trading agreement. 17. The case which can be said to be the nearest to the facts of the present case decided by any Indian Court is that decided by the Calcutta High Court in Anglo-Persian Oil Co. (India) Ltd. v. Commissioner of Income-tax, (1933) 1 ITR 129 = (AIR 1933 Cal 777). Therein money was paid by on Oil Company in a lump sum as compensation for loss of agency whereby the company relieved itself of future annual payments of commission chargeable to revenue account. The question was whether the money paid as compensation was allowable as proper deduction from the business profits of the Company. The Court upheld the contention of the Company that it was a revenue expenditure. Further the Court observed that the principle that capital receipt spells capital expenditure or vice versa is simple but it is not necessarily sound. Whether a sum is received on capital or revenue account depends or may depend upon the character of the business of the receipt. Whether a payment is or is not in the nature of capital expenditure depends or may depend upon the character of the business of the prayer and upon other factors related thereto. 18. It is obvious from the facts set out earlier that the compensation paid for the termination of the services of the managing agents was a payment made with a view to save business expenditure in the relevant accounting year as well as for a few more years. It was not made for acquiring any enduring benefit or income-yielding asset. We agree with the High Court that the tribunal was right in its conclusion that the expenditure in question was a revenue expenditure.
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16. In G. Scammell and Nephew Ltd. v. Rowles, (1940) ITR Suppl. 41 the Court of Appeal held that the expenditure incurred for the termination of a trading relationship in order to avoid losses occurring in the future through that relationship, whether pecuniary losses or commercial inconveniences, is just as much for the purposes of the trade as the making or the carrying into effect of a trading agreement17. The case which can be said to be the nearest to the facts of the present case decided by any Indian Court is that decided by the Calcutta High Court in Anglo-Persian Oil Co. (India) Ltd. v. Commissioner of Income-tax, (1933) 1 ITR 129 = (AIR 1933 Cal 777). Therein money was paid by on Oil Company in a lump sum as compensation for loss of agency whereby the company relieved itself of future annual payments of commission chargeable to revenue account. The question was whether the money paid as compensation was allowable as proper deduction from the business profits of the Company. The Court upheld the contention of the Company that it was a revenue expenditure. Further the Court observed that the principle that capital receipt spells capital expenditure or vice versa is simple but it is not necessarily sound. Whether a sum is received on capital or revenue account depends or may depend upon the character of the business of the receipt. Whether a payment is or is not in the nature of capital expenditure depends or may depend upon the character of the business of the prayer and upon other factors related thereto18. It is obvious from the facts set out earlier that the compensation paid for the termination of the servicesof the managing agents was a payment made with a view to save business expenditure in the relevant accounting year as well as for a few more years. It was not made for acquiring any enduring benefit or income-yielding asset. We agree with the High Court that the tribunal was right in its conclusion that the expenditure in question was a revenue expenditure.
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The Commissioner of Income-tax, Punjab, Haryana, J. & K. & H.P Vs. Prabhu Dayal (dead) by his legal representatives | of carrying on their trade; they were not contracts for the disposal of their products or for the engagement of agents or other employees necessary for the conduct of their business; nor were they merely agreements as to how their trading profits when earned should be distributed as between the contracting parties. On the contrary, the cancelled agreements related to the whole structure of the appellants profit making apparatus. They regulated the appellants activities, defined what they might and what they might not do, and affected the whole conduct of their business. I have difficulty in seeing how money laid out to secure, or money received for the cancellation of, so fundamental an organisation of a traders activities can be regarded as an income disbursement or an income receipt. . . . In my opinion that asset, the congeries of rights which the appellants enjoyed under the agreements and which for a price they surrendered was a capital asset." 16. It is now well settled that a distinction has to be drawn between a payment made for past services or discharge of past liabilities and that made for compensation for termination of an income producing asset. The former does not lose its revenue nature but the latter being a payment for destruction of a capital asset, must be considered as capital receipt. 17. The distinction between a capital receipt and a revenue receipt came up for consideration before this Court in Senairam Dongarmal v. Commissioner of Income-tax Assam, 42 ITR 392 = (AIR 1961 SC 1579 ). The assessee therein owned tea estate consisting of tea gardens, factories and other buildings carried on a business of growing and manufacturing tea. The factory and other buildings on the estate were requisitioned for defence purpose by the military authorities. The assessee continued to be in possession of the tea gardens and tended them to preserve the plants but the manufacture of tea was completely stopped. The assessee was paid compensation for the year 1944-45 under the Defence of India rules calculated on the basis of the out-turn of tea that would have been manufactured by the assessee during that period. The question was whether the amounts of compensation were revenue receipts taxable in the hands of the assessee. This court held that the first consideration before holding a receipt to be profits or gains of business within S. 10 of the Income-tax Act was to see if there was a business at all of which it could be said to be income. The primary condition of the application of section 10 was that tax was payable by an assessee under the head "Profits and gains of a business" in respect of a business carried on by him Where an assessee did not carry on business at all the section could not be made applicable and any compensation for requisition of assets that he received could not bear the character of profits of a business. The Court further held that the amounts of compensation received by the assessee were not revenue receipts and did not comprise any element of income. It is true that in that case the Court did not consider whether the income in question could have been considered as income from other sources but the ratio of that decision is that the compensation paid being in respect of sterilisation of an income producing asset, the same should be considered as a capital receipt. 18. The only other decision we need make reference is the decision of this Court in Kettlewell Bullen and Co. Ltd. v. Commissioner of Income-tax, Calcutta 53 ITR 261 = (AIR 1965 SC 65 ). Therein this Court observed that it cannot be said as general rule that what is determinative of the nature of a receipt on the cancellation of a contract of agency or office is extinction or compulsory cessation of the agency or office. Where payment is made to compensate a person for cancellation of a contract which does not affect the trading structure of his business or deprive him of what in substance is his source of income, termination of the contract being a normal incident of the business, and such cancellation leaves him free to carry on his trade though freed from the contract terminated, the receipt is revenue; where by the cancellation of an agency the trading structure of the assessee is impaired, or such cancellation results in loss of what may be regarded as the source of the assessees income, the payment made to compensate for cancellation of the agency agreement is normally a capital receipt. These decisions lay down the tests to be applied in distinguishing a capital receipt from a revenue receipt. With the guidance thus afforded, let us now take a second look at the facts found for answering the question referred. The assessee, possibly, by some fortuitous circumstances discovered Kankar in some place in Jind State. This circumstances gave him an opportunity to bring about an agreement between the State of Jind and Shanti Prasad Jain and when Shanti Prasad Jain transferred his right to a new company, in the formation of which the assessee had a hand, he was promised certain yearly commission on the net profits earned by the company. None of these activities of the assessee can be considered as a business activity but yet he had acquire an income yielding asset as a result of his activities. But the compromise decree destroyed that asset and in its place he was given Rs. 70,000 as compensation. This payment was neither in respect of the services rendered by him in the past nor towards the accumulated commission due to him. It was paid as compensation to him because he gave up his right to get commission in future to which he was entitled under the agreement. It was a price paid for surrendering a valuable right which in our opinion was a capital asset. Therefore that receipt must be considered as a capital receipt. | 0[ds]10. It was not the case of the Revenue that the assessee was engaged in the business of discovering Kankar or any other mineral. He appears to have found Kankar by mere chance. It is also not the case of the Revenue that the assessee was engaged in the business of bringing about agreements between parties. In fact, it is not the case of the Revenue that the assessee was engaged in any business. There is no evidence to show that he was a business man. His discovery of Kankar as well as his part in bringing about the agreement mentioned earlier were stray acts, possibly occasioned by fortuitous circumstances11. Business as understood in the income-tax law connotes some real, substantial and systematic or organised course of activity or conduct with a set purpose - see the decision of this Court in Narain Swadeshi Weaving Mills v. Commissioner of Excess Profits Tax, 26 ITR 765 = (AIR 1955 SC 176 ). By this statement we do not mean to say that under no circumstance a single transaction cannot amount to a business transaction. But this is not one such. Herein we are dealing with the stray activity of a non-businessman. Hence it is difficult to agree with the Revenue in its contention that the agreement entered into by the assessee with the Dalmia Dadri Cement company should be considered as a business activity12. In the determination of the question whether a particular receipt is capital or an income, it is not possible to lay down any single test as infallible or any single criterion as decisive. The question must ultimately depend on the facts of the particular case and the authorities bearing on the question are valuable only as indicating the matters that have to be taken into account in reaching a decision. That, however, is not to say that the question is one of fact, for these question between capital and income, trading profit or no trading profit, are questions which, though they may depend to a very great extent on the particular facts of each case, do involve conclusions of law to be drawn from those facts16. It is now well settled that a distinction has to be drawn between a payment made for past services or discharge of past liabilities and that made for compensation for termination of an income producing asset. The former does not lose its revenue nature but the latter being a payment for destruction of a capital asset, must be considered as capital receiptIt is true that in that case the Court did not consider whether the income in question could have been considered as income from other sources but the ratio of that decision is that the compensation paid being in respect of sterilisation of an income producing asset, the same should be considered as a capital receiptWhere payment is made to compensate a person for cancellation of a contract which does not affect the trading structure of his business or deprive him of what in substance is his source of income, termination of the contract being a normal incident of the business, and such cancellation leaves him free to carry on his trade though freed from the contract terminated, the receipt is revenue; where by the cancellation of an agency the trading structure of the assessee is impaired, or such cancellation results in loss of what may be regarded as the source of the assessees income, the payment made to compensate for cancellation of the agency agreement is normally a capital receipt. These decisions lay down the tests to be applied in distinguishing a capital receipt from a revenue receipt. With the guidance thus afforded, let us now take a second look at the facts found for answering the question referred. The assessee, possibly, by some fortuitous circumstances discovered Kankar in some place in Jind State. This circumstances gave him an opportunity to bring about an agreement between the State of Jind and Shanti Prasad Jain and when Shanti Prasad Jain transferred his right to a new company, in the formation of which the assessee had a hand, he was promised certain yearly commission on the net profits earned by the company. None of these activities of the assessee can be considered as a business activity but yet he had acquire an income yielding asset as a result of his activities. But the compromise decree destroyed that asset and in its place he was given Rs. 70,000 as compensation. This payment was neither in respect of the services rendered by him in the past nor towards the accumulated commission due to him. It was paid as compensation to him because he gave up his right to get commission in future to which he was entitled under the agreement. It was a price paid for surrendering a valuable right which in our opinion was a capital asset. Therefore that receipt must be considered as a capital receipt. | 0 | 3,164 | 884 | ### Instruction:
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of carrying on their trade; they were not contracts for the disposal of their products or for the engagement of agents or other employees necessary for the conduct of their business; nor were they merely agreements as to how their trading profits when earned should be distributed as between the contracting parties. On the contrary, the cancelled agreements related to the whole structure of the appellants profit making apparatus. They regulated the appellants activities, defined what they might and what they might not do, and affected the whole conduct of their business. I have difficulty in seeing how money laid out to secure, or money received for the cancellation of, so fundamental an organisation of a traders activities can be regarded as an income disbursement or an income receipt. . . . In my opinion that asset, the congeries of rights which the appellants enjoyed under the agreements and which for a price they surrendered was a capital asset." 16. It is now well settled that a distinction has to be drawn between a payment made for past services or discharge of past liabilities and that made for compensation for termination of an income producing asset. The former does not lose its revenue nature but the latter being a payment for destruction of a capital asset, must be considered as capital receipt. 17. The distinction between a capital receipt and a revenue receipt came up for consideration before this Court in Senairam Dongarmal v. Commissioner of Income-tax Assam, 42 ITR 392 = (AIR 1961 SC 1579 ). The assessee therein owned tea estate consisting of tea gardens, factories and other buildings carried on a business of growing and manufacturing tea. The factory and other buildings on the estate were requisitioned for defence purpose by the military authorities. The assessee continued to be in possession of the tea gardens and tended them to preserve the plants but the manufacture of tea was completely stopped. The assessee was paid compensation for the year 1944-45 under the Defence of India rules calculated on the basis of the out-turn of tea that would have been manufactured by the assessee during that period. The question was whether the amounts of compensation were revenue receipts taxable in the hands of the assessee. This court held that the first consideration before holding a receipt to be profits or gains of business within S. 10 of the Income-tax Act was to see if there was a business at all of which it could be said to be income. The primary condition of the application of section 10 was that tax was payable by an assessee under the head "Profits and gains of a business" in respect of a business carried on by him Where an assessee did not carry on business at all the section could not be made applicable and any compensation for requisition of assets that he received could not bear the character of profits of a business. The Court further held that the amounts of compensation received by the assessee were not revenue receipts and did not comprise any element of income. It is true that in that case the Court did not consider whether the income in question could have been considered as income from other sources but the ratio of that decision is that the compensation paid being in respect of sterilisation of an income producing asset, the same should be considered as a capital receipt. 18. The only other decision we need make reference is the decision of this Court in Kettlewell Bullen and Co. Ltd. v. Commissioner of Income-tax, Calcutta 53 ITR 261 = (AIR 1965 SC 65 ). Therein this Court observed that it cannot be said as general rule that what is determinative of the nature of a receipt on the cancellation of a contract of agency or office is extinction or compulsory cessation of the agency or office. Where payment is made to compensate a person for cancellation of a contract which does not affect the trading structure of his business or deprive him of what in substance is his source of income, termination of the contract being a normal incident of the business, and such cancellation leaves him free to carry on his trade though freed from the contract terminated, the receipt is revenue; where by the cancellation of an agency the trading structure of the assessee is impaired, or such cancellation results in loss of what may be regarded as the source of the assessees income, the payment made to compensate for cancellation of the agency agreement is normally a capital receipt. These decisions lay down the tests to be applied in distinguishing a capital receipt from a revenue receipt. With the guidance thus afforded, let us now take a second look at the facts found for answering the question referred. The assessee, possibly, by some fortuitous circumstances discovered Kankar in some place in Jind State. This circumstances gave him an opportunity to bring about an agreement between the State of Jind and Shanti Prasad Jain and when Shanti Prasad Jain transferred his right to a new company, in the formation of which the assessee had a hand, he was promised certain yearly commission on the net profits earned by the company. None of these activities of the assessee can be considered as a business activity but yet he had acquire an income yielding asset as a result of his activities. But the compromise decree destroyed that asset and in its place he was given Rs. 70,000 as compensation. This payment was neither in respect of the services rendered by him in the past nor towards the accumulated commission due to him. It was paid as compensation to him because he gave up his right to get commission in future to which he was entitled under the agreement. It was a price paid for surrendering a valuable right which in our opinion was a capital asset. Therefore that receipt must be considered as a capital receipt.
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10. It was not the case of the Revenue that the assessee was engaged in the business of discovering Kankar or any other mineral. He appears to have found Kankar by mere chance. It is also not the case of the Revenue that the assessee was engaged in the business of bringing about agreements between parties. In fact, it is not the case of the Revenue that the assessee was engaged in any business. There is no evidence to show that he was a business man. His discovery of Kankar as well as his part in bringing about the agreement mentioned earlier were stray acts, possibly occasioned by fortuitous circumstances11. Business as understood in the income-tax law connotes some real, substantial and systematic or organised course of activity or conduct with a set purpose - see the decision of this Court in Narain Swadeshi Weaving Mills v. Commissioner of Excess Profits Tax, 26 ITR 765 = (AIR 1955 SC 176 ). By this statement we do not mean to say that under no circumstance a single transaction cannot amount to a business transaction. But this is not one such. Herein we are dealing with the stray activity of a non-businessman. Hence it is difficult to agree with the Revenue in its contention that the agreement entered into by the assessee with the Dalmia Dadri Cement company should be considered as a business activity12. In the determination of the question whether a particular receipt is capital or an income, it is not possible to lay down any single test as infallible or any single criterion as decisive. The question must ultimately depend on the facts of the particular case and the authorities bearing on the question are valuable only as indicating the matters that have to be taken into account in reaching a decision. That, however, is not to say that the question is one of fact, for these question between capital and income, trading profit or no trading profit, are questions which, though they may depend to a very great extent on the particular facts of each case, do involve conclusions of law to be drawn from those facts16. It is now well settled that a distinction has to be drawn between a payment made for past services or discharge of past liabilities and that made for compensation for termination of an income producing asset. The former does not lose its revenue nature but the latter being a payment for destruction of a capital asset, must be considered as capital receiptIt is true that in that case the Court did not consider whether the income in question could have been considered as income from other sources but the ratio of that decision is that the compensation paid being in respect of sterilisation of an income producing asset, the same should be considered as a capital receiptWhere payment is made to compensate a person for cancellation of a contract which does not affect the trading structure of his business or deprive him of what in substance is his source of income, termination of the contract being a normal incident of the business, and such cancellation leaves him free to carry on his trade though freed from the contract terminated, the receipt is revenue; where by the cancellation of an agency the trading structure of the assessee is impaired, or such cancellation results in loss of what may be regarded as the source of the assessees income, the payment made to compensate for cancellation of the agency agreement is normally a capital receipt. These decisions lay down the tests to be applied in distinguishing a capital receipt from a revenue receipt. With the guidance thus afforded, let us now take a second look at the facts found for answering the question referred. The assessee, possibly, by some fortuitous circumstances discovered Kankar in some place in Jind State. This circumstances gave him an opportunity to bring about an agreement between the State of Jind and Shanti Prasad Jain and when Shanti Prasad Jain transferred his right to a new company, in the formation of which the assessee had a hand, he was promised certain yearly commission on the net profits earned by the company. None of these activities of the assessee can be considered as a business activity but yet he had acquire an income yielding asset as a result of his activities. But the compromise decree destroyed that asset and in its place he was given Rs. 70,000 as compensation. This payment was neither in respect of the services rendered by him in the past nor towards the accumulated commission due to him. It was paid as compensation to him because he gave up his right to get commission in future to which he was entitled under the agreement. It was a price paid for surrendering a valuable right which in our opinion was a capital asset. Therefore that receipt must be considered as a capital receipt.
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U.P. State Road Transport Corporation Vs. Sandeep Kumar Jain | Allahabad High Court mentioned supra in Civil Miscellaneous Writ Petition no. 48624 of 2002 and the judgment of this Court in Civil Appeal Nos. 7305-7306 of 2003 inasmuch as the very route in question that were Dewal-Bijnor was a subject matter.11. It is well settled law and it is reiterated by this Court in the case of U.P. State Road Transport Corporation vs. Omaditya Verma and Ors., 2005 (4) SCC 424 that the private operators cannot be permitted to ply the vehicles on notified/nationalized route unless permitted by the Scheme. The High Court while passing the impugned judgment had not properly appreciated the impact of the judgment of this Court in the case of U.P. State Road Transport Corporation vs. Omaditya Verma and Ors., 2005 9 (4) SCC 424. After construction of Ganga Barrage in the year 1985; after diversion of both the routes i.e. Muzaffarnagar-Bijnore and Meerut-Bijnore, the common strip from Dewal to Bijnore i.e. for a portion of 11 km. is being used. As the route has become a notified route pursuant to the Nationalization Scheme dated 05.11.1997, and since it is a settled principle of law that no private operators can be permitted to operate/ply vehicles on the notified route except as permitted by the Scheme, the respondents cannot be permitted to ply the vehicles on the notified route.12. It would also be relevant to note the conclusions reached by the Constitution bench in the Case of G. T. Venkataswamy Reddy vs State Transport Authority & Ors. (2016) 8 SCC 402 which are as under:“Having analysed the above referred to decisions and the statutory provisions, before rendering our final answer to the question referred to this Constitution Bench, it will be worthwhile to make a reference and list out the legal propositions which we are able to discern based on our detailed consideration in this reference:(a) Chapter IV-A supersedes any inconsistent provisions in Chapter IV.(b) The policy of the Legislature is clear from Section 68-C that the State Transport Undertaking may initiate a scheme for the purpose of providing an efficient, adequate, economical and properly coordinated road transport service to be run and operated by the State Transport Undertaking in relation to any area or route or portion thereof. It may do so if it is necessary in the public interest.(c) Grant of variation under Section 57(8) will be as good as grant of a new permit.(d) Section 57(8) is controlled by Section 68FF falling under Chapter IV-A, by virtue of the superseding effect of Section 68-B also falling under Chapter IVA.(e) Once a scheme formulated under Section 68-D gets approved under 68-D(3) of Chapter IV-A, then all the permits in the route / area covered by the scheme will get frozen by virtue of operation of Section 68-FF.(f) The effect of Section 68-FF can be altered / modified / cancelled only in the manner as provided for under Section 68-E and in no other manner.(g) By virtue of the above, either a grant of a new permit or the variation of an existing permit of private operator cannot be ordered in respect of an area or route covered by an Approved Scheme.(h) Increase in the number of trips or vehicles which were being run under the existing exempted permit under a Scheme will amount to grant of a new permit to operate one more Stage Carriage which is not permissible under Section 68-FF.(i) The proposition of law, laid down by this Court in ‘JAYARAM’ impliedly stood overruled in ‘ADARSH TRAVELS’.(j) The economy and coordination, two of the factors, which govern the Approved Scheme, will be seriously infringed if the variation is to be granted of the existing permit condition.(k) Even if there is an interstate agreement under Section 63 of the Act for increasing the number of trips, such an agreement cannot override the provisions of Chapter IV-A by virtue of Section 68B of the Act. Section 63 being in Chapter IV of the Act, the Scheme approved under Chapter IV-A will prevail over it.(l) The Approved Scheme will exclude the operation of other stage carriage services on the Route / Area covered by the Scheme, except those whose names are mentioned in the Scheme and to the extent to which such exception is allowed.(m) The provisions in Chapter IV-A are devised to override the provisions of Chapter IV and it is expressly so enacted, the provisions of Chapter IV-A are clear and complete regarding the manner and effect of the “takeover” of the operation of a road transport service by the State Transport Undertaking in relation to any Area or Route or portion thereof (ADARSH TRAVELS).(n) A necessary consequence of those provisions is that no private operator can operate his vehicle on any part or portion of a notified area or notified route unless authorized so to do by the term of the scheme itself. He may not operate on any part or portion of the notified Route or Area on the mere ground that the permit as originally granted to him covered the notified Route or Area (ADARSH TRAVELS).Having regard to the above propositions, which we are able to arrive at, we hold that the judgment reported in Karnataka State Road Transport Corporation, Bangalore Vs. B.A. Jayaram and others - 1984 (Supp) SCC 244 is no longer a good law and the decision reported in Pandiyan Roadways Corporation Ltd. Vs. M.A. Egappan - (1987) 2 SCC 47 stands approved which is in tune with the Constitution Bench decision reported in Adarsh Travels Bus Service and another Vs. State of U.P. and others - (1985) 4 SCC 557 and the observations made in R.Raghuram Vs. P. Jayarama Naidu and others – 1990 (supp) SCC 361 stands approved.”Aforementioned conclusions are applicable to the facts of this case. The Constitution bench while coming to the aforementioned conclusions has considered various judgments on the point including in the case of Adarsh Travels Bus Service vs State of U.P. and Others (1985) 4 SCC 557 (Constitution Bench Judgment) etc. | 1[ds]The Regional Transport Authority had rightly cancelled the permits issued on the ground that the route Dewal to Bijnore is a notified route.10. The Allahabad High Court in the aforementioned judgment in detail on facts had dealt with as to how the private operators were not entitled to ply their vehicles on the notified route i.e. 11h lying betweenDewal to Bijnor. Though the respondents herein were existing operators they cannot be shown leniency in view of the fact that the route over which they were plying earlier did not include Dewal to Bijnor. Since they have now been plying the vehicles on the notified routethey cannot be permitted to do so. Though the judgment of the Division Bench of Allahabad High Court mentioned supra is confirmed by this Court in Civil Appeal Nos.of 2003 on different grounds, the fact remains that the judgment of the Allahabad High Court stood confirmed. Hence, in our opinion, the State Transport Authority is justified in relying upon the judgment of Allahabad High Court mentioned supra in Civil Miscellaneous Writ Petition no. 48624 of 2002 and the judgment of this Court in Civil Appeal Nos.of 2003 inasmuch as the very route in question that werewas a subject matter.11. It is well settled law and it is reiterated by this Court in the case of U.P. State Road Transport Corporation vs. Omaditya Verma and Ors., 2005 (4) SCC 424 that the private operators cannot be permitted to ply the vehicles on notified/nationalized route unless permitted by the Scheme. The High Court while passing the impugned judgment had not properly appreciated the impact of the judgment of this Court in the case of U.P. State Road Transport Corporation vs. Omaditya Verma and Ors., 2005 9 (4) SCC 424. After construction of Ganga Barrage in the year 1985; after diversion of both the routes i.e.e, the common strip from Dewal to Bijnore i.e. for a portion of 11 km. is being used. As the route has become a notified route pursuant to the Nationalization Scheme dated 05.11.1997, and since it is a settled principle of law that no private operators can be permitted to operate/ply vehicles on the notified route except as permitted by the Scheme, the respondents cannot be permitted to ply the vehicles on the notifiedconclusions are applicable to the facts of this case. The Constitution bench while coming to the aforementioned conclusions has considered various judgments on the point including in the case of Adarsh Travels Bus Service vs State of U.P. and Others (1985) 4 SCC 557 (Constitution Bench Judgment) etc. | 1 | 2,641 | 470 | ### Instruction:
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Allahabad High Court mentioned supra in Civil Miscellaneous Writ Petition no. 48624 of 2002 and the judgment of this Court in Civil Appeal Nos. 7305-7306 of 2003 inasmuch as the very route in question that were Dewal-Bijnor was a subject matter.11. It is well settled law and it is reiterated by this Court in the case of U.P. State Road Transport Corporation vs. Omaditya Verma and Ors., 2005 (4) SCC 424 that the private operators cannot be permitted to ply the vehicles on notified/nationalized route unless permitted by the Scheme. The High Court while passing the impugned judgment had not properly appreciated the impact of the judgment of this Court in the case of U.P. State Road Transport Corporation vs. Omaditya Verma and Ors., 2005 9 (4) SCC 424. After construction of Ganga Barrage in the year 1985; after diversion of both the routes i.e. Muzaffarnagar-Bijnore and Meerut-Bijnore, the common strip from Dewal to Bijnore i.e. for a portion of 11 km. is being used. As the route has become a notified route pursuant to the Nationalization Scheme dated 05.11.1997, and since it is a settled principle of law that no private operators can be permitted to operate/ply vehicles on the notified route except as permitted by the Scheme, the respondents cannot be permitted to ply the vehicles on the notified route.12. It would also be relevant to note the conclusions reached by the Constitution bench in the Case of G. T. Venkataswamy Reddy vs State Transport Authority & Ors. (2016) 8 SCC 402 which are as under:“Having analysed the above referred to decisions and the statutory provisions, before rendering our final answer to the question referred to this Constitution Bench, it will be worthwhile to make a reference and list out the legal propositions which we are able to discern based on our detailed consideration in this reference:(a) Chapter IV-A supersedes any inconsistent provisions in Chapter IV.(b) The policy of the Legislature is clear from Section 68-C that the State Transport Undertaking may initiate a scheme for the purpose of providing an efficient, adequate, economical and properly coordinated road transport service to be run and operated by the State Transport Undertaking in relation to any area or route or portion thereof. It may do so if it is necessary in the public interest.(c) Grant of variation under Section 57(8) will be as good as grant of a new permit.(d) Section 57(8) is controlled by Section 68FF falling under Chapter IV-A, by virtue of the superseding effect of Section 68-B also falling under Chapter IVA.(e) Once a scheme formulated under Section 68-D gets approved under 68-D(3) of Chapter IV-A, then all the permits in the route / area covered by the scheme will get frozen by virtue of operation of Section 68-FF.(f) The effect of Section 68-FF can be altered / modified / cancelled only in the manner as provided for under Section 68-E and in no other manner.(g) By virtue of the above, either a grant of a new permit or the variation of an existing permit of private operator cannot be ordered in respect of an area or route covered by an Approved Scheme.(h) Increase in the number of trips or vehicles which were being run under the existing exempted permit under a Scheme will amount to grant of a new permit to operate one more Stage Carriage which is not permissible under Section 68-FF.(i) The proposition of law, laid down by this Court in ‘JAYARAM’ impliedly stood overruled in ‘ADARSH TRAVELS’.(j) The economy and coordination, two of the factors, which govern the Approved Scheme, will be seriously infringed if the variation is to be granted of the existing permit condition.(k) Even if there is an interstate agreement under Section 63 of the Act for increasing the number of trips, such an agreement cannot override the provisions of Chapter IV-A by virtue of Section 68B of the Act. Section 63 being in Chapter IV of the Act, the Scheme approved under Chapter IV-A will prevail over it.(l) The Approved Scheme will exclude the operation of other stage carriage services on the Route / Area covered by the Scheme, except those whose names are mentioned in the Scheme and to the extent to which such exception is allowed.(m) The provisions in Chapter IV-A are devised to override the provisions of Chapter IV and it is expressly so enacted, the provisions of Chapter IV-A are clear and complete regarding the manner and effect of the “takeover” of the operation of a road transport service by the State Transport Undertaking in relation to any Area or Route or portion thereof (ADARSH TRAVELS).(n) A necessary consequence of those provisions is that no private operator can operate his vehicle on any part or portion of a notified area or notified route unless authorized so to do by the term of the scheme itself. He may not operate on any part or portion of the notified Route or Area on the mere ground that the permit as originally granted to him covered the notified Route or Area (ADARSH TRAVELS).Having regard to the above propositions, which we are able to arrive at, we hold that the judgment reported in Karnataka State Road Transport Corporation, Bangalore Vs. B.A. Jayaram and others - 1984 (Supp) SCC 244 is no longer a good law and the decision reported in Pandiyan Roadways Corporation Ltd. Vs. M.A. Egappan - (1987) 2 SCC 47 stands approved which is in tune with the Constitution Bench decision reported in Adarsh Travels Bus Service and another Vs. State of U.P. and others - (1985) 4 SCC 557 and the observations made in R.Raghuram Vs. P. Jayarama Naidu and others – 1990 (supp) SCC 361 stands approved.”Aforementioned conclusions are applicable to the facts of this case. The Constitution bench while coming to the aforementioned conclusions has considered various judgments on the point including in the case of Adarsh Travels Bus Service vs State of U.P. and Others (1985) 4 SCC 557 (Constitution Bench Judgment) etc.
### Response:
1
### Explanation:
The Regional Transport Authority had rightly cancelled the permits issued on the ground that the route Dewal to Bijnore is a notified route.10. The Allahabad High Court in the aforementioned judgment in detail on facts had dealt with as to how the private operators were not entitled to ply their vehicles on the notified route i.e. 11h lying betweenDewal to Bijnor. Though the respondents herein were existing operators they cannot be shown leniency in view of the fact that the route over which they were plying earlier did not include Dewal to Bijnor. Since they have now been plying the vehicles on the notified routethey cannot be permitted to do so. Though the judgment of the Division Bench of Allahabad High Court mentioned supra is confirmed by this Court in Civil Appeal Nos.of 2003 on different grounds, the fact remains that the judgment of the Allahabad High Court stood confirmed. Hence, in our opinion, the State Transport Authority is justified in relying upon the judgment of Allahabad High Court mentioned supra in Civil Miscellaneous Writ Petition no. 48624 of 2002 and the judgment of this Court in Civil Appeal Nos.of 2003 inasmuch as the very route in question that werewas a subject matter.11. It is well settled law and it is reiterated by this Court in the case of U.P. State Road Transport Corporation vs. Omaditya Verma and Ors., 2005 (4) SCC 424 that the private operators cannot be permitted to ply the vehicles on notified/nationalized route unless permitted by the Scheme. The High Court while passing the impugned judgment had not properly appreciated the impact of the judgment of this Court in the case of U.P. State Road Transport Corporation vs. Omaditya Verma and Ors., 2005 9 (4) SCC 424. After construction of Ganga Barrage in the year 1985; after diversion of both the routes i.e.e, the common strip from Dewal to Bijnore i.e. for a portion of 11 km. is being used. As the route has become a notified route pursuant to the Nationalization Scheme dated 05.11.1997, and since it is a settled principle of law that no private operators can be permitted to operate/ply vehicles on the notified route except as permitted by the Scheme, the respondents cannot be permitted to ply the vehicles on the notifiedconclusions are applicable to the facts of this case. The Constitution bench while coming to the aforementioned conclusions has considered various judgments on the point including in the case of Adarsh Travels Bus Service vs State of U.P. and Others (1985) 4 SCC 557 (Constitution Bench Judgment) etc.
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T.N. Godavaraman Thirumulpad Vs. Union of India & Others | from aluminium segment is Rs. 455 crores (See: website of SIIL). We do not have the list of assets of M/s. VAL. Lastly, as stated above, M/s. VAL is a joint venture partner with OMC Ltd. Nothing prevents M/s. VAL from terminating joint venture agreement. We do not have even the Accounts of M/s. VAL. In the circumstances keeping in mind the totality of the above factors, we are not inclined to clear the Project. Suggested Rehabilitation Package: 13. Liberty is, however, given to M/s. SIIL to move this Court if they are agree to comply with the following modalities as suggested by this Court. It is made clear that such an application will not be entertained if made by M/s. VAL or by Vedanta Resources. (i) State of Orissa shall float a Special Purpose Vehicle (SPV) for scheduled area development of Lanjigarh Project in which the stake-holders shall be State of Orissa, OMC Ltd. and M/s. SIIL. Such SPV shall be incorporated under the Companies Act, 1956. The Accounts of SPC will be prepared by the Statutory auditors of OMC Ltd. and they shall be audited by the Auditor General for State of Orissa every year. M/s. SIIL will deposit, every year commencing from 1.4.07, 5% of its annual profits before tax and interest from Lanjigarh Project or Rs. 10 crores whichever is higher for Scheduled Area Development with the said SPV and it shall be the duty of the said SPV to account for the expenses each year. The annual report of SPV shall be submitted to CEC every year. If CEC finds non-utilisation or mis-utilisation of funds the same shall be brought to the notice of this Court. While calculating annual profits before tax and interest M/s. SIIL shall do so on the basis of the market value of the material which is sold by OMC Ltd. M/s. SIIL or its nominee.(ii) In addition to what is stated above, M/s. SIIL shall pay NPV of Rs.55 crores and Rs.50.53 crores towards Wildlife Management Plan for Conservation and Management of Wildlife around Lanjigarh bauxite mine and Rs. 12.20 crores towards tribal development. In addition, M/s. SIIL shall also bear expenses towards compensatory afforestation.(iii) A statement shall be filed by M/s. SIIL with CEC within eight weeks from today stating number of persons who shall be observed on permanent basis in M/s. SIIL including land-losers. They shall give categories in which they would be permanently absorbed. The list would also show particulars of persons who would be employed by the contractors of M/s. SIIL and the period for which they would be employed.(iv) The state Government has the following suggestions on this issue:-1. The user agency shall undertake demarcation of the lease area on the ground using four feet high cement concrete pillars with serial number, forward and back bearings and distance from pillar to pillar.2. The user agency shall make arrangements for mutation and transfer of equivalent non-forest land identified for compensatory afforestation to the ownership of the State Forest Department.3. The State Forest Department will take up compensatory afforestation at project cost with suitable indigenous species and will declare the said area identified for compensatory afforstation as "protected forest" under the Orissa Forest Act 1972 for the purpose of management.4. The user agency shall undertake Rehabilitation of Project affected families, if any as per the Orissa Rehabilitation and Resettlement Policy 2006.5. The user agency shall undertake Phased reclamation of mined out area. All overburden should be used for back filling and reclamation of the mined out areas.6. The user agency shall undertake fencing of the safety zone area and endeavour for protection as well as regeneration of the said area. It shall deposit funds with the State Forest Deptt. for the protection and regeneration of the safety zone area.7. Adequate soil conservation measures shall be undertaken by the Lessee on the overburden dumps to prevent contamination of steam flow.8. The user agency should undertake comprehensive study on hydrogeology of the area and the impact of mining on the surrounding water quality and stream flow at regular interval and take effective measures so as to maintain the pre mining water condition as far as possible.9. The user agency should undertake a comprehensive study of the wild life available in the area in association with institutes of repute like Wild Life Institute of India, Dehradun, Forest Research Institute, Dehradun etc. and shall prepare a site specific comprehensive Wild Life Management plan for conservation and management of the wild life in the project impact are under the guidance of Chief Wild Life Warden of the State.10. The user agency shall deposit the NPV of the forest land sought for diversion for undertaking mining operations.11. The user agency shall prepare a comprehensive plan for the development of tribals in the project impact area taking into consideration their requirements for health, education, communication, recreation, livelihood and cultural lifestyle.12. As per the policy of the State Government, the user agency shall earmark 5% of the net profit accrued in the project to be spent for the development of health, education, communication, irrigation and agriculture of the said schedule area within a radius of 50 Kms.13. Controlled Blasting may be used only in exigencies wherever needed to minimize the impact of noise on wild life of the area.14. The User Agency shall undertake development of greenery by way of plantation of suitable indigenous species in all vacant areas within the project.15. Trees shall be felled from the diverted area only when it is necessary with the strict supervision of the State Deptt. at the cost of the project.16. The forest land diverted shall be non transferable. Whenever the forest land is not required, the same shall be surrendered to the State Forest Deptt. under intimation to Ministry of Environment and Forests, Government of India. If M/s. SIIL, State of Orissa and OMC Ltd. jointly agree to comply with the above Rehabilitation Package, this Court may consider granting of clearance to the Project. CONCLUSION 14. | 0[ds]We do not wish to express any opinion on the correctness of the said Report. However, we cannot take the risk of handing over an important asset into the hands of the company unless we are satisfied about its credibility.As stated above, under the Agreement between OMC Ltd. and M/s. VAL,the name of the contractor is M/s.VAL. The Agreement states that M/s. VAL is the subsidiary of M/s. SIIL. However, the Financial Statements annexed to the affidavit of M/s. SIIL dated 2.11.07 shows that M/s. VAL is an associate company and not a subsidiary of M/s. SIIL (See: page 31 of the affidavit filed by M/s. SIIL). On going through the Financial Statements of M/s. SIIL, we find that the operating profits from aluminium segment is negligible for the years ending on 31.3.06 and 31.3.07 (See: page 65 of the affidavit filed by M/s. SIIL). However, under Segment Reporting (in the Audited Financial Statement) the income from aluminium segment is Rs. 455 crores (See: website of SIIL). We do not have the list of assets of M/s. VAL. Lastly, as stated above, M/s. VAL is a joint venture partner with OMC Ltd. Nothing prevents M/s. VAL from terminating joint venture agreement. We do not have even the Accounts of M/s. VAL. In the circumstances keeping in mind the totality of the above factors, we are not inclined to clear theis, however, given to M/s. SIIL to move this Court if they are agree to comply with the following modalities as suggested by this Court. It is made clear that such an application will not be entertained if made by M/s. VAL or by VedantaState of Orissa shall float a Special Purpose Vehicle (SPV) for scheduled area development of Lanjigarh Project in which theshall be State of Orissa, OMC Ltd. and M/s. SIIL. Such SPV shall be incorporated under the Companies Act, 1956. The Accounts of SPC will be prepared by the Statutory auditors of OMC Ltd. and they shall be audited by the Auditor General for State of Orissa every year. M/s. SIIL will deposit, every year commencing from 1.4.07, 5% of its annual profits before tax and interest from Lanjigarh Project or Rs. 10 crores whichever is higher for Scheduled Area Development with the said SPV and it shall be the duty of the said SPV to account for the expenses each year. The annual report of SPV shall be submitted to CEC every year. If CEC findson of funds the same shall be brought to the notice of this Court. While calculating annual profits before tax and interest M/s. SIIL shall do so on the basis of the market value of the material which is sold by OMC Ltd. M/s. SIIL or its nominee.(ii) In addition to what is stated above, M/s. SIIL shall pay NPV of Rs.55 crores and Rs.50.53 crores towards Wildlife Management Plan for Conservation and Management of Wildlife around Lanjigarh bauxite mine and Rs. 12.20 crores towards tribal development. In addition, M/s. SIIL shall also bear expenses towards compensatory afforestation.(iii) A statement shall be filed by M/s. SIIL with CEC within eight weeks from today stating number of persons who shall be observed on permanent basis in M/s. SIIL includingThey shall give categories in which they would be permanently absorbed. The list would also show particulars of persons who would be employed by the contractors of M/s. SIIL and the period for which they would be employed.(iv) The state Government has the following suggestions on thisThe user agency shall undertake demarcation of the lease area on the ground using four feet high cement concrete pillars with serial number, forward and back bearings and distance from pillar to pillar.2. The user agency shall make arrangements for mutation and transfer of equivalentland identified for compensatory afforestation to the ownership of the State Forest Department.3. The State Forest Department will take up compensatory afforestation at project cost with suitable indigenous species and will declare the said area identified for compensatory afforstation as "protected forest" under the Orissa Forest Act 1972 for the purpose of management.4. The user agency shall undertake Rehabilitation of Project affected families, if any as per the Orissa Rehabilitation and Resettlement Policy 2006.5. The user agency shall undertake Phased reclamation of mined out area. All overburden should be used for back filling and reclamation of the mined out areas.6. The user agency shall undertake fencing of the safety zone area and endeavour for protection as well as regeneration of the said area. It shall deposit funds with the State Forest Deptt. for the protection and regeneration of the safety zone area.7. Adequate soil conservation measures shall be undertaken by the Lessee on the overburden dumps to prevent contamination of steam flow.8. The user agency should undertake comprehensive study on hydrogeology of the area and the impact of mining on the surrounding water quality and stream flow at regular interval and take effective measures so as to maintain the pre mining water condition as far as possible.9. The user agency should undertake a comprehensive study of the wild life available in the area in association with institutes of repute like Wild Life Institute of India, Dehradun, Forest Research Institute, Dehradun etc. and shall prepare a site specific comprehensive Wild Life Management plan for conservation and management of the wild life in the project impact are under the guidance of Chief Wild Life Warden of the State.10. The user agency shall deposit the NPV of the forest land sought for diversion for undertaking mining operations.11. The user agency shall prepare a comprehensive plan for the development of tribals in the project impact area taking into consideration their requirements for health, education, communication, recreation, livelihood and cultural lifestyle.12. As per the policy of the State Government, the user agency shall earmark 5% of the net profit accrued in the project to be spent for the development of health, education, communication, irrigation and agriculture of the said schedule area within a radius of 50 Kms.13. Controlled Blasting may be used only in exigencies wherever needed to minimize the impact of noise on wild life of the area.14. The User Agency shall undertake development of greenery by way of plantation of suitable indigenous species in all vacant areas within the project.15. Trees shall be felled from the diverted area only when it is necessary with the strict supervision of the State Deptt. at the cost of the project.16. The forest land diverted shall be non transferable. Whenever the forest land is not required, the same shall be surrendered to the State Forest Deptt. under intimation to Ministry of Environment and Forests, Government of India. If M/s. SIIL, State of Orissa and OMC Ltd. jointly agree to comply with the above Rehabilitation Package, this Court may consider granting of clearance to the Project. | 0 | 2,530 | 1,273 | ### 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:
from aluminium segment is Rs. 455 crores (See: website of SIIL). We do not have the list of assets of M/s. VAL. Lastly, as stated above, M/s. VAL is a joint venture partner with OMC Ltd. Nothing prevents M/s. VAL from terminating joint venture agreement. We do not have even the Accounts of M/s. VAL. In the circumstances keeping in mind the totality of the above factors, we are not inclined to clear the Project. Suggested Rehabilitation Package: 13. Liberty is, however, given to M/s. SIIL to move this Court if they are agree to comply with the following modalities as suggested by this Court. It is made clear that such an application will not be entertained if made by M/s. VAL or by Vedanta Resources. (i) State of Orissa shall float a Special Purpose Vehicle (SPV) for scheduled area development of Lanjigarh Project in which the stake-holders shall be State of Orissa, OMC Ltd. and M/s. SIIL. Such SPV shall be incorporated under the Companies Act, 1956. The Accounts of SPC will be prepared by the Statutory auditors of OMC Ltd. and they shall be audited by the Auditor General for State of Orissa every year. M/s. SIIL will deposit, every year commencing from 1.4.07, 5% of its annual profits before tax and interest from Lanjigarh Project or Rs. 10 crores whichever is higher for Scheduled Area Development with the said SPV and it shall be the duty of the said SPV to account for the expenses each year. The annual report of SPV shall be submitted to CEC every year. If CEC finds non-utilisation or mis-utilisation of funds the same shall be brought to the notice of this Court. While calculating annual profits before tax and interest M/s. SIIL shall do so on the basis of the market value of the material which is sold by OMC Ltd. M/s. SIIL or its nominee.(ii) In addition to what is stated above, M/s. SIIL shall pay NPV of Rs.55 crores and Rs.50.53 crores towards Wildlife Management Plan for Conservation and Management of Wildlife around Lanjigarh bauxite mine and Rs. 12.20 crores towards tribal development. In addition, M/s. SIIL shall also bear expenses towards compensatory afforestation.(iii) A statement shall be filed by M/s. SIIL with CEC within eight weeks from today stating number of persons who shall be observed on permanent basis in M/s. SIIL including land-losers. They shall give categories in which they would be permanently absorbed. The list would also show particulars of persons who would be employed by the contractors of M/s. SIIL and the period for which they would be employed.(iv) The state Government has the following suggestions on this issue:-1. The user agency shall undertake demarcation of the lease area on the ground using four feet high cement concrete pillars with serial number, forward and back bearings and distance from pillar to pillar.2. The user agency shall make arrangements for mutation and transfer of equivalent non-forest land identified for compensatory afforestation to the ownership of the State Forest Department.3. The State Forest Department will take up compensatory afforestation at project cost with suitable indigenous species and will declare the said area identified for compensatory afforstation as "protected forest" under the Orissa Forest Act 1972 for the purpose of management.4. The user agency shall undertake Rehabilitation of Project affected families, if any as per the Orissa Rehabilitation and Resettlement Policy 2006.5. The user agency shall undertake Phased reclamation of mined out area. All overburden should be used for back filling and reclamation of the mined out areas.6. The user agency shall undertake fencing of the safety zone area and endeavour for protection as well as regeneration of the said area. It shall deposit funds with the State Forest Deptt. for the protection and regeneration of the safety zone area.7. Adequate soil conservation measures shall be undertaken by the Lessee on the overburden dumps to prevent contamination of steam flow.8. The user agency should undertake comprehensive study on hydrogeology of the area and the impact of mining on the surrounding water quality and stream flow at regular interval and take effective measures so as to maintain the pre mining water condition as far as possible.9. The user agency should undertake a comprehensive study of the wild life available in the area in association with institutes of repute like Wild Life Institute of India, Dehradun, Forest Research Institute, Dehradun etc. and shall prepare a site specific comprehensive Wild Life Management plan for conservation and management of the wild life in the project impact are under the guidance of Chief Wild Life Warden of the State.10. The user agency shall deposit the NPV of the forest land sought for diversion for undertaking mining operations.11. The user agency shall prepare a comprehensive plan for the development of tribals in the project impact area taking into consideration their requirements for health, education, communication, recreation, livelihood and cultural lifestyle.12. As per the policy of the State Government, the user agency shall earmark 5% of the net profit accrued in the project to be spent for the development of health, education, communication, irrigation and agriculture of the said schedule area within a radius of 50 Kms.13. Controlled Blasting may be used only in exigencies wherever needed to minimize the impact of noise on wild life of the area.14. The User Agency shall undertake development of greenery by way of plantation of suitable indigenous species in all vacant areas within the project.15. Trees shall be felled from the diverted area only when it is necessary with the strict supervision of the State Deptt. at the cost of the project.16. The forest land diverted shall be non transferable. Whenever the forest land is not required, the same shall be surrendered to the State Forest Deptt. under intimation to Ministry of Environment and Forests, Government of India. If M/s. SIIL, State of Orissa and OMC Ltd. jointly agree to comply with the above Rehabilitation Package, this Court may consider granting of clearance to the Project. CONCLUSION 14.
### Response:
0
### Explanation:
and 31.3.07 (See: page 65 of the affidavit filed by M/s. SIIL). However, under Segment Reporting (in the Audited Financial Statement) the income from aluminium segment is Rs. 455 crores (See: website of SIIL). We do not have the list of assets of M/s. VAL. Lastly, as stated above, M/s. VAL is a joint venture partner with OMC Ltd. Nothing prevents M/s. VAL from terminating joint venture agreement. We do not have even the Accounts of M/s. VAL. In the circumstances keeping in mind the totality of the above factors, we are not inclined to clear theis, however, given to M/s. SIIL to move this Court if they are agree to comply with the following modalities as suggested by this Court. It is made clear that such an application will not be entertained if made by M/s. VAL or by VedantaState of Orissa shall float a Special Purpose Vehicle (SPV) for scheduled area development of Lanjigarh Project in which theshall be State of Orissa, OMC Ltd. and M/s. SIIL. Such SPV shall be incorporated under the Companies Act, 1956. The Accounts of SPC will be prepared by the Statutory auditors of OMC Ltd. and they shall be audited by the Auditor General for State of Orissa every year. M/s. SIIL will deposit, every year commencing from 1.4.07, 5% of its annual profits before tax and interest from Lanjigarh Project or Rs. 10 crores whichever is higher for Scheduled Area Development with the said SPV and it shall be the duty of the said SPV to account for the expenses each year. The annual report of SPV shall be submitted to CEC every year. If CEC findson of funds the same shall be brought to the notice of this Court. While calculating annual profits before tax and interest M/s. SIIL shall do so on the basis of the market value of the material which is sold by OMC Ltd. M/s. SIIL or its nominee.(ii) In addition to what is stated above, M/s. SIIL shall pay NPV of Rs.55 crores and Rs.50.53 crores towards Wildlife Management Plan for Conservation and Management of Wildlife around Lanjigarh bauxite mine and Rs. 12.20 crores towards tribal development. In addition, M/s. SIIL shall also bear expenses towards compensatory afforestation.(iii) A statement shall be filed by M/s. SIIL with CEC within eight weeks from today stating number of persons who shall be observed on permanent basis in M/s. SIIL includingThey shall give categories in which they would be permanently absorbed. The list would also show particulars of persons who would be employed by the contractors of M/s. SIIL and the period for which they would be employed.(iv) The state Government has the following suggestions on thisThe user agency shall undertake demarcation of the lease area on the ground using four feet high cement concrete pillars with serial number, forward and back bearings and distance from pillar to pillar.2. The user agency shall make arrangements for mutation and transfer of equivalentland identified for compensatory afforestation to the ownership of the State Forest Department.3. The State Forest Department will take up compensatory afforestation at project cost with suitable indigenous species and will declare the said area identified for compensatory afforstation as "protected forest" under the Orissa Forest Act 1972 for the purpose of management.4. The user agency shall undertake Rehabilitation of Project affected families, if any as per the Orissa Rehabilitation and Resettlement Policy 2006.5. The user agency shall undertake Phased reclamation of mined out area. All overburden should be used for back filling and reclamation of the mined out areas.6. The user agency shall undertake fencing of the safety zone area and endeavour for protection as well as regeneration of the said area. It shall deposit funds with the State Forest Deptt. for the protection and regeneration of the safety zone area.7. Adequate soil conservation measures shall be undertaken by the Lessee on the overburden dumps to prevent contamination of steam flow.8. The user agency should undertake comprehensive study on hydrogeology of the area and the impact of mining on the surrounding water quality and stream flow at regular interval and take effective measures so as to maintain the pre mining water condition as far as possible.9. The user agency should undertake a comprehensive study of the wild life available in the area in association with institutes of repute like Wild Life Institute of India, Dehradun, Forest Research Institute, Dehradun etc. and shall prepare a site specific comprehensive Wild Life Management plan for conservation and management of the wild life in the project impact are under the guidance of Chief Wild Life Warden of the State.10. The user agency shall deposit the NPV of the forest land sought for diversion for undertaking mining operations.11. The user agency shall prepare a comprehensive plan for the development of tribals in the project impact area taking into consideration their requirements for health, education, communication, recreation, livelihood and cultural lifestyle.12. As per the policy of the State Government, the user agency shall earmark 5% of the net profit accrued in the project to be spent for the development of health, education, communication, irrigation and agriculture of the said schedule area within a radius of 50 Kms.13. Controlled Blasting may be used only in exigencies wherever needed to minimize the impact of noise on wild life of the area.14. The User Agency shall undertake development of greenery by way of plantation of suitable indigenous species in all vacant areas within the project.15. Trees shall be felled from the diverted area only when it is necessary with the strict supervision of the State Deptt. at the cost of the project.16. The forest land diverted shall be non transferable. Whenever the forest land is not required, the same shall be surrendered to the State Forest Deptt. under intimation to Ministry of Environment and Forests, Government of India. If M/s. SIIL, State of Orissa and OMC Ltd. jointly agree to comply with the above Rehabilitation Package, this Court may consider granting of clearance to the Project.
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Pannalal Vs. Dy. Commissioner, Bhandara & Another Etc | that the Dispensary Fund Committees have denied that Mr. Tiwari had entered into contracts on their behalf or that the Committees did not pass any resolution authorizing the Deputy Commissioner to enter into agreement. We consider that the evidence of Mr. Tiwari is in consonance with circumstances of this case. This position is also clear from the evidence of Dr. Kalay, Civil Surgeon, Bhandara to the effect that the Deputy Commissioner is the administrative head of all the departments of the district, and in his capacity as such is the person looking after the affairs of these hospitals as well, and that the Dispensary Fund Committee becomes the owner of the hospital after it is constructed and handed over........... We are unable to agree with the High Court that no reliance can be placed on Mr. Tiwaris statement on the ground that he was interested in safeguarding the interest of the Government by saying that he did not enter into the agreements on behalf of the Government. The interest of the Government is very well safeguarded as the contracts do not purport to have been entered into on behalf of the Government. Nor has the Deputy Commissioner been authorised under Section 175 of the Government of India Act to enter into contracts of this character on behalf of the Government. The High Court itself has remarked that it is conceivable that the Deputy Commissioner took the entire responsibility on his own shoulder and went on with the work in an informal way. It would be fair to hold that Mr. Tiwari entered into the contracts on behalf of the Dispensary Fund Committees. As regards the Municipal Committee of Gondia, statutes usually lay down the formalities to be observed in entering into contracts on their behalf and there is nothing to show that these formalities were observed. The contract may not, therefore, be binding on it qua contract.5. But even apart from contract we have no hesitation in holding that in all the three cases liability under Section 70 of the Contract Act clearly arises. We do not understand why the High Court thinks that the Dispensary Fund Committees cannot be regarded as the owners or beneficiaries of the buildings of the hospitals. And more curiously the High Court has said that it is the public that are the beneficiaries. The buildings on construction belong to the Dispensary Fund Committees and the Municipal Committee and they have received benefit in so far as they are the owners.6. It is hardly necessary to refer to the authorities in support of this position. But we may refer to the decision of this Court in State of West Bengal v. B. K. Mondal, 1962 Supp (1) SCR 876 = (AIR 1962 SC 779 ). There a contract to put up certain godowns for the use of the Civil Supplies Department of the State of Bengal was held unenforceable. The godowns were accepted and used by the department concerned. It was held that merely because the contract was illegal it does not follow that the contractor has done something which is not lawful.This Court pointed out that the real basis of the liability under Section 70 is the fact that the person for whom the work has been done, has accepted the work and has received the benefit thereunder, and that what Section 70 prevents is unjust enrichment and it applies as much to individuals as to corporations and Government. There is no doubt that in this case the Dispensary Fund Committees have accepted the buildings and they have also been accepted by the State of Maharashtra when they took over the hospitals with their buildings which the appellant had constructed. Thus, the Dispensary Fund Committee in two cases and the Municipal Committee of Gondia in the third have received the benefit and the State of Maharashtra, having taken over the two hospitals became liable to pay the suit amount as successors in interest of the Dispensary Fund Committees.7. It is true, as the learned Judges of the High Court pointed out that real basis for a claim under Section 70 is not the terms of the contract but the quantum of the benefit actually derived. In the absence of any other material the contract between the parties provides a useful basis for calculating that benefit. It has not been alleged on behalf of the defendants that the rates agreed upon and later enhanced were not fair rates or that anybody else would have undertaken the work cheaper. The only reasonable way of arriving at the value of the benefit derived by the Government is on the basis of the rates agreed upon (including future increases in rates by PWD) and that would be a fair indication of the value of the work.We may in this connection refer to the decision of this Court in Piloo Sidhwa v. Municipal Corpn. (1970) 3 SCR 415 = (AIR 1970 SC 1201 ) where the market price was taken as a proper indication of compensation under Section 70 and interest also was awarded.8. Mr. Phadke appearing on behalf of the appellant did not want any relief against defendants other than the State of Maharashtra in Appeals Nos. 1072/67 and 1073/67 and the Municipal Committee of Gondia in Appeal No. 1071/67. The amount mentioned by us earlier would have had to carry interest at the rate of 6 per cent from the date of plaint but Mr. Phadke appearing on behalf of the appellant has stated that he would be satisfied with a decree for Rs. 8,214/- in Civil Suit No. 1-B i.e. Appeal No. 1072/67, for Rs. 19,298/- in Appeal No. 1073/67, and Rs. 12,765 in Appeal No. 1071/67. There will be decrees accordingly. These amounts are far less than what the appellant is entitled to as indicated above, and he would, therefore, get his full costs in all the Courts. They would, of course carry interest at 6 per cent from this date till date of realisation. | 1[ds]5. But even apart from contract we have no hesitation in holding that in all the three cases liability under Section 70 of the Contract Act clearly arises. We do not understand why the High Court thinks that the Dispensary Fund Committees cannot be regarded as the owners or beneficiaries of the buildings of the hospitals. And more curiously the High Court has said that it is the public that are the beneficiaries. The buildings on construction belong to the Dispensary Fund Committees and the Municipal Committee and they have received benefit in so far as they are theis no doubt that in this case the Dispensary Fund Committees have accepted the buildings and they have also been accepted by the State of Maharashtra when they took over the hospitals with their buildings which the appellant had constructed. Thus, the Dispensary Fund Committee in two cases and the Municipal Committee of Gondia in the third have received the benefit and the State of Maharashtra, having taken over the two hospitals became liable to pay the suit amount as successors in interest of the Dispensary Fundhas not been alleged on behalf of the defendants that the rates agreed upon and later enhanced were not fair rates or that anybody else would have undertaken the work cheaper. The only reasonable way of arriving at the value of the benefit derived by the Government is on the basis of the rates agreed upon (including future increases in rates by PWD) and that would be a fair indication of the value of the work.We may in this connection refer to the decision of this Court in Piloo Sidhwa v. Municipal Corpn. (1970) 3 SCR 415 = (AIR 1970 SC 1201 ) where the market price was taken as a proper indication of compensation under Section 70 and interest also was awarded.8. Mr. Phadke appearing on behalf of the appellant did not want any relief against defendants other than the State of Maharashtra in Appeals Nos. 1072/67 and 1073/67 and the Municipal Committee of Gondia in Appeal No. 1071/67. The amount mentioned by us earlier would have had to carry interest at the rate of 6 per cent from the date of plaint but Mr. Phadke appearing on behalf of the appellant has stated that he would be satisfied with a decree for Rs. 8,214/l Suit No.i.e. Appeal No. 1072/67, for Rs. 19,298/in Appeal No. 1073/67, and Rs. 12,765 in Appeal No. 1071/67. There will be decrees accordingly. These amounts are far less than what the appellant is entitled to as indicated above, and he would, therefore, get his full costs in all the Courts. They would, of course carry interest at 6 per cent from this date till date of realisation. | 1 | 3,193 | 497 | ### 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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that the Dispensary Fund Committees have denied that Mr. Tiwari had entered into contracts on their behalf or that the Committees did not pass any resolution authorizing the Deputy Commissioner to enter into agreement. We consider that the evidence of Mr. Tiwari is in consonance with circumstances of this case. This position is also clear from the evidence of Dr. Kalay, Civil Surgeon, Bhandara to the effect that the Deputy Commissioner is the administrative head of all the departments of the district, and in his capacity as such is the person looking after the affairs of these hospitals as well, and that the Dispensary Fund Committee becomes the owner of the hospital after it is constructed and handed over........... We are unable to agree with the High Court that no reliance can be placed on Mr. Tiwaris statement on the ground that he was interested in safeguarding the interest of the Government by saying that he did not enter into the agreements on behalf of the Government. The interest of the Government is very well safeguarded as the contracts do not purport to have been entered into on behalf of the Government. Nor has the Deputy Commissioner been authorised under Section 175 of the Government of India Act to enter into contracts of this character on behalf of the Government. The High Court itself has remarked that it is conceivable that the Deputy Commissioner took the entire responsibility on his own shoulder and went on with the work in an informal way. It would be fair to hold that Mr. Tiwari entered into the contracts on behalf of the Dispensary Fund Committees. As regards the Municipal Committee of Gondia, statutes usually lay down the formalities to be observed in entering into contracts on their behalf and there is nothing to show that these formalities were observed. The contract may not, therefore, be binding on it qua contract.5. But even apart from contract we have no hesitation in holding that in all the three cases liability under Section 70 of the Contract Act clearly arises. We do not understand why the High Court thinks that the Dispensary Fund Committees cannot be regarded as the owners or beneficiaries of the buildings of the hospitals. And more curiously the High Court has said that it is the public that are the beneficiaries. The buildings on construction belong to the Dispensary Fund Committees and the Municipal Committee and they have received benefit in so far as they are the owners.6. It is hardly necessary to refer to the authorities in support of this position. But we may refer to the decision of this Court in State of West Bengal v. B. K. Mondal, 1962 Supp (1) SCR 876 = (AIR 1962 SC 779 ). There a contract to put up certain godowns for the use of the Civil Supplies Department of the State of Bengal was held unenforceable. The godowns were accepted and used by the department concerned. It was held that merely because the contract was illegal it does not follow that the contractor has done something which is not lawful.This Court pointed out that the real basis of the liability under Section 70 is the fact that the person for whom the work has been done, has accepted the work and has received the benefit thereunder, and that what Section 70 prevents is unjust enrichment and it applies as much to individuals as to corporations and Government. There is no doubt that in this case the Dispensary Fund Committees have accepted the buildings and they have also been accepted by the State of Maharashtra when they took over the hospitals with their buildings which the appellant had constructed. Thus, the Dispensary Fund Committee in two cases and the Municipal Committee of Gondia in the third have received the benefit and the State of Maharashtra, having taken over the two hospitals became liable to pay the suit amount as successors in interest of the Dispensary Fund Committees.7. It is true, as the learned Judges of the High Court pointed out that real basis for a claim under Section 70 is not the terms of the contract but the quantum of the benefit actually derived. In the absence of any other material the contract between the parties provides a useful basis for calculating that benefit. It has not been alleged on behalf of the defendants that the rates agreed upon and later enhanced were not fair rates or that anybody else would have undertaken the work cheaper. The only reasonable way of arriving at the value of the benefit derived by the Government is on the basis of the rates agreed upon (including future increases in rates by PWD) and that would be a fair indication of the value of the work.We may in this connection refer to the decision of this Court in Piloo Sidhwa v. Municipal Corpn. (1970) 3 SCR 415 = (AIR 1970 SC 1201 ) where the market price was taken as a proper indication of compensation under Section 70 and interest also was awarded.8. Mr. Phadke appearing on behalf of the appellant did not want any relief against defendants other than the State of Maharashtra in Appeals Nos. 1072/67 and 1073/67 and the Municipal Committee of Gondia in Appeal No. 1071/67. The amount mentioned by us earlier would have had to carry interest at the rate of 6 per cent from the date of plaint but Mr. Phadke appearing on behalf of the appellant has stated that he would be satisfied with a decree for Rs. 8,214/- in Civil Suit No. 1-B i.e. Appeal No. 1072/67, for Rs. 19,298/- in Appeal No. 1073/67, and Rs. 12,765 in Appeal No. 1071/67. There will be decrees accordingly. These amounts are far less than what the appellant is entitled to as indicated above, and he would, therefore, get his full costs in all the Courts. They would, of course carry interest at 6 per cent from this date till date of realisation.
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1
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5. But even apart from contract we have no hesitation in holding that in all the three cases liability under Section 70 of the Contract Act clearly arises. We do not understand why the High Court thinks that the Dispensary Fund Committees cannot be regarded as the owners or beneficiaries of the buildings of the hospitals. And more curiously the High Court has said that it is the public that are the beneficiaries. The buildings on construction belong to the Dispensary Fund Committees and the Municipal Committee and they have received benefit in so far as they are theis no doubt that in this case the Dispensary Fund Committees have accepted the buildings and they have also been accepted by the State of Maharashtra when they took over the hospitals with their buildings which the appellant had constructed. Thus, the Dispensary Fund Committee in two cases and the Municipal Committee of Gondia in the third have received the benefit and the State of Maharashtra, having taken over the two hospitals became liable to pay the suit amount as successors in interest of the Dispensary Fundhas not been alleged on behalf of the defendants that the rates agreed upon and later enhanced were not fair rates or that anybody else would have undertaken the work cheaper. The only reasonable way of arriving at the value of the benefit derived by the Government is on the basis of the rates agreed upon (including future increases in rates by PWD) and that would be a fair indication of the value of the work.We may in this connection refer to the decision of this Court in Piloo Sidhwa v. Municipal Corpn. (1970) 3 SCR 415 = (AIR 1970 SC 1201 ) where the market price was taken as a proper indication of compensation under Section 70 and interest also was awarded.8. Mr. Phadke appearing on behalf of the appellant did not want any relief against defendants other than the State of Maharashtra in Appeals Nos. 1072/67 and 1073/67 and the Municipal Committee of Gondia in Appeal No. 1071/67. The amount mentioned by us earlier would have had to carry interest at the rate of 6 per cent from the date of plaint but Mr. Phadke appearing on behalf of the appellant has stated that he would be satisfied with a decree for Rs. 8,214/l Suit No.i.e. Appeal No. 1072/67, for Rs. 19,298/in Appeal No. 1073/67, and Rs. 12,765 in Appeal No. 1071/67. There will be decrees accordingly. These amounts are far less than what the appellant is entitled to as indicated above, and he would, therefore, get his full costs in all the Courts. They would, of course carry interest at 6 per cent from this date till date of realisation.
|
Rattan Lal Vs. Vardesh Chander and Others | 111 in regard to notice was not based upon any principle of justice, equity and good conscience. In the first instance it may be observed that it is erroneous to suppose that every provision in the Transfer of Property Act and every amendment effected is necessarily based on principles of justice, equity and good conscience. It has to be seen in every case whether the particular provisions of the Act relied upon restates a known rule of equity or whether it is merely a new rule laid down by the legislature without reference to any rule of equity and what is the true nature and character of the rule. Now, so far as section 111 (g) of the Act is concerned, the insistence therein that the notice should be given in writing is intrinsic evidence of the fact that t he formality is merely statutory and it cannot trace its origin to any rule of equity. Equity does not concern itself with mere forms or modes of procedure. If the purpose of the rule as to notice is to indicate the intention of the lessor to determine the lease and to avail himself of the tenants breach of covenant it could, as effectively, be achieved by an oral intimation as by a written one without in any way disturbing the mind of the chancery judge. The requirement as to written notice provided in the section therefore cannot be said to be based on any general rule of equity. That it is not so is apparent from the circumstance that the requirement of a notice in writing to complete a forfeiture has been dispensed with by the legislature in respect to leases executed before 1st April, 1930. Those leases are still governed by the unamended sub-section (g) of section 111. All that was required by that sub-section was that the lessor was to show his intention to determine the lease by some act indicating that intention. The principles of justice, equity and good conscience are not such a variable commodity, that they change and stand altered on a particular date on the mandate of the legislature and that to leases made between 1882 and 1930 the principle of equity applicable is the one contained in sub section (g) as it stood before 1929, and to leases executed after 1st April 1930, the principle of equity is the one stated in the sub-section as it now stands. Question may also be posed, whether according to English law a notice is a necessary requisite to complete a forfeiture." Of course, in that case, Mahajan, J. has dwelt at length on the English law of landlord and tenant and the discussion is partially suggestive of the English law of real property being a good guide to the Indian Judges good conscience. But the ratio is clear that processual technicalities and even substantive formalities cannot masquerade as justice and equity. The touchstone is simply whether the formal requirement of the law is part of what is necessarily just and reasonable. In this perspective, the conclusion is clear that a notice in writing formally determining the tenancy is not a rule of justice or canon of commonsense . Realism, married to equity, being the true test, we are persuaded that the pre-amending Act provision of s. 111 (g) is in consonance with justice. If so, the mere institution of the legal proceeding for eviction fulfils the requirement of law for determination of the lease. The conscience of the Court needs nothing more and nothing else. The rule in Namdeo (supra) settles the law correctly20. Reference was made at the bar to the ruling in Mohd. Amir(1) To understand that decision we have to make a distinction between the principles embodied in s. 111(g) and the provisions thereof. Not all the stipulations and prescriptions in the section can be called the principles behind it. In this light there is no contradiction between the two cases of this Court-the earlier one of Namdeo (supra) and the later Mohd. Amir(1). We are satisfied that the situation in the present case is squarely covered by the earlier ruling. The High Court is right in its view.21. It is a fitting finale to this part of the argument that in the High Court arguments proceeded on the footing that the Supreme Court has ruled in Namdeo (supra) that there being no requirement in English law of a written notice to the lessee of the intention of the lessor to determine the lease on forfeiture, the provision of a notice would not be considered as being consistent with the rules of equity, justice and good conscience. We have already made our comments on the anglophonic approach and do not wish to reiterate them here. However, there are certain pregnant observations in the judgment under appeal pertinent to the present discussion. Observed the High Court:"In the case of Namdeo Lokman Lodhi the Supreme Court was directly concerned with the question of the requirement of written notice engrafted into the clause (g) by the amendment of 1929 was of a technical nature or could be said to be consistent with the English rule regarding forfeiture and therefore, in consonance with the principles of justice, equity and good conscience and the question was clearly answered in the negative."22. The irrelevance of the English law as such to notions of good conscience i n India notwithstanding, we agree that a written notice is no part of equity. The essential principles, not the technical rules, of the TP Act form part of justice, equity and good conscience. The conclusion emerges that the landlords termination of the tenancy in this case is good even without a written notice.23. Many other niceties of law were presented to us by Shri A. K. Sen to extricate the tenant from eviction. They are too unsubstantial and intricate for us to be deflected from the sure and concurrent findings, read in the background of an alternative accommodation being available to the tenant.24. | 0[ds]We cannot agree to this feebly asserted argument. A lease merely stating that it is for a period less than one year is ex facie for an indefinite period and, as such, cannot expire by efflux of time. Nor are we convinced that, notwithstanding the acceptance of rent for the period of 11 years the landlord had not assented to the holding over of the tenancy and that what emerged was a statutory tenancy which did not require notice in law for valid determination. Possibly so; not necessarily. However, we nee d not explore this aspect further in the view that we take of the other submission of the landlord that the lease has been determined by forfeiture, not in terms of s. 111 (g) of the TP Act, but on the application of the principles of justice, equity and good conscience. We will examine this latter contention in some detail, as it is decisive of the fate of the case.The Rent Act contemplates no elaborate pleadings but filling out of particulars in a pro forma which takes the place of a plaint. No specific averment of forfeiture and consequent determination of the lease is found in the petition. Having regard to the comparative informality of these proceedings and thenature of the whole process , such an omission cannot be exaggerated into a lethal infirmity. What is perhaps more pertinent is that the petitioner was innocent of the plea of forfeiture throughout the stages of the trial before the Rent Controller. When the case reached the appellate stage, it was specifically urged that the tenancy stood terminated by forfeiture under s. 111 (g) of the TP Act. The Tribunal studied the terms of the rent deed, Exhibit AW 3/1 and held that there was an express condition againstand a provision that on breach thereof the lessor had the right to move for evictionsomething equivalent to a right toThe tenant remonstrated against this new plea being permitted in appeal but the Court construed the statement in thethat no notice is necessary, to mean that there was a determination by forfeiture even without the issuance of a notice. More over, the Court noticed the fact that the question was only one of law and should be permitted in the interests of justice. After some consideration of the issue the Tribunal reached the result that the tenancy stood determined by forfeiture and therefore no notice was required. We need not tarry further on the tenability of this conclusion since the matter has been more fully examined at the High Courtthe present case, we are relieved of that obligation for the weighty reason that the appellant has all along staked his case on the application of the rules of justice, equity and good conscience and not on the textual rigour of s. 111(g) applied proprio vigore.If the appellants case was that the TP Act applied of its own force, he would have urged so in the High Court, especially because the appellate tribunal had dealt an eviction blow on him by applying the rules of justice, equity and good conscience. Moreover, the categorical statement in the judgment of the High Court confirms the view that the appellant stuck to his stance of justice, equity and good conscience. Nay more. Even in the grounds of appeal to this Court" he has only harped on justice, equity and good conscience and invoked s. 1 11(g) as embodying equity and good conscience. For the first time he has, by a volta face, switched to the TP Act as against the rules of justice, equity and good conscience. It is too late in the day to set up a new case like that. There are many reasons why. Even though we have power to permit a new plea, we should not exercise it here. We decline our discretion to allow the appellant to travel into the new statutory territory of s. 111(g). He has to stand or fall by his sub mission that justice, equity and good conscience is the alter ego of s. 111 (g) of the TP Act in its dual requirements of (a) the breach of a condition providing forand (b) notice in writing to the lessee of an intention to determine the lease.Once we assume the inapplicability of the TP Act to the lease inassertion of the respondent which we do not feel compelled to consider in thisare confronted by the concept of justice, equity and good conscience which, admittedly, comes into play in the absence of any specific legislative provision. In India and in other colonies during the Imperial era a tacit assumption had persuaded the courts to embrace English law (the civilizing mission of the masters) as justice, equity and goodHigh Court held, and we think rightly, that this provision in subsection (g) of section 111 in regard to notice was not based upon any principle of justice, equity and good conscience. In the first instance it may be observed that it is erroneous to suppose that every provision in the Transfer of Property Act and every amendment effected is necessarily based on principles of justice, equity and good conscience. It has to be seen in every case whether the particular provisions of the Act relied upon restates a known rule of equity or whether it is merely a new rule laid down by the legislature without reference to any rule of equity and what is the true nature and character of the rule. Now, so far as section 111 (g) of the Act is concerned, the insistence therein that the notice should be given in writing is intrinsic evidence of the fact that t he formality is merely statutory and it cannot trace its origin to any rule of equity. Equity does not concern itself with mere forms or modes of procedure. If the purpose of the rule as to notice is to indicate the intention of the lessor to determine the lease and to avail himself of the tenants breach of covenant it could, as effectively, be achieved by an oral intimation as by a written one without in any way disturbing the mind of the chancery judge. The requirement as to written notice provided in the section therefore cannot be said to be based on any general rule of equity. That it is not so is apparent from the circumstance that the requirement of a notice in writing to complete a forfeiture has been dispensed with by the legislature in respect to leases executed before 1st April, 1930. Those leases are still governed by the unamendedsubsection (g) of section111. All that was required by thatwas that the lessor was to show his intention to determine the lease by some act indicating that intention. The principles of justice, equity and good conscience are not such a variable commodity, that they change and stand altered on a particular date on the mandate of the legislature and that to leases made between 1882 and 1930 the principle of equity applicable is the one contained in sub section (g) as it stood before 1929, and to leases executed after 1st April 1930, the principle of equity is the one stated in theas it now stands. Question may also be posed, whether according to English law a notice is a necessary requisite to complete a forfeiture." Of course, in that case, Mahajan, J. has dwelt at length on the English law of landlord and tenant and the discussion is partially suggestive of the English law of real property being a good guide to the Indian Judges good conscience. But the ratio is clear that processual technicalities and even substantive formalities cannot masquerade as justice and equity. The touchstone is simply whetherthe formal requirement of the law is part of what is necessarily just and reasonable.In this perspective, the conclusion is clear that a notice in writing formally determining the tenancy is not a rule of justice or canon of commonsense . Realism, married to equity, being the true test, we are persuaded that theAct provision of s. 111 (g) is in consonance with justice. If so, the mere institution of the legal proceeding for eviction fulfils the requirement of law for determination of the lease. The conscience of the Court needs nothing more and nothing else. The rule in Namdeo (supra) settles the law correctly20. Reference was made at the bar to the ruling in Mohd. Amir(1) To understand that decision we have to make a distinction between the principles embodied in s. 111(g) and the provisions thereof. Not all the stipulations and prescriptions in the section can be called the principles behind it. In this light there is no contradiction between the two cases of thisearlier one of Namdeo (supra) and the later Mohd. Amir(1). We are satisfied that the situation in the present case is squarely covered by the earlier ruling. The High Court is right in its view.21. It is a fitting finale to this part of the argument that in the High Court arguments proceeded on the footing that the Supreme Court has ruled in Namdeo (supra) that there being no requirement in English law of a written notice to the lessee of the intention of the lessor to determine the lease on forfeiture, the provision of a notice would not be considered as being consistent with the rules of equity, justice and good conscience. We have already made our comments on the anglophonic approach and do not wish to reiterate them here. However, there are certain pregnant observations in the judgment under appeal pertinent to the present discussion. Observed the High Court:"In the case of Namdeo Lokman Lodhi the Supreme Court was directly concerned with the question of the requirement of written notice engrafted into the clause (g) by the amendment of 1929 was of a technical nature or could be said to be consistent with the English rule regarding forfeiture and therefore, in consonance with the principles of justice, equity and good conscience and the question was clearly answered in the negative."22. The irrelevance of the English law as such to notions of good conscience i n India notwithstanding, we agree that a written notice is no part of equity. The essential principles, not the technical rules, of the TP Act form part of justice, equity and good conscience. The conclusion emerges that the landlords termination of the tenancy in this case is good even without a written notice.23. Many other niceties of law were presented to us by Shri A. K. Sen to extricate the tenant from eviction. They are too unsubstantial and intricate for us to be deflected from the sure and concurrent findings, read in the background of an alternative accommodation being available to the tenant. | 0 | 7,480 | 1,975 | ### 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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111 in regard to notice was not based upon any principle of justice, equity and good conscience. In the first instance it may be observed that it is erroneous to suppose that every provision in the Transfer of Property Act and every amendment effected is necessarily based on principles of justice, equity and good conscience. It has to be seen in every case whether the particular provisions of the Act relied upon restates a known rule of equity or whether it is merely a new rule laid down by the legislature without reference to any rule of equity and what is the true nature and character of the rule. Now, so far as section 111 (g) of the Act is concerned, the insistence therein that the notice should be given in writing is intrinsic evidence of the fact that t he formality is merely statutory and it cannot trace its origin to any rule of equity. Equity does not concern itself with mere forms or modes of procedure. If the purpose of the rule as to notice is to indicate the intention of the lessor to determine the lease and to avail himself of the tenants breach of covenant it could, as effectively, be achieved by an oral intimation as by a written one without in any way disturbing the mind of the chancery judge. The requirement as to written notice provided in the section therefore cannot be said to be based on any general rule of equity. That it is not so is apparent from the circumstance that the requirement of a notice in writing to complete a forfeiture has been dispensed with by the legislature in respect to leases executed before 1st April, 1930. Those leases are still governed by the unamended sub-section (g) of section 111. All that was required by that sub-section was that the lessor was to show his intention to determine the lease by some act indicating that intention. The principles of justice, equity and good conscience are not such a variable commodity, that they change and stand altered on a particular date on the mandate of the legislature and that to leases made between 1882 and 1930 the principle of equity applicable is the one contained in sub section (g) as it stood before 1929, and to leases executed after 1st April 1930, the principle of equity is the one stated in the sub-section as it now stands. Question may also be posed, whether according to English law a notice is a necessary requisite to complete a forfeiture." Of course, in that case, Mahajan, J. has dwelt at length on the English law of landlord and tenant and the discussion is partially suggestive of the English law of real property being a good guide to the Indian Judges good conscience. But the ratio is clear that processual technicalities and even substantive formalities cannot masquerade as justice and equity. The touchstone is simply whether the formal requirement of the law is part of what is necessarily just and reasonable. In this perspective, the conclusion is clear that a notice in writing formally determining the tenancy is not a rule of justice or canon of commonsense . Realism, married to equity, being the true test, we are persuaded that the pre-amending Act provision of s. 111 (g) is in consonance with justice. If so, the mere institution of the legal proceeding for eviction fulfils the requirement of law for determination of the lease. The conscience of the Court needs nothing more and nothing else. The rule in Namdeo (supra) settles the law correctly20. Reference was made at the bar to the ruling in Mohd. Amir(1) To understand that decision we have to make a distinction between the principles embodied in s. 111(g) and the provisions thereof. Not all the stipulations and prescriptions in the section can be called the principles behind it. In this light there is no contradiction between the two cases of this Court-the earlier one of Namdeo (supra) and the later Mohd. Amir(1). We are satisfied that the situation in the present case is squarely covered by the earlier ruling. The High Court is right in its view.21. It is a fitting finale to this part of the argument that in the High Court arguments proceeded on the footing that the Supreme Court has ruled in Namdeo (supra) that there being no requirement in English law of a written notice to the lessee of the intention of the lessor to determine the lease on forfeiture, the provision of a notice would not be considered as being consistent with the rules of equity, justice and good conscience. We have already made our comments on the anglophonic approach and do not wish to reiterate them here. However, there are certain pregnant observations in the judgment under appeal pertinent to the present discussion. Observed the High Court:"In the case of Namdeo Lokman Lodhi the Supreme Court was directly concerned with the question of the requirement of written notice engrafted into the clause (g) by the amendment of 1929 was of a technical nature or could be said to be consistent with the English rule regarding forfeiture and therefore, in consonance with the principles of justice, equity and good conscience and the question was clearly answered in the negative."22. The irrelevance of the English law as such to notions of good conscience i n India notwithstanding, we agree that a written notice is no part of equity. The essential principles, not the technical rules, of the TP Act form part of justice, equity and good conscience. The conclusion emerges that the landlords termination of the tenancy in this case is good even without a written notice.23. Many other niceties of law were presented to us by Shri A. K. Sen to extricate the tenant from eviction. They are too unsubstantial and intricate for us to be deflected from the sure and concurrent findings, read in the background of an alternative accommodation being available to the tenant.24.
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### Explanation:
and we think rightly, that this provision in subsection (g) of section 111 in regard to notice was not based upon any principle of justice, equity and good conscience. In the first instance it may be observed that it is erroneous to suppose that every provision in the Transfer of Property Act and every amendment effected is necessarily based on principles of justice, equity and good conscience. It has to be seen in every case whether the particular provisions of the Act relied upon restates a known rule of equity or whether it is merely a new rule laid down by the legislature without reference to any rule of equity and what is the true nature and character of the rule. Now, so far as section 111 (g) of the Act is concerned, the insistence therein that the notice should be given in writing is intrinsic evidence of the fact that t he formality is merely statutory and it cannot trace its origin to any rule of equity. Equity does not concern itself with mere forms or modes of procedure. If the purpose of the rule as to notice is to indicate the intention of the lessor to determine the lease and to avail himself of the tenants breach of covenant it could, as effectively, be achieved by an oral intimation as by a written one without in any way disturbing the mind of the chancery judge. The requirement as to written notice provided in the section therefore cannot be said to be based on any general rule of equity. That it is not so is apparent from the circumstance that the requirement of a notice in writing to complete a forfeiture has been dispensed with by the legislature in respect to leases executed before 1st April, 1930. Those leases are still governed by the unamendedsubsection (g) of section111. All that was required by thatwas that the lessor was to show his intention to determine the lease by some act indicating that intention. The principles of justice, equity and good conscience are not such a variable commodity, that they change and stand altered on a particular date on the mandate of the legislature and that to leases made between 1882 and 1930 the principle of equity applicable is the one contained in sub section (g) as it stood before 1929, and to leases executed after 1st April 1930, the principle of equity is the one stated in theas it now stands. Question may also be posed, whether according to English law a notice is a necessary requisite to complete a forfeiture." Of course, in that case, Mahajan, J. has dwelt at length on the English law of landlord and tenant and the discussion is partially suggestive of the English law of real property being a good guide to the Indian Judges good conscience. But the ratio is clear that processual technicalities and even substantive formalities cannot masquerade as justice and equity. The touchstone is simply whetherthe formal requirement of the law is part of what is necessarily just and reasonable.In this perspective, the conclusion is clear that a notice in writing formally determining the tenancy is not a rule of justice or canon of commonsense . Realism, married to equity, being the true test, we are persuaded that theAct provision of s. 111 (g) is in consonance with justice. If so, the mere institution of the legal proceeding for eviction fulfils the requirement of law for determination of the lease. The conscience of the Court needs nothing more and nothing else. The rule in Namdeo (supra) settles the law correctly20. Reference was made at the bar to the ruling in Mohd. Amir(1) To understand that decision we have to make a distinction between the principles embodied in s. 111(g) and the provisions thereof. Not all the stipulations and prescriptions in the section can be called the principles behind it. In this light there is no contradiction between the two cases of thisearlier one of Namdeo (supra) and the later Mohd. Amir(1). We are satisfied that the situation in the present case is squarely covered by the earlier ruling. The High Court is right in its view.21. It is a fitting finale to this part of the argument that in the High Court arguments proceeded on the footing that the Supreme Court has ruled in Namdeo (supra) that there being no requirement in English law of a written notice to the lessee of the intention of the lessor to determine the lease on forfeiture, the provision of a notice would not be considered as being consistent with the rules of equity, justice and good conscience. We have already made our comments on the anglophonic approach and do not wish to reiterate them here. However, there are certain pregnant observations in the judgment under appeal pertinent to the present discussion. Observed the High Court:"In the case of Namdeo Lokman Lodhi the Supreme Court was directly concerned with the question of the requirement of written notice engrafted into the clause (g) by the amendment of 1929 was of a technical nature or could be said to be consistent with the English rule regarding forfeiture and therefore, in consonance with the principles of justice, equity and good conscience and the question was clearly answered in the negative."22. The irrelevance of the English law as such to notions of good conscience i n India notwithstanding, we agree that a written notice is no part of equity. The essential principles, not the technical rules, of the TP Act form part of justice, equity and good conscience. The conclusion emerges that the landlords termination of the tenancy in this case is good even without a written notice.23. Many other niceties of law were presented to us by Shri A. K. Sen to extricate the tenant from eviction. They are too unsubstantial and intricate for us to be deflected from the sure and concurrent findings, read in the background of an alternative accommodation being available to the tenant.
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CHINTELS INDIA LTD Vs. BHAYANA BUILDERS PVT. LTD | as a consequence of rejection of the application for condonation of delay and there has been no enquiry as regards the rights of the parties on the issue of setting aside of the award. The appealable order which is contemplated for the purpose of exercise of appellate jurisdiction is the one which deals with the merits of the case in relation to the claim for setting aside or refusing to set aside an arbitral award. As already stated above, the appellate powers under section 37 are not in relation to the proceedings which precedes the enquiry regarding setting aside or refusing to set aside an arbitral award. Being so, the consequence of the order of dismissal of the application for condonation of delay cannot itself amount to an appealable order under section 34(1) for the purpose of appeal under section 37(1) of the Act. 32. This judgment cannot be said to state the law correctly as it does not advert to the decision of this Court in Essar Constructions (supra), and is against the interpretation of section 37(1)(c) of the Arbitration Act, 1996 given by us above. We may also add that this Court, in dismissing the Civil Appeal against the aforesaid judgment, held: 1. The appellants before this Court, in the first instance, impugned the award rendered by the Chief Engineer on 30.06.2005, by preferring an appeal before the District Judge, Nagpur. The District Judge, Nagpur, declined to entertain the appeal on merits, as he found the same barred by limitation, and as such, the application for condonation of delay was dismissed. The District Judge, Nagpur in his order dated 23.12.2005 recorded as under: 17. In nut-shell, what emerges from the material placed on the record is that the applicants or in other words, party making application under Section 34 duly received the award on 4.7.2005, but approached this Court on 18.11.2005. Time in between 4.7.2005 and 18.11.2005 was consumed in taking administrative decision. Beyond statutory period of limitation of three months, further period of thirty days can be condoned, but not thereafter. On 4.11.2005, entire period of four months elapsed. In this view of the matter, this Court has no jurisdiction to entertain the application for condonation of delay and for that matter, application under Section 34 of the Act. 2. The order dated 23.12.2005 was assailed by the appellants before the High Court. Having remained unsuccessful, the appellants have approached this Court. The primary issue, that emerges for consideration is, whether the dismissal of the application filed by the appellants under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Arbitration Act), by the District Judge, Nagpur, was justified in law. 3. So far as the issue in hand is concerned, having heard learned counsel for the rival parties, we are satisfied that on an earlier occasion, the same proposition came up for consideration before this Court, and stands declared by this Court in State of Himachal Pradesh vs. Himachal Techno Engineers (2010) 12 SCC 210. In view of the legal position declared by this Court, on the subject of limitation under Section 34 of the Arbitration Act, we are of the view, that the order passed by the District Judge, Nagpur, calls for no interference. 33. The order of this Court does not in any manner touch upon the reasoning of the Bombay High Court. On the contrary, this court refers to the judgment of this Court in Himachal Pradesh Techno Engineers (supra), which as has been held by us hereinabove, makes it clear that Section 5 of the Limitation Act is excluded by section 34(3) of the Arbitration Act, 1996 and that no condonation of delay can take place beyond the period of 120 days. It is on this ground, citing the learned District Judges order, that this Court did not interfere. Consequently, it cannot be said that this Court approved of the judgment of the Division Bench of the Bombay High Court. Likewise, the reasoning contained in Radha Krishna Seth (supra), does not commend itself to us. Both these judgments therefore do not state the law correctly and stand overruled. 34. Shri Rohatgi referred to the Statement of Objects and Reasons of the Arbitration Act, 1996 and in particular clause 4(v), which reads as follows: 4. Main objects of the Bill are as under: xxx xxx xxx (v) to minimise the supervisory role of courts in the arbitral process; 35. Shri Rohatgi then read section 5 of the Arbitration Act, 1996 to us. According to him, in furtherance of this object, section 37 was enacted giving a limited right of appeal. He argued that an appeal, being a creature of statute should not, therefore, be enlarged beyond what is provided by the Legislature. Section 5 of the Arbitration and Conciliation Act reads as follows: 5. Extent of judicial intervention.—Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part. 36. This section does not take Shri Rohatgis argument much further, as after the non-obstante clause, the section states that no judicial authority shall intervene except where so provided in this Part. What is provided in this part is section 37, which therefore brings us back to square one. Undoubtedly, a limited right of appeal is given under section 37 of theArbitration Act, 1996. But it is not the province or duty of this Court to further limit such right by excluding appeals which are in fact provided for, given the language of the provision as interpreted by us hereinabove. Thus, this last argument also has no legs on which to stand. 37. Consequently, the question of law is answered by stating that an appeal under section 37(1)(c) of the Arbitration Act, 1996 would be maintainable against an order refusing to condone delay in filing an application under section 34 of the Arbitration Act, 1996 to set aside an award. | 1[ds]8. A reading of section 34(1) would make it clear that an application made to set aside an award has to be in accordance with both sub-sections (2) and (3). This would mean that such application would not only have to be within the limitation period prescribed by sub-section (3), but would then have to set out grounds under sub-sections (2) and/or (2A) for setting aside such award. What follows from this is that the application itself must be within time, and if not within a period of three months, must be accompanied with an application for condonation of delay, provided it is within a further period of 30 days, this Court having made it clear that section 5 of the Limitation Act, 1963 does not apply and that any delay beyond 120 days cannot be condoned – see State of Himachal Pradesh v. Himachal Techno Engineers and Anr. (2010) 12 SCC 210 at paragraph 5.It is important to note that the expression setting aside or refusing to set aside an arbitral award does not stand by itself. The expression has to be read with the expression that follows - under section 34. Section 34 is not limited to grounds being made out under section 34(2). Obviously, therefore, a literal reading of the provision would show that a refusal to set aside an arbitral award as delay has not been condoned under sub-section (3) of section 34 would certainly fall within section 37(1)(c). The aforesaid reasoning is strengthened by the fact that under section 37(2)(a), an appeal lies when a plea referred to in sub-section (2) or (3) of section 16 is accepted. This would show that the Legislature, when it wished to refer to part of a section, as opposed to the entire section, did so. Contrasted with the language of section 37(1)(c), where the expression under section 34 refers to the entire section and not to section 34(2) only, the fact that an arbitral award can be refused to be set aside for refusal to condone delay under section 34(3) gets further strengthened.10. In Essar Constructions (supra), a judgment rendered under section 39 of the 1940 Act, this Court was faced with the same question as is raised in the appeal before us.11. The question which the Court was required to answer was set out as follows:5. But was the Civil Judges order dismissing the respondents application under Section 5 at all revisable under Section 115 of the Code or did an appeal lie from it under Section 39 of the Arbitration Act, 1940? The answer is of moment as the powers of an appellate court are wider than those available under Section 115. Section 39(1)(vi) of the Arbitration Act, 1940 says that an appeal shall lie inter alia from an order refusing to set aside an award.6. To arrive at a conclusion as to whether the order passed by the Senior Civil Judge, Kakinada was an order refusing to set aside the award, we have to consider the facts.12. After setting out the order of the Senior Civil Judge, who refused to condone delay in filing an application for setting aside the award, the Court then held:11. The outcome of the order in effect was that the prayer for setting aside the award was refused on the ground of delay.12. The effect test was applied by the High Court of Andhra Pradesh in Babumiyan & Mastan v. K. Seethayamma [AIR 1985 AP 135] which said:In the light of the rulings in G. Gopalaswami v. G. Navalgaria [AIR 1967 Mad 403 ] and the decision of the Bench in CMA No. 612 of 1977 dated 3-4-1978, the legal position may be enunciated as follows: The order refusing to condone the delay in filing the claim petition has the effect of finally disposing of the original petition. Such an order can, therefore, be treated as an award and hence it is appealable.13. Again a Division Bench of the Assam High Court in Mafizuddin Bhuyan v. Alimuddin Bhuyan [AIR 1950 Ass 191] has said:Whether objections to an award are dismissed on the merits or they are dismissed on the ground that they are filed beyond time, the Court by dismissing them in effect refuses to set aside the award, and an order refusing to set aside an award is clearly appealable under Section 39.14. In some High Courts, no separate application is filed under Section 5 of the Limitation Act and the prayer for condonation of delay is included along with the prayers made for substantive relief. Courts have entertained appeals from an order dismissing an application on the ground of limitation. Thus, in State of W.B. v. A. Mondal [AIR 1985 Cal 12 (DB)] where an application under Section 30 of the Arbitration Act was dismissed on the ground of limitation, an appeal was entertained. (See also Damodaran v. Bhaskaran [(1988) 2 KLT 753].)15. The procedure appears to have been approved by the Supreme Court in the case of Union of India v. Union Builders [AIR 1985 Cal 337 (DB)] where on an appeal to the Supreme Court from an order dismissing an application under Section 30 on the ground of delay, the appeal was remanded to the High Court to be disposed of.16. The position should be no different in courts where a separate application under Section 5 of the Limitation Act is required to be filed. If the various High Courts decisions noted earlier are correct, then the application under Section 5 being dismissed, the application under Section 30 would consequently also have to be dismissed although this might be a mere formality. The end result would be the same.xxx xxx xxx21. Section 39(1)(vi) of the Arbitration Act, 1940 does not indicate the grounds on which the court may refuse to set aside the award. There is nothing in its language to exclude a refusal to set aside the award because the application to set aside the award is barred by limitation. By dismissing the application albeit under Section 5, the assailability of the award is concluded as far as the court rejecting the application is concerned. Ultimately therefore, it is an order passed under Section 30 of the Arbitration Act though by applying the provisions of the Limitation Act.13. The Court ultimately concluded:25. Reading Section 39(1)(vi) and Section 17 together, it would therefore follow that an application to set aside an award which is rejected on the ground that it is delayed and that no sufficient cause has been made out under Section 5 of the Limitation Act would be an appealable order.14. It will be noticed that so far as the present question is involved, section 39(1)(vi) of the 1940 Act is in pari materia to section 37(1)(c) of the Arbitration Act, 1996.14. It will be noticed that so far as the present question is involved, section 39(1)(vi) of the 1940 Act is in pari materia to section 37(1)(c) of the Arbitration Act, 1996.This was in fact held in two of the judgments of this Court. In Chief Engineer of BPDP/REO Ranchi (supra), this Court when considering a similar question held as follows:5. Section 37(1)(b) of the Act is in pari materia with Section 39(1)(vi) of the Arbitration Act, 1940 (in short the old Act). The provisions in the Acts read as follows:37. (1) An appeal shall lie from the following orders (and from no others) to the court authorised by law to hear appeals from original decrees of the court passing the order, namely—(b) setting aside or refusing to set aside an arbitral award under Section 34.39. Appealable orders.—(1) An appeal shall lie from the following orders passed under this Act (and from no others) to the court authorised by law to hear appeals from original decrees of the court passing the order:(vi) setting aside or refusing to set aside an award:15. Having so held, this Court then referred to and followed the judgment in Essar Constructions (supra) and the judgment contained in Union of India v. Manager, Jain and Associates (2001) 3 SCC 277 , ultimately holding:8. The decision in Popular Construction case [(2001) 8 SCC 470] did not deal with specific issues in this case. In that decision it was held that in respect of sufficient cause cases the provisions of Section 34(3) of the Act which are special provisions relating to condonation of delay override the general provisions of Section 5 of the Limitation Act, 1963 (in short the Limitation Act). The position was reiterated in the Western Builders case [(2006) 6 SCC 239] and also in Fairgrowth Investments Ltd. v. Custodian [(2004) 11 SCC 472] . There can be no quarrel with the proposition that Section 5 of the Limitation Act providing for condonation of delay is excluded by Section 34(3) of the Act.9. But the question in the instant case is not about the applicability of Section 5 of the Limitation Act, and the question really is whether the appeal was maintainable. The High Court did not consider this aspect. The appeal is clearly maintainable. Therefore, the order of the High Court is set aside. The High Court shall deal with the matter and examine the respective stand on merits treating the appeal to be maintainable.16. Likewise, in Fuerst Day Lawson Ltd. (supra) this Court held:37. These general principles are culled out from the decisions of this Court rendered under Section 104 CPC and various other Acts, as noted above. But there is another set of decisions of this Court on the question under consideration rendered in the context of Section 39 of the 1940 Act. Section 39 of the erstwhile Act contained the provision of appeal and provided as follows:39.Appealable orders.—(1) An appeal shall lie from the following orders passed under this Act (and from no others) to the court authorised by law to hear appeals from original decree of the court passing the orders:(i) superseding an arbitration;(ii) on an award stated in the form of a special case;(iii) modifying or correcting an award;(iv) filing or refusing to file an arbitration agreement;(v) staying or refusing to stay legal proceedings where there is an arbitration agreement;(vi) setting aside or refusing to set aside an award:Provided that the provisions of this section shall not apply to any order passed by a Small Cause Court.(2) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court.(Insofar as relevant for the present, Section 37 of the 1996 Act, is very similar to Section 39 of the previous Act as quoted above.)17. It then referred to an argument of counsel that there would be no material difference between the provisions of section 39 of Arbitration Act, 1940 and section 37 of the Arbitration Act, 1996 vis-à-vis section 50 of the 1996 Act, as follows:43. Mr Dave, in reply submitted that the words (and from no others) occurring in Section 39 of the 1940 Act and Section 37 of the 1996 Act were actually superfluous and seen, thus, there would be no material difference between the provisions of Section 39 of the 1940 Act or Section 37 of the 1996 Act and Section 50 of the 1996 Act and all the decisions rendered on Section 39 of the 1940 Act will apply with full force to cases arising under Section 50 of the 1996 Act.18. So far as section 37 of the Arbitration Act, 1996 and section 39 of the Arbitration Act, 1940 were concerned, this Court agreed with counsels argument, but disagreed with the submission insofar as section 50 of the 1996 Act was concerned, as follows:52. Having regard to the grammatical use of brackets or parentheses, if the words (and from no others) occurring in Section 39 of the 1940 Act or Section 37 of the 1996 Act are viewed as an explanation or afterthought or extra information separate from the main context, then, there may be some substance in Mr Daves submission that the words in parenthesis are surplusage and in essence the provisions of Section 39 of the 1940 Act or Section 37 of the 1996 Act are the same as Section 50 of the 1996 Act. Section 39 of the 1940 Act says no more and no less than what is stipulated in Section 50 of the 1996 Act. But there may be a different reason to contend that Section 39 of the 1940 Act or its equivalent Section 37 of the 1996 Act are fundamentally different from Section 50 of the 1996 Act and hence, the decisions rendered under Section 39 of the 1940 Act may not have any application to the facts arising under Section 50 of the 1996 Act. But for that we need to take a look at the basic scheme of the 1996 Act and its relevant provisions.19. The reasoning in Essar Constructions (supra) commends itself to us, being on a pari materia provision to that contained in section 37(1)(c) of the Arbitration Act, 1996. We may only add that the reasoning of the aforesaid judgment is further strengthened by our analysis of the additional words under section 34 which occur in section 37(1)(c), and which are absent in section 39(1)(vi) [the pari materia provision to section 34 of the Arbitration Act, 1996 being section 30 of the Arbitration Act, 1940].20. In point of fact, the effect doctrine referred to in Essar Constructions (supra) is statutorily inbuilt in section 37 of the Arbitration Act, 1996 itself.So far as section 37(1)(a) is concerned, where a party is referred to arbitration under section 8, no appeal lies. This is for the reason that the effect of such order is that the parties must go to arbitration, it being left to the learned Arbitrator to decide preliminary points under section 16 of the Act, which then become the subject matter of appeal under section 37(2)(a) or the subject matter of grounds to set aside under section 34 an arbitral award ultimately made, depending upon whether the preliminary points are accepted or rejected by the arbitrator. It is also important to note that an order refusing to refer parties to arbitration under section 8 may be made on a prima facie finding that no valid arbitration agreement exists, or on the ground that the original arbitration agreement, or a duly certified copy thereof is not annexed to the application under section 8. In either case, i.e. whether the preliminary ground for moving the court under section 8 is not made out either by not annexing the original arbitration agreement, or a duly certified copy, or on merits – the court finding that prima facie no valid agreement exists – an appeal lies under section 37(1)(a).21. Likewise, under section 37(2)(a), where a preliminary ground of the arbitrator not having the jurisdiction to continue with the proceedings is made out, an appeal lies under the said provision, as such determination is final in nature as it brings the arbitral proceedings to an end. However, if the converse is held by the learned arbitrator, then as the proceedings before the arbitrator are then to carry on, and the aforesaid decision on the preliminary ground is amenable to challenge under section 34 after the award is made, no appeal is provided. This is made clear by section 16(5) and (6) of the Arbitration Act, 199622. Given the fact that the effect doctrine is part and parcel of the statutory provision for appeal under section 37, and the express language of section 37(1)(c), it is difficult to accede to the argument of Shri Rohatgi.23. We now come to the judgment in Simplex Infrastructures Ltd. (supra). In this judgment, what was argued before this Court is set out with reference to the Division Bench judgment under appeal as follows:11. The Division Bench of the High Court, however, made a fine distinction by holding that the judgment of the learned Single Judge of condoning delay in filing of the petition under Section 34 of the Act was without jurisdiction and not in terms of the provisions of the Act. It is not possible to countenance this approach. The Division Bench, in our opinion, was not right in observing that the decision in Tanusree Art Printers [Tanusree Art Printers v. Rabindra Nath Pal, 2000 SCC OnLine Cal 217] being of a Special Bench of three Judges of the same court, was binding, in spite of having noticed the decision of this Court in Fuerst Day Lawson Ltd. [Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., (2011) 8 SCC 333 ] — which is directly on the point and was pressed into service by the appellant. Neither the Division Bench of the High Court of Calcutta which dealt with Modi Korea Telecommunication Ltd. [Modi Korea Telecommunication Ltd. v. Appcon Consultants (P) Ltd., 1999 SCC OnLine Cal 19] nor the three-Judge Bench which decided Tanusree Art Printers, had the benefit of the judgment of this Court in Fuerst Day Lawson Ltd., which is later in time.24. In stating that the Division Bench was wrong, as a judgment of a single Judge condoning delay in the filing of a petition under section 34 cannot be said to be without jurisdiction, the Court then held:12… On a bare reading of this provision, it is noticed that the remedy of the appeal has been provided only against an order of setting aside or refusing to set aside an arbitral award under Section 34. No appeal is provided against an order passed by the court of competent jurisdiction condoning the delay in filing the petition under Section 34 of the Act as such. The Division Bench in the impugned judgment, therefore, rightly noted that remedy of appeal against the impugned order of the learned Single Judge was not otherwise available under Section 37 of the Act.13. In our opinion, the issue is squarely answered against the respondent by the decision of this Court in Fuerst Day Lawson Ltd. [Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., (2011) 8 SCC 333 ] In that, the judgment of the learned Single Judge dated 27-4-2016 [Union of India v. Simplex Infrastructures Ltd., 2016 SCC OnLine Cal 12045], was passed on an application purported to be under Section 34(3) of the Act, for condoning delay in filing of the petition for setting aside the arbitral award. Hence, the remedy of letters patent appeal against that decision is unavailable. The question as to whether the learned Single Judge had rightly exercised the discretion or otherwise, could be assailed by the respondent before this Court by way of special leave petition. But, certainly not by way of a letters patent appeal under Clause 15. For, even if the learned Single Judge may have committed manifest error or wrongly decided the application for condonation of delay, that judgment is ascribable to exercise of jurisdiction under Section 34(3) of the Act. In other words, whether the prayer for condonation of delay can be accepted or whether the application deserves to be rejected, is a matter well within the jurisdiction of that court.25. This judgment does not in any manner militate against what has been held by us. In answer to the question as to whether a single Judges judgment condoning delay in filing an application under section 34 was without jurisdiction, this Court correctly held that such an order is in exercise of jurisdiction conferred by the statute. This judgment therefore cannot be said to be an authority for the proposition that, as the converse position to the facts contained in the present appeal before us has been held to be not appealable, it must follow that even where delay is not condoned, the same position obtains. This would fly in the face of the reasoning contained in this judgment, as well as the reasoning contained in Essar Constructions (supra), which has commended itself to us.26. We now come to this Courts judgment in BGS SGS Soma (supra). As correctly pointed out by Shri Rao, the question before this Court in BGS SGS Soma (supra) was a completely different one, being set out in paragraph 1 of the judgment as follows:1. Leave granted. Three appeals before us raise questions as to maintainability of appeals under Section 37 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Arbitration Act, 1996), and, given the arbitration clause in these proceedings, whether the seat of the arbitration proceedings is New Delhi or Faridabad, consequent upon which a petition under Section 34 of the Arbitration Act, 1996 may be filed dependent on where the seat of arbitration is located.27. In answering this question, the Court first went into the interplay between section 37 of the Arbitration Act, 1996 and section 13 of the Commercial Courts Act, 2015, holding that section 37 of the Arbitration Act alone provides grounds for appeal, section 13(1) of the Commercial Courts Act providing the procedure thereof. In the course of discussion, this Court then referred to a judgment of the Delhi High Court as follows:16. Shri Chowdhury also referred to another Delhi High Court judgment reported as Harmanprit Singh Sidhu v. Arcadia Shares & Stock Brokers (P) Ltd. [(2016) 234 DLT 30], in which a learned Single Judge of the Delhi High Court allowed an application for condonation of delay in filing a Section 34 petition. The Division Bench, in holding that an appeal against such an order would not be maintainable under Section 37 of the Arbitration Act, 1996, read with the Commercial Courts Act, 2015 held:10. Coming to Section 37(1), it is evident that an appeal can lie from only the orders specified in clauses (a), (b) or (c). In other words, an appeal under Section 37 would only be maintainable against (a) an order refusing to refer the parties to arbitration under Section 8 of the A&C Act; (b) an order granting or refusing to grant any measure under Section 9 of the A&C Act; or (c) an order setting aside or refusing to set aside an arbitral award under Section 34 of the A&C Act. The impugned order [Arcadia Shares & Stock Brokers (P) Ltd. v. Harmanprit Singh Sidhu, 2016 SCC OnLine Del 6625] is clearly not relatable to Section 8 or 9 of the A&C Act. It was sought to be contended by the learned counsel for the appellant that the present appeal would fall within Section 37(1)(c) which relates to an order setting aside or refusing to set aside an arbitral award under Section 34. We are unable to accept this proposition. By virtue of the impugned order, the arbitral award dated 10-9-2013 has not been set aside. Nor has the court, at this stage, refused to set aside the said arbitral award under Section 34 of the A&C Act. In fact, the appellant in whose favour the award has been made, would only be aggrieved if the award were to have been set aside in whole or in part. That has not happened. What the learned single Judge has done is to have condoned the delay in re-filing of the petition under Section 34. This has not, in any way, impacted the award.17. The reasoning in this judgment in Harmanprit Singh Sidhu commends itself to us, as a distinction is made between judgments which either set aside, or refuse to set aside, an arbitral award after the court applies its mind to Section 34 of the Arbitration Act, 1996, as against preliminary orders of condonation of delay, which do not in any way impact the arbitral award that has been assailed.28. It is well settled that judgments are not to be construed like Euclids theorems (see Amar Nath Om Prakash v. State of Punjab (1985) 1 SCC 345 ), but all observations made therein must relate to the context in which they were made. In that case, the Court put it thus:10. There is one other significant sentence in Sreenivasa General Traders v. State of A.P [(1983) 4 SCC 353] with which we must express our agreement, it was said:With utmost respect, these observations of the learned Judge are not to be read as Euclids theorems, nor as provisions of a statute. These observations must be read in the context in which they appear.We consider it proper to say, as we have already said in other cases, that judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes.In London Graving Dock Co. Ltd. v. Horton [1951 AC 737, 761] Lord MacDermott observed:The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J., as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished Judge....In Home Office v. Dorset Yacht Co. Ltd. [(1970) 2 All ER 294] Lord Reid said:Lord Atkins speech [Donoghue v. Stevension, 1932 All ER Rep 1, 11] ... is not to be treated as if it was a statutory definition. It will require qualification in new circumstances.Megarry, J. in (1971) 1 WLR 1062 observed:One must not, of course, construe even a reserved judgment of even Russell, L.J. as if it were an Act of Parliament.And, in Herrington v. British Railways Board [1972 AC 877 (HL)] Lord Morris said:There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case.11. There are a few other observations in Kewal Krishan Puri case [(1980) 1 SCC 416] to which apply with the same force all that we have said above. It is needless to repeat the oft-quoted truism of Lord Halsbury that a case is only an authority for what it actually decides and not for what may seem to follow logically from it.29. The context in which paragraph 17 of BGS SGS Soma (supra) was made, was a context in which an application under section 34 would have to be returned to the Court which had jurisdiction to decide a section 34 application, dependent upon where the seat of the arbitral tribunal was located. In this context, it was held that a mere preliminary step, which did not lead to the application being rejected finally, cannot be characterised as an order which would result in the applications fate being sealed once and for all. The Courts focus was not on the language of section 37(1)(c), nor were any arguments addressed as to its correct interpretation. As a matter of fact, Harmanprit Singh Sidhu (supra) itself went on to hold:13. In sum, the impugned order does not fall within the category of appealable orders specified in Section 37(1) of the A&C Act. Therefore, even if the provisions of Section 37(1) are read with Section 13 of the Commercial Courts Act, the present appeal is not maintainable. This, however, does not mean that the appellant cannot take up the ground that is sought to be urged before us if the decision in OMP 294/2014 (under Section 34 of the A&C Act) goes against him. In other words, if the arbitral award is set aside in part or in whole and the appellant is aggrieved thereby, he may prefer an appeal under Section 37 of the A&C Act on merits as also on the ground that the delay in re-filing ought not to have been condoned. This is in line with the scheme of the A&C Act of not, in any way, stalling the proceedings thereunder. For example, under Section 13(4) of the A&C Act, if a challenge to an arbitrator is not successful, the arbitral tribunal is required to continue the arbitral proceedings and make an arbitral award and, in such an instance, as provided in Section 13(5) of the A&C Act, the party challenging the arbitrator may make an application for setting aside such an arbitral award in accordance with Section 34. In other words, recourse to a remedy for an unsuccessful challenge to an arbitrator is deferred till the stage of the making of the award. Similarly, under Section 16, an arbitral tribunal may rule on its jurisdiction. In a case where the arbitral tribunal rejects a plea with regard to its jurisdiction, it is enjoined by Section 16(5) of the A&C Act to continue with the arbitral proceedings and to make the arbitral award. Section 16(6) stipulates that a party aggrieved by such an arbitral award may make an application for setting aside the award in accordance with Section 34. Here, too, the unsuccessful party, who challenges the jurisdiction of an arbitral tribunal, is asked to wait till the award is made. The remedy of questioning the decision of the arbitral tribunal with regard to the arbitrators jurisdiction in such a case is not extinguished but is merely deferred till the making of the arbitral award. In similar vein, in the present case, the remedy of challenging the decision of condoning the delay in re-filing is not extinguished but is deferred till the final decision of the court on the pending Section 34 petition.30. Obviously therefore, an observation of this Court torn out of its context cannot be said to conclude the issue that is now before us.31. We now come to the sheet anchor of Shri Rohatgis case, namely, Ramdas Construction Co. (supra). In this judgment, a Division Bench of the Bombay High Court held:9. Sub-section (3) of section 34 of the Act provides that an application for setting aside may be made after three months have elapsed from the date on which the party making such application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal, provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months, it may entertain the application within a further period of thirty days, but not thereafter. This provision of law expressly reveals that the legislature has provided a specific period of limitation for filing an application for setting aside of the award and simultaneously the Court has been given discretion to extend such period only by thirty days, and not beyond the said period of thirty days. The provision is very clear in that regard. However, the scope of enquiry under sub-section(3) is restricted to the cause for delay in filing the application but it does not relate to the merits of the application for setting aside of the award. Being so, an order which is to be passed in exercise of powers under sub-section (3) of section 34 of the Act cannot extend to the subject matter of the application for setting aside of the award but has to restrict to the aspect of delay in filing such application only. Such an order is not contemplated to be an appealable order within the meaning of the said expression under section 37 of the Act. It is very clear from the fact that section 37 refers to the orders dealing with the aspect of setting aside or refusing to set aside an arbitral award. It does not refer to the proceedings preceding the enquiry in relation to the issue of setting aside or refusing to set aside an arbitral award. The subject-matter of delay in filing an application and the condonation thereof relates to the proceedings preceding the enquiry for setting aside or refusing to set aside an arbitral award. Once it is clear that section 37(1)(b) does not contemplate any order passed in such proceeding relating to the matter preceding the enquiry in relation to setting aside or refusing to set aside an arbitral award, such an order cannot be considered as an appealable order within the meaning of the said expression under section 37 of the Act.10. Undoubtedly the impugned order while rejecting the application for condonation of delay, clearly observes:Consequently, application under section 34 of the Arbitration and Conciliation Act, 1996 for setting aside the award is also rejected being barred by time.In other words, the Court has not dealt with the application for setting aside of the award on merits and the same has been disposed of solely as a consequence of rejection of the application for condonation of delay and there has been no enquiry as regards the rights of the parties on the issue of setting aside of the award. The appealable order which is contemplated for the purpose of exercise of appellate jurisdiction is the one which deals with the merits of the case in relation to the claim for setting aside or refusing to set aside an arbitral award. As already stated above, the appellate powers under section 37 are not in relation to the proceedings which precedes the enquiry regarding setting aside or refusing to set aside an arbitral award. Being so, the consequence of the order of dismissal of the application for condonation of delay cannot itself amount to an appealable order under section 34(1) for the purpose of appeal under section 37(1) of the Act.32. This judgment cannot be said to state the law correctly as it does not advert to the decision of this Court in Essar Constructions (supra), and is against the interpretation of section 37(1)(c) of the Arbitration Act, 1996 given by us above. We may also add that this Court, in dismissing the Civil Appeal against the aforesaid judgment, held:1. The appellants before this Court, in the first instance, impugned the award rendered by the Chief Engineer on 30.06.2005, by preferring an appeal before the District Judge, Nagpur. The District Judge, Nagpur, declined to entertain the appeal on merits, as he found the same barred by limitation, and as such, the application for condonation of delay was dismissed. The District Judge, Nagpur in his order dated 23.12.2005 recorded as under:17. In nut-shell, what emerges from the material placed on the record is that the applicants or in other words, party making application under Section 34 duly received the award on 4.7.2005, but approached this Court on 18.11.2005. Time in between 4.7.2005 and 18.11.2005 was consumed in taking administrative decision. Beyond statutory period of limitation of three months, further period of thirty days can be condoned, but not thereafter. On 4.11.2005, entire period of four months elapsed. In this view of the matter, this Court has no jurisdiction to entertain the application for condonation of delay and for that matter, application under Section 34 of the Act.2. The order dated 23.12.2005 was assailed by the appellants before the High Court. Having remained unsuccessful, the appellants have approached this Court. The primary issue, that emerges for consideration is, whether the dismissal of the application filed by the appellants under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Arbitration Act), by the District Judge, Nagpur, was justified in law.3. So far as the issue in hand is concerned, having heard learned counsel for the rival parties, we are satisfied that on an earlier occasion, the same proposition came up for consideration before this Court, and stands declared by this Court in State of Himachal Pradesh vs. Himachal Techno Engineers (2010) 12 SCC 210. In view of the legal position declared by this Court, on the subject of limitation under Section 34 of the Arbitration Act, we are of the view, that the order passed by the District Judge, Nagpur, calls for no interference.33. The order of this Court does not in any manner touch upon the reasoning of the Bombay High Court. On the contrary, this court refers to the judgment of this Court in Himachal Pradesh Techno Engineers (supra), which as has been held by us hereinabove, makes it clear that Section 5 of the Limitation Act is excluded by section 34(3) of the Arbitration Act, 1996 and that no condonation of delay can take place beyond the period of 120 days. It is on this ground, citing the learned District Judges order, that this Court did not interfere. Consequently, it cannot be said that this Court approved of the judgment of the Division Bench of the Bombay High Court. Likewise, the reasoning contained in Radha Krishna Seth (supra), does not commend itself to us. Both these judgments therefore do not state the law correctly and stand overruled.36. This section does not take Shri Rohatgis argument much further, as after the non-obstante clause, the section states that no judicial authority shall intervene except where so provided in this Part. What is provided in this part is section 37, which therefore brings us back to square one. Undoubtedly, a limited right of appeal is given under section 37 of theArbitration Act, 1996. But it is not the province or duty of thisCourt to further limit such right by excluding appeals which are in fact provided for, given the language of the provision as interpreted by us hereinabove. Thus, this last argument also has no legs on which to stand.37. Consequently, the question of law is answered by stating that an appeal under section 37(1)(c) of the Arbitration Act, 1996 would be maintainable against an order refusing to condone delay in filing an application under section 34 of the Arbitration Act, 1996 to set aside an award. | 1 | 11,047 | 7,291 | ### Instruction:
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as a consequence of rejection of the application for condonation of delay and there has been no enquiry as regards the rights of the parties on the issue of setting aside of the award. The appealable order which is contemplated for the purpose of exercise of appellate jurisdiction is the one which deals with the merits of the case in relation to the claim for setting aside or refusing to set aside an arbitral award. As already stated above, the appellate powers under section 37 are not in relation to the proceedings which precedes the enquiry regarding setting aside or refusing to set aside an arbitral award. Being so, the consequence of the order of dismissal of the application for condonation of delay cannot itself amount to an appealable order under section 34(1) for the purpose of appeal under section 37(1) of the Act. 32. This judgment cannot be said to state the law correctly as it does not advert to the decision of this Court in Essar Constructions (supra), and is against the interpretation of section 37(1)(c) of the Arbitration Act, 1996 given by us above. We may also add that this Court, in dismissing the Civil Appeal against the aforesaid judgment, held: 1. The appellants before this Court, in the first instance, impugned the award rendered by the Chief Engineer on 30.06.2005, by preferring an appeal before the District Judge, Nagpur. The District Judge, Nagpur, declined to entertain the appeal on merits, as he found the same barred by limitation, and as such, the application for condonation of delay was dismissed. The District Judge, Nagpur in his order dated 23.12.2005 recorded as under: 17. In nut-shell, what emerges from the material placed on the record is that the applicants or in other words, party making application under Section 34 duly received the award on 4.7.2005, but approached this Court on 18.11.2005. Time in between 4.7.2005 and 18.11.2005 was consumed in taking administrative decision. Beyond statutory period of limitation of three months, further period of thirty days can be condoned, but not thereafter. On 4.11.2005, entire period of four months elapsed. In this view of the matter, this Court has no jurisdiction to entertain the application for condonation of delay and for that matter, application under Section 34 of the Act. 2. The order dated 23.12.2005 was assailed by the appellants before the High Court. Having remained unsuccessful, the appellants have approached this Court. The primary issue, that emerges for consideration is, whether the dismissal of the application filed by the appellants under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Arbitration Act), by the District Judge, Nagpur, was justified in law. 3. So far as the issue in hand is concerned, having heard learned counsel for the rival parties, we are satisfied that on an earlier occasion, the same proposition came up for consideration before this Court, and stands declared by this Court in State of Himachal Pradesh vs. Himachal Techno Engineers (2010) 12 SCC 210. In view of the legal position declared by this Court, on the subject of limitation under Section 34 of the Arbitration Act, we are of the view, that the order passed by the District Judge, Nagpur, calls for no interference. 33. The order of this Court does not in any manner touch upon the reasoning of the Bombay High Court. On the contrary, this court refers to the judgment of this Court in Himachal Pradesh Techno Engineers (supra), which as has been held by us hereinabove, makes it clear that Section 5 of the Limitation Act is excluded by section 34(3) of the Arbitration Act, 1996 and that no condonation of delay can take place beyond the period of 120 days. It is on this ground, citing the learned District Judges order, that this Court did not interfere. Consequently, it cannot be said that this Court approved of the judgment of the Division Bench of the Bombay High Court. Likewise, the reasoning contained in Radha Krishna Seth (supra), does not commend itself to us. Both these judgments therefore do not state the law correctly and stand overruled. 34. Shri Rohatgi referred to the Statement of Objects and Reasons of the Arbitration Act, 1996 and in particular clause 4(v), which reads as follows: 4. Main objects of the Bill are as under: xxx xxx xxx (v) to minimise the supervisory role of courts in the arbitral process; 35. Shri Rohatgi then read section 5 of the Arbitration Act, 1996 to us. According to him, in furtherance of this object, section 37 was enacted giving a limited right of appeal. He argued that an appeal, being a creature of statute should not, therefore, be enlarged beyond what is provided by the Legislature. Section 5 of the Arbitration and Conciliation Act reads as follows: 5. Extent of judicial intervention.—Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part. 36. This section does not take Shri Rohatgis argument much further, as after the non-obstante clause, the section states that no judicial authority shall intervene except where so provided in this Part. What is provided in this part is section 37, which therefore brings us back to square one. Undoubtedly, a limited right of appeal is given under section 37 of theArbitration Act, 1996. But it is not the province or duty of this Court to further limit such right by excluding appeals which are in fact provided for, given the language of the provision as interpreted by us hereinabove. Thus, this last argument also has no legs on which to stand. 37. Consequently, the question of law is answered by stating that an appeal under section 37(1)(c) of the Arbitration Act, 1996 would be maintainable against an order refusing to condone delay in filing an application under section 34 of the Arbitration Act, 1996 to set aside an award.
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to set aside an arbitral award. The subject-matter of delay in filing an application and the condonation thereof relates to the proceedings preceding the enquiry for setting aside or refusing to set aside an arbitral award. Once it is clear that section 37(1)(b) does not contemplate any order passed in such proceeding relating to the matter preceding the enquiry in relation to setting aside or refusing to set aside an arbitral award, such an order cannot be considered as an appealable order within the meaning of the said expression under section 37 of the Act.10. Undoubtedly the impugned order while rejecting the application for condonation of delay, clearly observes:Consequently, application under section 34 of the Arbitration and Conciliation Act, 1996 for setting aside the award is also rejected being barred by time.In other words, the Court has not dealt with the application for setting aside of the award on merits and the same has been disposed of solely as a consequence of rejection of the application for condonation of delay and there has been no enquiry as regards the rights of the parties on the issue of setting aside of the award. The appealable order which is contemplated for the purpose of exercise of appellate jurisdiction is the one which deals with the merits of the case in relation to the claim for setting aside or refusing to set aside an arbitral award. As already stated above, the appellate powers under section 37 are not in relation to the proceedings which precedes the enquiry regarding setting aside or refusing to set aside an arbitral award. Being so, the consequence of the order of dismissal of the application for condonation of delay cannot itself amount to an appealable order under section 34(1) for the purpose of appeal under section 37(1) of the Act.32. This judgment cannot be said to state the law correctly as it does not advert to the decision of this Court in Essar Constructions (supra), and is against the interpretation of section 37(1)(c) of the Arbitration Act, 1996 given by us above. We may also add that this Court, in dismissing the Civil Appeal against the aforesaid judgment, held:1. The appellants before this Court, in the first instance, impugned the award rendered by the Chief Engineer on 30.06.2005, by preferring an appeal before the District Judge, Nagpur. The District Judge, Nagpur, declined to entertain the appeal on merits, as he found the same barred by limitation, and as such, the application for condonation of delay was dismissed. The District Judge, Nagpur in his order dated 23.12.2005 recorded as under:17. In nut-shell, what emerges from the material placed on the record is that the applicants or in other words, party making application under Section 34 duly received the award on 4.7.2005, but approached this Court on 18.11.2005. Time in between 4.7.2005 and 18.11.2005 was consumed in taking administrative decision. Beyond statutory period of limitation of three months, further period of thirty days can be condoned, but not thereafter. On 4.11.2005, entire period of four months elapsed. In this view of the matter, this Court has no jurisdiction to entertain the application for condonation of delay and for that matter, application under Section 34 of the Act.2. The order dated 23.12.2005 was assailed by the appellants before the High Court. Having remained unsuccessful, the appellants have approached this Court. The primary issue, that emerges for consideration is, whether the dismissal of the application filed by the appellants under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Arbitration Act), by the District Judge, Nagpur, was justified in law.3. So far as the issue in hand is concerned, having heard learned counsel for the rival parties, we are satisfied that on an earlier occasion, the same proposition came up for consideration before this Court, and stands declared by this Court in State of Himachal Pradesh vs. Himachal Techno Engineers (2010) 12 SCC 210. In view of the legal position declared by this Court, on the subject of limitation under Section 34 of the Arbitration Act, we are of the view, that the order passed by the District Judge, Nagpur, calls for no interference.33. The order of this Court does not in any manner touch upon the reasoning of the Bombay High Court. On the contrary, this court refers to the judgment of this Court in Himachal Pradesh Techno Engineers (supra), which as has been held by us hereinabove, makes it clear that Section 5 of the Limitation Act is excluded by section 34(3) of the Arbitration Act, 1996 and that no condonation of delay can take place beyond the period of 120 days. It is on this ground, citing the learned District Judges order, that this Court did not interfere. Consequently, it cannot be said that this Court approved of the judgment of the Division Bench of the Bombay High Court. Likewise, the reasoning contained in Radha Krishna Seth (supra), does not commend itself to us. Both these judgments therefore do not state the law correctly and stand overruled.36. This section does not take Shri Rohatgis argument much further, as after the non-obstante clause, the section states that no judicial authority shall intervene except where so provided in this Part. What is provided in this part is section 37, which therefore brings us back to square one. Undoubtedly, a limited right of appeal is given under section 37 of theArbitration Act, 1996. But it is not the province or duty of thisCourt to further limit such right by excluding appeals which are in fact provided for, given the language of the provision as interpreted by us hereinabove. Thus, this last argument also has no legs on which to stand.37. Consequently, the question of law is answered by stating that an appeal under section 37(1)(c) of the Arbitration Act, 1996 would be maintainable against an order refusing to condone delay in filing an application under section 34 of the Arbitration Act, 1996 to set aside an award.
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Girijanandan Singh Parashram (Deceased) by His Lrs Vs. New Cotton Ginning and Pressing Company | Dr. A. S. Anand, J. This is a tenants appeal. The predecessor-in-interest of the appellant was inducted as a tenant of the demised premises in 1948 at a monthly rent of Rs. 25. On 11.12.1947, the respondent-landlord filed an application before the Rent Controller, Akot seeking permission to terminate the tenancy of the predecessor-in-interest of the appellant under Clause 13(3)(ii) of the Central Provinces and Berar Letting of Houses and Rent Control Order, 1949 (hereinafter referred to as the Rent Control Order). In the application, it was alleged that the tenant who was obliged to pay the rent at the end of every tenancy month was a habitual defaulter and that he used to pay the rent after a lapse of 2, 3 or 4 months and had thereby incurred the disqualification which justified the grant of permission to terminate his tenancy. The application was resisted by the tenant/appellant who pleaded that though the tenancy was a monthly tenancy, but there was an agreement between the parties that the rent was to be paid by the tenant as and when demanded by the landlord, who used to send a rent collector for that purpose. It was asserted that since he was paying rent as and when demanded, he could not be deemed to be a habitual defaulter. After recording evidence, the learned Rent Controller allowed the application holding the tenant to be a habitual defaulter. Permission was granted to the landlord- respondent to terminate the tenancy of the tenant-appellant under Clause 13(3)(ii) of the Rent Control Order. The tenants appeal before the Resident Deputy Collector, Akola was allowed. The appellate Authority held that the tenant was not a habitual defaulter. The landlord-respondent thereupon approached the High Court through a petition under Article 227 of the Constitution of India. On 23.2.1981, the High Court allowed the petition and set aside the order of the Resident Deputy Collector and restored that of the Rent Controller. Hence this appeal by special leave. 2. We have heard learned counsel for the parties. 3. It is well settled that in the absence of any express or implied agreement to the contrary, in a monthly tenancy, the rent is payable at the end of each month of tenancy. In the instant case, however, perusal of Annexure `B Schedule filed in the Court of the Rent Controller, shows that right from the inception of tenancy, rent was not being paid at the end of every tenancy month but used to be paid sometimes after 2 months and sometimes even after 3 to 6 months. It, therefore, appears that the stand of the tenant-appellant to the effect that a practice had developed between the parties to make the payment of the rent as and when demanded on behalf of the landlord cannot be said to be untenable. That being the factual position, the High Court was not justified in interfering with the finding of fact recorded by the learned Resident Deputy Collector in exercise of the appellate powers. The Resident Deputy Collector, on the basis of the evidence on the record, categorically held that the tenant did not suffer from any financial disability to pay the rent nor had he developed a habit of being a habitual defaulter and that on the contrary, rent was being paid as per the practice which had developed between the parties at different intervals of time. The material on the record justifies that finding and it should not have been upset by the High Court in a petition under Article 227. We are, therefore, of the opinion that the order of the High Court cannot be sustained and we accordingly set it aside. 4. There is, however, one other aspect of the case. In 1948, the premises had been let out to the predecessor-in-interest of the present tenant on a rent of Rs. 25 per month only. The rent continues to be the same even though almost half a century has gone by. That rent, keeping in view todays inflationary prices, appears to us to be wholly unrealistic and unreasonable. We asked learned counsel for the appellant, Mr. Mohta, whether the tenant should not increase the rent voluntarily. Since the appellant was present in Court, Mr. Mohta, on instructions from the appellant, submitted that the appellant was willing to increase the rent and to pay the same as may be fixed by the Court. It appears to us, keeping in view the present income of the appellant, which is stated to be about Rs. 4,000 per month that rent @ Rs. 400 per month would meet the ends of justice and do complete justice between the parties. The appellant agrees before us to pay the rent at that rate. We, therefore, direct that with effect from 1.3.1998, the appellant shall pay rent @ 400 per month for the demised premises. The rent shall be payable every month by the 7th day of the succeeding calendar month. In case there are any arrears, the appellant undertakes to pay the same, at the old rates, on or before 28.2.1998. | 1[ds]Since the appellant was present in Court, Mr. Mohta, on instructions from the appellant, submitted that the appellant was willing to increase the rent and to pay the same as may be fixed by the Court. It appears to us, keeping in view the present income of the appellant, which is stated to be about Rs. 4,000 per month that rent @ Rs. 400 per month would meet the ends of justice and do complete justice between the parties. The appellant agrees before us to pay the rent at that rate. We, therefore, direct that with effect from 1.3.1998, the appellant shall pay rent @ 400 per month for the demised premises. The rent shall be payable every month by the 7th day of the succeeding calendar month. In case there are any arrears, the appellant undertakes to pay the same, at the old rates, on or before 28.2.1998. | 1 | 946 | 172 | ### Instruction:
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Dr. A. S. Anand, J. This is a tenants appeal. The predecessor-in-interest of the appellant was inducted as a tenant of the demised premises in 1948 at a monthly rent of Rs. 25. On 11.12.1947, the respondent-landlord filed an application before the Rent Controller, Akot seeking permission to terminate the tenancy of the predecessor-in-interest of the appellant under Clause 13(3)(ii) of the Central Provinces and Berar Letting of Houses and Rent Control Order, 1949 (hereinafter referred to as the Rent Control Order). In the application, it was alleged that the tenant who was obliged to pay the rent at the end of every tenancy month was a habitual defaulter and that he used to pay the rent after a lapse of 2, 3 or 4 months and had thereby incurred the disqualification which justified the grant of permission to terminate his tenancy. The application was resisted by the tenant/appellant who pleaded that though the tenancy was a monthly tenancy, but there was an agreement between the parties that the rent was to be paid by the tenant as and when demanded by the landlord, who used to send a rent collector for that purpose. It was asserted that since he was paying rent as and when demanded, he could not be deemed to be a habitual defaulter. After recording evidence, the learned Rent Controller allowed the application holding the tenant to be a habitual defaulter. Permission was granted to the landlord- respondent to terminate the tenancy of the tenant-appellant under Clause 13(3)(ii) of the Rent Control Order. The tenants appeal before the Resident Deputy Collector, Akola was allowed. The appellate Authority held that the tenant was not a habitual defaulter. The landlord-respondent thereupon approached the High Court through a petition under Article 227 of the Constitution of India. On 23.2.1981, the High Court allowed the petition and set aside the order of the Resident Deputy Collector and restored that of the Rent Controller. Hence this appeal by special leave. 2. We have heard learned counsel for the parties. 3. It is well settled that in the absence of any express or implied agreement to the contrary, in a monthly tenancy, the rent is payable at the end of each month of tenancy. In the instant case, however, perusal of Annexure `B Schedule filed in the Court of the Rent Controller, shows that right from the inception of tenancy, rent was not being paid at the end of every tenancy month but used to be paid sometimes after 2 months and sometimes even after 3 to 6 months. It, therefore, appears that the stand of the tenant-appellant to the effect that a practice had developed between the parties to make the payment of the rent as and when demanded on behalf of the landlord cannot be said to be untenable. That being the factual position, the High Court was not justified in interfering with the finding of fact recorded by the learned Resident Deputy Collector in exercise of the appellate powers. The Resident Deputy Collector, on the basis of the evidence on the record, categorically held that the tenant did not suffer from any financial disability to pay the rent nor had he developed a habit of being a habitual defaulter and that on the contrary, rent was being paid as per the practice which had developed between the parties at different intervals of time. The material on the record justifies that finding and it should not have been upset by the High Court in a petition under Article 227. We are, therefore, of the opinion that the order of the High Court cannot be sustained and we accordingly set it aside. 4. There is, however, one other aspect of the case. In 1948, the premises had been let out to the predecessor-in-interest of the present tenant on a rent of Rs. 25 per month only. The rent continues to be the same even though almost half a century has gone by. That rent, keeping in view todays inflationary prices, appears to us to be wholly unrealistic and unreasonable. We asked learned counsel for the appellant, Mr. Mohta, whether the tenant should not increase the rent voluntarily. Since the appellant was present in Court, Mr. Mohta, on instructions from the appellant, submitted that the appellant was willing to increase the rent and to pay the same as may be fixed by the Court. It appears to us, keeping in view the present income of the appellant, which is stated to be about Rs. 4,000 per month that rent @ Rs. 400 per month would meet the ends of justice and do complete justice between the parties. The appellant agrees before us to pay the rent at that rate. We, therefore, direct that with effect from 1.3.1998, the appellant shall pay rent @ 400 per month for the demised premises. The rent shall be payable every month by the 7th day of the succeeding calendar month. In case there are any arrears, the appellant undertakes to pay the same, at the old rates, on or before 28.2.1998.
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1
### Explanation:
Since the appellant was present in Court, Mr. Mohta, on instructions from the appellant, submitted that the appellant was willing to increase the rent and to pay the same as may be fixed by the Court. It appears to us, keeping in view the present income of the appellant, which is stated to be about Rs. 4,000 per month that rent @ Rs. 400 per month would meet the ends of justice and do complete justice between the parties. The appellant agrees before us to pay the rent at that rate. We, therefore, direct that with effect from 1.3.1998, the appellant shall pay rent @ 400 per month for the demised premises. The rent shall be payable every month by the 7th day of the succeeding calendar month. In case there are any arrears, the appellant undertakes to pay the same, at the old rates, on or before 28.2.1998.
|
Devi Multiplex Vs. State Of Gujarat | by promissory estoppel to exclude the cost of corrugated fibreboard containers from the value of the goods for the purpose of assessment of excise duty for the period 24-5-1976 to 2-11-1982.”36. The limitations to the doctrine delineated in Motilal Padampat Sugar Mills3 however, were also reaffirmed when it was said: (SCC pp. 387-88, para 13)“[T]hat there can be no promissory estoppel against the legislature in the exercise of its legislative functions nor can the Government or public authority be debarred by promissory estoppel from enforcing a statutory prohibition. It is equally true that promissory estoppel cannot be used to compel the Government or a public authority to carry out a representation or promise which is contrary to law or which was outside the authority or power of the officer of the Government or of the public authority to make. We may also point out that the doctrine of promissory estoppel being an equitable doctrine, it must yield when the equity so requires; if it can be shown by the Government or public authority that having regard to the facts as they have transpired, it would be inequitable to hold the Government or public authority to the promise or representation made by it, the Court would not raise an equity in favour of the person to whom the promise or representation is made and enforce the promise or representation against the Government or public authority.” 19. Coming to the facts of the present case, we find that the Scheme definitely promised incentives in the form of Tax holiday of 5-10 years in respect of exemptions from Sales Tax, Turnover Tax, Electricity Duty, Luxury Tax and Entertainment Tax upto 100 per cent of capital investment if a new unit was registered after 1.8.1995 and appropriate investment in fixed capital assets was made. It also promised an initial period of two years for going operational in the first instance, extendable by further period of two years subject to satisfactory progress to be found by the State Level Committee. Even thereafter, the Unit could still approach the State Government for further extension. This was part of the core of the Scheme, which invited investment in tourism units promising tax holiday as stated above. Based on such representation, various units including that of the appellants having come forward and altered their position, the State Government would certainly be bound by the principles of Promissory Estoppel. The State Government was thus estopped from going back on the promise so made in the Scheme and could not have curtailed the period and the opportunity specifically made available within which the project could be completed so as to avail the benefits under the Scheme. We find nothing in the present case on the basis of which there could possibly be room to say that it would be inequitable to hold the State Government to its promise. Out of 108 TRCs issued under the Scheme, the burden that the Government was well aware and thought that it could comfortably bear, only 19 or 20 units have been established and are functional. In any case, the impact of incentives so offered under the Scheme and the consequential burden must have been weighed carefully when such promise was made and the Scheme was formed. We may respectfully refer to the following observations of this Court in S.V.A. Steel Re- Rolling Mills Ltd. and others v. State of Kerala and others (2014) 4 SCC 186 )to which one of us (Anil R. Dave, J.) was a party: “30. Before laying down any policy which would give benefits to its subjects, the State must think about pros and cons of the policy and its capacity to give the benefits. Without proper appreciation of all the relevant factors, the State should not give any assurance, not only because that would be in violation of the principles of promissory estoppel but it would be unfair and immoral on the part of the State not to act as per its promise.” 20. Furthermore, the Scheme as framed on 20.12.1995 formed the basis of a statutory notification under Section 29 of Act 16 of 1977 and as such the core components of the Scheme had acquired a statutory status. By virtue of said Section 29, the notification dated 14.2.1997 was required to be laid for not less than 30 days before the State Legislature. If the State Government was desirous of amending, varying or rescinding said notification dated 14.2.1997, the subsequent G.R. dated 28.06.2000 ought to have been translated in a statutory notification under Section 29 of the Act 16 of 1977. In the absence of such steps having been undertaken, G.R. dated 28.06.2000 could not in any way detract from or dilute the effect of the Scheme which had acquired statutory status. 21. We therefore hold that the appellants were entitled to have full benefit and advantage of Clause 10 of the Scheme and the curtailment of the period and opportunity available under said Clause 10 of the Scheme by subsequent G.R. dated 28.06.2000 was bad and ineffective.22. The record indicates that the progress of the project of the appellants was greatly hampered as a result of major earth quake in the State on 26.01.2001 and large scale communal riots in the State in February 2002. The State Level Committee was satisfied that the commencement and continuation of the project was so affected as a result of these major difficulties and had granted initial extension of six months but the appellants had benefit of only few days out of such extension. The subsequent request for further extension which was backed with relevant certificate from the Chartered Accountant certainly persuaded the State Level Committee to find that the facts justified grant of further extension but it felt it had lost the power to grant such extension because of G. R. dated 28.06.2000. In the light of the view that we have taken, the State Level Committee was still competent to consider the request for grant of extension. | 1[ds]This first level of extensions for a total period of two years could be granted by the State Level Committee and even if a unit was unable to go into operation after availing such extensions, it could still apply to the Government for further extension. Clauses 8 and 8.1 dealt with incentives and period of eligibility which would go up to ten years after a unit was found to be fully eligible. These clauses clearly show that such stages or eventualities would survive even after the expiry of period of the operation of the Scheme. The reading of the Scheme further shows that no fresh application and TRCs could be granted after the period of operation but those who had crossed the threshold and were given TRC, could have the full benefit of the stages contemplated in Section 10. In our considered view, it would be incorrect to say that all the clauses including Clause 10 would cease to operate after the period of operation had come to an end. It being the clear intent that such stages and eventualities ought to survive even after the expiry of the Scheme, we reject the submission advanced on behalf of the State.17. Clause 7 of the Scheme classifies projects in different categories and for a Large Scale Tourism Unit, with which we are presently concerned, fixed capital investment was required to be more than Rs.90 lakhs. The Scheme definitely promised an initial period for completion of the project under Clause 10 (a) as two years after the initial effective steps were under taken by the concerned unit. Clause 10 (b) further promised an extension for two years subject to State Level Committee being satisfied that an individual unit had experienced difficulties in implementing the project. A unit was therefore promised the availability of an opportunity, depending upon the individual fact situation, to pray for extension up to two years. Clause 10(C) further entitled such unit to approach the State Govt. even after the aforesaid aggregate period of four years for further extension. In our view, Clause 10 was one of the core features of the Scheme based on which eligible units were invited to make capital investment of more than Rs. 90 Lakhs with a promise of incentives under Clause 8. Having given such promise, based on which the appellants incurred capital expenditure, the question now arises as regards applicability of doctrine of Promissory Estoppel.Coming to the facts of the present case, we find that the Scheme definitely promised incentives in the form of Tax holiday ofyears in respect of exemptions from Sales Tax, Turnover Tax, Electricity Duty, Luxury Tax and Entertainment Tax upto 100 per cent of capital investment if a new unit was registered after 1.8.1995 and appropriate investment in fixed capital assets was made. It also promised an initial period of two years for going operational in the first instance, extendable by further period of two years subject to satisfactory progress to be found by the State Level Committee. Even thereafter, the Unit could still approach the State Government for further extension. This was part of the core of the Scheme, which invited investment in tourism units promising tax holiday as stated above. Based on such representation, various units including that of the appellants having come forward and altered their position, the State Government would certainly be bound by the principles of Promissory Estoppel. The State Government was thus estopped from going back on the promise so made in the Scheme and could not have curtailed the period and the opportunity specifically made available within which the project could be completed so as to avail the benefits under the Scheme.We therefore hold that the appellants were entitled to have full benefit and advantage of Clause 10 of the Scheme and the curtailment of the period and opportunity available under said Clause 10 of the Scheme by subsequent G.R. dated 28.06.2000 was bad and ineffective.22. The record indicates that the progress of the project of the appellants was greatly hampered as a result of major earth quake in the State on 26.01.2001 and large scale communal riots in the State in February 2002. The State Level Committee was satisfied that the commencement and continuation of the project was so affected as a result of these major difficulties and had granted initial extension of six months but the appellants had benefit of only few days out of such extension. The subsequent request for further extension which was backed with relevant certificate from the Chartered Accountant certainly persuaded the State Level Committee to find that the facts justified grant of further extension but it felt it had lost the power to grant such extension because of G. R. dated 28.06.2000. In the light of the view that we have taken, the State Level Committee was still competent to consider the request for grant of extension. | 1 | 6,740 | 870 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
### Input:
by promissory estoppel to exclude the cost of corrugated fibreboard containers from the value of the goods for the purpose of assessment of excise duty for the period 24-5-1976 to 2-11-1982.”36. The limitations to the doctrine delineated in Motilal Padampat Sugar Mills3 however, were also reaffirmed when it was said: (SCC pp. 387-88, para 13)“[T]hat there can be no promissory estoppel against the legislature in the exercise of its legislative functions nor can the Government or public authority be debarred by promissory estoppel from enforcing a statutory prohibition. It is equally true that promissory estoppel cannot be used to compel the Government or a public authority to carry out a representation or promise which is contrary to law or which was outside the authority or power of the officer of the Government or of the public authority to make. We may also point out that the doctrine of promissory estoppel being an equitable doctrine, it must yield when the equity so requires; if it can be shown by the Government or public authority that having regard to the facts as they have transpired, it would be inequitable to hold the Government or public authority to the promise or representation made by it, the Court would not raise an equity in favour of the person to whom the promise or representation is made and enforce the promise or representation against the Government or public authority.” 19. Coming to the facts of the present case, we find that the Scheme definitely promised incentives in the form of Tax holiday of 5-10 years in respect of exemptions from Sales Tax, Turnover Tax, Electricity Duty, Luxury Tax and Entertainment Tax upto 100 per cent of capital investment if a new unit was registered after 1.8.1995 and appropriate investment in fixed capital assets was made. It also promised an initial period of two years for going operational in the first instance, extendable by further period of two years subject to satisfactory progress to be found by the State Level Committee. Even thereafter, the Unit could still approach the State Government for further extension. This was part of the core of the Scheme, which invited investment in tourism units promising tax holiday as stated above. Based on such representation, various units including that of the appellants having come forward and altered their position, the State Government would certainly be bound by the principles of Promissory Estoppel. The State Government was thus estopped from going back on the promise so made in the Scheme and could not have curtailed the period and the opportunity specifically made available within which the project could be completed so as to avail the benefits under the Scheme. We find nothing in the present case on the basis of which there could possibly be room to say that it would be inequitable to hold the State Government to its promise. Out of 108 TRCs issued under the Scheme, the burden that the Government was well aware and thought that it could comfortably bear, only 19 or 20 units have been established and are functional. In any case, the impact of incentives so offered under the Scheme and the consequential burden must have been weighed carefully when such promise was made and the Scheme was formed. We may respectfully refer to the following observations of this Court in S.V.A. Steel Re- Rolling Mills Ltd. and others v. State of Kerala and others (2014) 4 SCC 186 )to which one of us (Anil R. Dave, J.) was a party: “30. Before laying down any policy which would give benefits to its subjects, the State must think about pros and cons of the policy and its capacity to give the benefits. Without proper appreciation of all the relevant factors, the State should not give any assurance, not only because that would be in violation of the principles of promissory estoppel but it would be unfair and immoral on the part of the State not to act as per its promise.” 20. Furthermore, the Scheme as framed on 20.12.1995 formed the basis of a statutory notification under Section 29 of Act 16 of 1977 and as such the core components of the Scheme had acquired a statutory status. By virtue of said Section 29, the notification dated 14.2.1997 was required to be laid for not less than 30 days before the State Legislature. If the State Government was desirous of amending, varying or rescinding said notification dated 14.2.1997, the subsequent G.R. dated 28.06.2000 ought to have been translated in a statutory notification under Section 29 of the Act 16 of 1977. In the absence of such steps having been undertaken, G.R. dated 28.06.2000 could not in any way detract from or dilute the effect of the Scheme which had acquired statutory status. 21. We therefore hold that the appellants were entitled to have full benefit and advantage of Clause 10 of the Scheme and the curtailment of the period and opportunity available under said Clause 10 of the Scheme by subsequent G.R. dated 28.06.2000 was bad and ineffective.22. The record indicates that the progress of the project of the appellants was greatly hampered as a result of major earth quake in the State on 26.01.2001 and large scale communal riots in the State in February 2002. The State Level Committee was satisfied that the commencement and continuation of the project was so affected as a result of these major difficulties and had granted initial extension of six months but the appellants had benefit of only few days out of such extension. The subsequent request for further extension which was backed with relevant certificate from the Chartered Accountant certainly persuaded the State Level Committee to find that the facts justified grant of further extension but it felt it had lost the power to grant such extension because of G. R. dated 28.06.2000. In the light of the view that we have taken, the State Level Committee was still competent to consider the request for grant of extension.
### Response:
1
### Explanation:
This first level of extensions for a total period of two years could be granted by the State Level Committee and even if a unit was unable to go into operation after availing such extensions, it could still apply to the Government for further extension. Clauses 8 and 8.1 dealt with incentives and period of eligibility which would go up to ten years after a unit was found to be fully eligible. These clauses clearly show that such stages or eventualities would survive even after the expiry of period of the operation of the Scheme. The reading of the Scheme further shows that no fresh application and TRCs could be granted after the period of operation but those who had crossed the threshold and were given TRC, could have the full benefit of the stages contemplated in Section 10. In our considered view, it would be incorrect to say that all the clauses including Clause 10 would cease to operate after the period of operation had come to an end. It being the clear intent that such stages and eventualities ought to survive even after the expiry of the Scheme, we reject the submission advanced on behalf of the State.17. Clause 7 of the Scheme classifies projects in different categories and for a Large Scale Tourism Unit, with which we are presently concerned, fixed capital investment was required to be more than Rs.90 lakhs. The Scheme definitely promised an initial period for completion of the project under Clause 10 (a) as two years after the initial effective steps were under taken by the concerned unit. Clause 10 (b) further promised an extension for two years subject to State Level Committee being satisfied that an individual unit had experienced difficulties in implementing the project. A unit was therefore promised the availability of an opportunity, depending upon the individual fact situation, to pray for extension up to two years. Clause 10(C) further entitled such unit to approach the State Govt. even after the aforesaid aggregate period of four years for further extension. In our view, Clause 10 was one of the core features of the Scheme based on which eligible units were invited to make capital investment of more than Rs. 90 Lakhs with a promise of incentives under Clause 8. Having given such promise, based on which the appellants incurred capital expenditure, the question now arises as regards applicability of doctrine of Promissory Estoppel.Coming to the facts of the present case, we find that the Scheme definitely promised incentives in the form of Tax holiday ofyears in respect of exemptions from Sales Tax, Turnover Tax, Electricity Duty, Luxury Tax and Entertainment Tax upto 100 per cent of capital investment if a new unit was registered after 1.8.1995 and appropriate investment in fixed capital assets was made. It also promised an initial period of two years for going operational in the first instance, extendable by further period of two years subject to satisfactory progress to be found by the State Level Committee. Even thereafter, the Unit could still approach the State Government for further extension. This was part of the core of the Scheme, which invited investment in tourism units promising tax holiday as stated above. Based on such representation, various units including that of the appellants having come forward and altered their position, the State Government would certainly be bound by the principles of Promissory Estoppel. The State Government was thus estopped from going back on the promise so made in the Scheme and could not have curtailed the period and the opportunity specifically made available within which the project could be completed so as to avail the benefits under the Scheme.We therefore hold that the appellants were entitled to have full benefit and advantage of Clause 10 of the Scheme and the curtailment of the period and opportunity available under said Clause 10 of the Scheme by subsequent G.R. dated 28.06.2000 was bad and ineffective.22. The record indicates that the progress of the project of the appellants was greatly hampered as a result of major earth quake in the State on 26.01.2001 and large scale communal riots in the State in February 2002. The State Level Committee was satisfied that the commencement and continuation of the project was so affected as a result of these major difficulties and had granted initial extension of six months but the appellants had benefit of only few days out of such extension. The subsequent request for further extension which was backed with relevant certificate from the Chartered Accountant certainly persuaded the State Level Committee to find that the facts justified grant of further extension but it felt it had lost the power to grant such extension because of G. R. dated 28.06.2000. In the light of the view that we have taken, the State Level Committee was still competent to consider the request for grant of extension.
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Pandit Sri Chand And Ors Vs. M/S. Jagdish Parshad Kishan Chand | and the deceased respondent; (b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the court and (c) when the decree against the surviving respondents, if the appeal succeeds, be ineffective that is to say it could not be successfully executed.The abatement of an appeal against the deceased respondent means not only that the decree between the appellant and the deceased respondent has become final, but also as a necessary corollary that the appellate court cannot in any way modify that decree directly or indirectly.When the decree in favour of the respondents is joint and indivisible, the appeal against the respondents other than the deceased respondent cannot be proceeded with if the appeal against the deceased respondent has abated."The principle of this judgment was affirmed in Rameshwar Prasads case (1964) 3 SCR 549 : (AIR 1963 SC 1901 ) and later in an unreported judgment in Kishan Singh v. Nidhan Singh, C. A. No. 563 of 1962, dated 14-12-1964 (SC). It may be pointed out that the three tests suggested by Raghubar Dayal, J., in Nathu Rams case (1962) 2 SCR 636 ; (AIR 1962 SC 89 ) are not cumulative tests. Even if one of them is satisfied, the Court say, having regard to all the circumstances, hold that the appeal has abated in its entirety.8. But counsel for the appellants has contended that the rule laid down by this Court in Nathu Rams case (1962) 2 SCR 636 ; (AIR 1962 SC 89 ) and other cases has no application to this appeal firstly, because this appeal arises from an order in execution proceeding and rules as to abatement by the express provision contained in O. 22 R. 12 Code of Civil Procedure have no application to appeals in an execution proceeding, and secondly, that in cases in which the order or decree appealed against gives rise to a liability which is joint and several it is open to one of the persons declared so liable to prosecute an appeal in so far as he is concerned, notwithstanding abatement of the appeal of a co-obliges. Order 22 R. 12 of the Code of Civil Procedure provides that nothing in rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order. On the true interpretation of this rule there is conflict of opinion in the High Courts. In some cases the view has prevalied that appeals from order in execution proceedings are not subject to rules 3, 4 and 8 of O. 22 Code of Civil Procedure and failure to implead heirs and legal representatives of a deceased party in such an appeal will not be visited by an order of abatement. In other cases it has been held that an appeal against an order in execution is not "a proceeding in execution of a decree" and that such a appeal will abate if the heirs are not brought on record within the period of limitation, and that Rs. 12 has no application to appeals. In this appeal it is not necessary to resolve this conflict, for appeals to this Court are governed by the rules contained in O. 16 of the Supreme Court Rules. 1950, and by R. 14 thereof it is provided. :"An application to bring on record the legal representative of a deceased appellant or respondent shall be made within ninety days of the death of the said appellant or respondent :Provided that in computing the said period the time taken in obtaining a certificate from the High Court shall be excluded." The rule is explicit and makes no exemption in favour of any class of appeals. It is true that R. 14-A of O. 16 of the Supreme Court Rules, 1950, provides that :"The provisions of Order XXII of the Code relating to abatement and of Article 171 in the First Schedule to the Indian Limitation Act, 1908 (IX of 1908), shall, so far as may be applicable, apply to appeals and proceedings under rule 12 and rule 18 in the High Court and in the Supreme Court, and thereby the provisions of O. 86 relating to abatement of appeals are attracted. But there is no warrant for holding that any class of appeals filed in this Court is exempt from the operation of R. 14.9. Liability of the sureties is under the law joint and several. If a creditor seeks to enforce the surety bond against some only of the joint sureties, the other sureties will not on that account be discharged: nor will release by the creditor of one of them discharge the other: vide Sections 137 and 138 of the Contract Act. But the fact that the surety bond is enforceable against each surety severally, and that it is open to the creditor to release one or more of the joint sureties, does not alter the true character of an adjudication of the Court when proceedings are commenced to enforce the covenants of the bond against all the sureties. We are not concerned in this appeal with the privilege which a creditor may exercise, but with the effect of an adjudication which the Court has made in a proceeding to enforce the covenant of the Bond. The mere fact that the obligation arising under a covenant may be enforced severally against all the covenantors does not make the liability of each covenantor distinct. It is true that in enforcement of the claim of the decree holder the properties belonging to the sureties individually may be sold separately. But that is because the liability arises under distinct transactions.10. It must, therefore be held that the appeal has abated, because the representatives of the second appellant Basant Lal have not been brought on record within the time permitted by R. 14 of O. 16. of the Supreme Court Rules, 1950, and the delay in filing the petition to bring the representatives on record has not been condoned. | 0[ds]In our view this objection must be upheld. The appeal of Basant Lal has abated since the legal representatives to his estate have not been impleaded, and the record of the appeal is defective. That is not denied by the appellants. But it is urged that this Court is competent to set aside an order of the High Court in its entirety on the ground that it is not sustainable in law and in any event to set aside the order in so far as it affects the claim of appellants 1 and 3 and the third respondent. Support was sought to be derived for the first contention from O. 41 R. 4 of the Code of Civil Procedure and it was urged that even if the decree be assumed to have proceeded on a ground common to all the sureties, it is open to any one or more of the sureties to appeal from the order and the appellate Court may reverse or vary the decree in favour of all the sureties.sureties.6. Basant Lal died after the order of the High Court under appeal. he had preferred an appeal, but since the legal representatives to his estate have not been brought on record, his appeal has abated. The order of the High Court holding that the sureties are liable to satisfy the claim notwithstanding the objections raised by Basant Lal has become final. In the appeal filed by the appellates 1 and 3 if this Court holds that the High Court was in error in deciding that the surety bond was not enforceable because it was not registered, or that the first respondent has done some act which has discharged the sureties from liability under the bond, there would unquestionably be two inconsistent orders - one passed by the High Court holding that the surety bond was enforceable, and the other, the view of this Court that it is not22 R. 12 of the Code of Civil Procedure provides that nothing in rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order. On the true interpretation of this rule there is conflict of opinion in the High Courts. In some cases the view has prevalied that appeals from order in execution proceedings are not subject to rules 3, 4 and 8 of O. 22 Code of Civil Procedure and failure to implead heirs and legal representatives of a deceased party in such an appeal will not be visited by an order of abatement. In other cases it has been held that an appeal against an order in execution is not "a proceeding in execution of a decree" and that such a appeal will abate if the heirs are not brought on record within the period of limitation, and that Rs. 12 has no application to appeals. In this appeal it is not necessary to resolve this conflict, for appeals to this Court are governed by the rules contained in O. 16 of the Supreme Court Rules. 1950, and by R.Liability of the sureties is under the law joint and several. If a creditor seeks to enforce the surety bond against some only of the joint sureties, the other sureties will not on that account be discharged: nor will release by the creditor of one of them discharge the other: vide Sections 137 and 138 of the Contract Act. But the fact that the surety bond is enforceable against each surety severally, and that it is open to the creditor to release one or more of the joint sureties, does not alter the true character of an adjudication of the Court when proceedings are commenced to enforce the covenants of the bond against all the sureties. We are not concerned in this appeal with the privilege which a creditor may exercise, but with the effect of an adjudication which the Court has made in a proceeding to enforce the covenant of the Bond. The mere fact that the obligation arising under a covenant may be enforced severally against all the covenantors does not make the liability of each covenantor distinct. It is true that in enforcement of the claim of the decree holder the properties belonging to the sureties individually may be sold separately. But that is because the liability arises under distinct transactions.10. It must, therefore be held that the appeal has abated, because the representatives of the second appellant Basant Lal have not been brought on record within the time permitted by R. 14 of O. 16. of the Supreme Court Rules, 1950, and the delay in filing the petition to bring the representatives on record has not been condoned. | 0 | 2,661 | 833 | ### 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:
and the deceased respondent; (b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the court and (c) when the decree against the surviving respondents, if the appeal succeeds, be ineffective that is to say it could not be successfully executed.The abatement of an appeal against the deceased respondent means not only that the decree between the appellant and the deceased respondent has become final, but also as a necessary corollary that the appellate court cannot in any way modify that decree directly or indirectly.When the decree in favour of the respondents is joint and indivisible, the appeal against the respondents other than the deceased respondent cannot be proceeded with if the appeal against the deceased respondent has abated."The principle of this judgment was affirmed in Rameshwar Prasads case (1964) 3 SCR 549 : (AIR 1963 SC 1901 ) and later in an unreported judgment in Kishan Singh v. Nidhan Singh, C. A. No. 563 of 1962, dated 14-12-1964 (SC). It may be pointed out that the three tests suggested by Raghubar Dayal, J., in Nathu Rams case (1962) 2 SCR 636 ; (AIR 1962 SC 89 ) are not cumulative tests. Even if one of them is satisfied, the Court say, having regard to all the circumstances, hold that the appeal has abated in its entirety.8. But counsel for the appellants has contended that the rule laid down by this Court in Nathu Rams case (1962) 2 SCR 636 ; (AIR 1962 SC 89 ) and other cases has no application to this appeal firstly, because this appeal arises from an order in execution proceeding and rules as to abatement by the express provision contained in O. 22 R. 12 Code of Civil Procedure have no application to appeals in an execution proceeding, and secondly, that in cases in which the order or decree appealed against gives rise to a liability which is joint and several it is open to one of the persons declared so liable to prosecute an appeal in so far as he is concerned, notwithstanding abatement of the appeal of a co-obliges. Order 22 R. 12 of the Code of Civil Procedure provides that nothing in rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order. On the true interpretation of this rule there is conflict of opinion in the High Courts. In some cases the view has prevalied that appeals from order in execution proceedings are not subject to rules 3, 4 and 8 of O. 22 Code of Civil Procedure and failure to implead heirs and legal representatives of a deceased party in such an appeal will not be visited by an order of abatement. In other cases it has been held that an appeal against an order in execution is not "a proceeding in execution of a decree" and that such a appeal will abate if the heirs are not brought on record within the period of limitation, and that Rs. 12 has no application to appeals. In this appeal it is not necessary to resolve this conflict, for appeals to this Court are governed by the rules contained in O. 16 of the Supreme Court Rules. 1950, and by R. 14 thereof it is provided. :"An application to bring on record the legal representative of a deceased appellant or respondent shall be made within ninety days of the death of the said appellant or respondent :Provided that in computing the said period the time taken in obtaining a certificate from the High Court shall be excluded." The rule is explicit and makes no exemption in favour of any class of appeals. It is true that R. 14-A of O. 16 of the Supreme Court Rules, 1950, provides that :"The provisions of Order XXII of the Code relating to abatement and of Article 171 in the First Schedule to the Indian Limitation Act, 1908 (IX of 1908), shall, so far as may be applicable, apply to appeals and proceedings under rule 12 and rule 18 in the High Court and in the Supreme Court, and thereby the provisions of O. 86 relating to abatement of appeals are attracted. But there is no warrant for holding that any class of appeals filed in this Court is exempt from the operation of R. 14.9. Liability of the sureties is under the law joint and several. If a creditor seeks to enforce the surety bond against some only of the joint sureties, the other sureties will not on that account be discharged: nor will release by the creditor of one of them discharge the other: vide Sections 137 and 138 of the Contract Act. But the fact that the surety bond is enforceable against each surety severally, and that it is open to the creditor to release one or more of the joint sureties, does not alter the true character of an adjudication of the Court when proceedings are commenced to enforce the covenants of the bond against all the sureties. We are not concerned in this appeal with the privilege which a creditor may exercise, but with the effect of an adjudication which the Court has made in a proceeding to enforce the covenant of the Bond. The mere fact that the obligation arising under a covenant may be enforced severally against all the covenantors does not make the liability of each covenantor distinct. It is true that in enforcement of the claim of the decree holder the properties belonging to the sureties individually may be sold separately. But that is because the liability arises under distinct transactions.10. It must, therefore be held that the appeal has abated, because the representatives of the second appellant Basant Lal have not been brought on record within the time permitted by R. 14 of O. 16. of the Supreme Court Rules, 1950, and the delay in filing the petition to bring the representatives on record has not been condoned.
### Response:
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### Explanation:
In our view this objection must be upheld. The appeal of Basant Lal has abated since the legal representatives to his estate have not been impleaded, and the record of the appeal is defective. That is not denied by the appellants. But it is urged that this Court is competent to set aside an order of the High Court in its entirety on the ground that it is not sustainable in law and in any event to set aside the order in so far as it affects the claim of appellants 1 and 3 and the third respondent. Support was sought to be derived for the first contention from O. 41 R. 4 of the Code of Civil Procedure and it was urged that even if the decree be assumed to have proceeded on a ground common to all the sureties, it is open to any one or more of the sureties to appeal from the order and the appellate Court may reverse or vary the decree in favour of all the sureties.sureties.6. Basant Lal died after the order of the High Court under appeal. he had preferred an appeal, but since the legal representatives to his estate have not been brought on record, his appeal has abated. The order of the High Court holding that the sureties are liable to satisfy the claim notwithstanding the objections raised by Basant Lal has become final. In the appeal filed by the appellates 1 and 3 if this Court holds that the High Court was in error in deciding that the surety bond was not enforceable because it was not registered, or that the first respondent has done some act which has discharged the sureties from liability under the bond, there would unquestionably be two inconsistent orders - one passed by the High Court holding that the surety bond was enforceable, and the other, the view of this Court that it is not22 R. 12 of the Code of Civil Procedure provides that nothing in rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order. On the true interpretation of this rule there is conflict of opinion in the High Courts. In some cases the view has prevalied that appeals from order in execution proceedings are not subject to rules 3, 4 and 8 of O. 22 Code of Civil Procedure and failure to implead heirs and legal representatives of a deceased party in such an appeal will not be visited by an order of abatement. In other cases it has been held that an appeal against an order in execution is not "a proceeding in execution of a decree" and that such a appeal will abate if the heirs are not brought on record within the period of limitation, and that Rs. 12 has no application to appeals. In this appeal it is not necessary to resolve this conflict, for appeals to this Court are governed by the rules contained in O. 16 of the Supreme Court Rules. 1950, and by R.Liability of the sureties is under the law joint and several. If a creditor seeks to enforce the surety bond against some only of the joint sureties, the other sureties will not on that account be discharged: nor will release by the creditor of one of them discharge the other: vide Sections 137 and 138 of the Contract Act. But the fact that the surety bond is enforceable against each surety severally, and that it is open to the creditor to release one or more of the joint sureties, does not alter the true character of an adjudication of the Court when proceedings are commenced to enforce the covenants of the bond against all the sureties. We are not concerned in this appeal with the privilege which a creditor may exercise, but with the effect of an adjudication which the Court has made in a proceeding to enforce the covenant of the Bond. The mere fact that the obligation arising under a covenant may be enforced severally against all the covenantors does not make the liability of each covenantor distinct. It is true that in enforcement of the claim of the decree holder the properties belonging to the sureties individually may be sold separately. But that is because the liability arises under distinct transactions.10. It must, therefore be held that the appeal has abated, because the representatives of the second appellant Basant Lal have not been brought on record within the time permitted by R. 14 of O. 16. of the Supreme Court Rules, 1950, and the delay in filing the petition to bring the representatives on record has not been condoned.
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Bombay Municipal Corporation Vs. Life Insurance Corporation Of India, Bombay | in the definition. The expression "permitted increase" is defined by S. 5 (7) to mean an increase in rent permitted under the provisions of the Act. Section 5 (3) defines the word "landlord" as meaning any person who is for the time being receiving or entitled to receive rent in respect of any premises etc. Section 5 (11) gives the meaning of the word "tenant". According to that meaning a tenant would be any person by whom or on whose account rent is payable for any premises and includes such persons as are specifically mentioned in sub-cls. (a), (aa) and (b). Section 7 provides for increase in rent on account of improvements or structural alteration of the premises which have been made with the consent of the tenant and such increase is not to be deemed an increase for the purpose of S. 7. Under S. 10 a landlord can increase the rent on account of payment of rates, cess or taxes imposed and levied by a local authority. Such an increase again is not to be deemed to be an increase for the purpose of S. 7. Similarly under section 10AA the landlord can increase the rent on account of payment of enhanced rates etc. permitted after certain date in particular areas. Any increase in this section cannot be deemed to be an increase for the purpose of S. 7. 5. The High Court was alive to the fact that the mention of increase in Ss. 10, 10A and 10AA referred to increases in rent but it was felt that the section in express terms provided that such an increase shall not be deemed to be an increase in rent under Section 7. According to the High Court it followed that what was allowed to the landlord in addition to the standard rent was not an increase in the rent but a provision was made in a specified way for the transfer of the burden of the tax to the tenants because of the rigorous of the Rent Act:"The other factor which weighed with the High Court was that if the increase in rates was to be treated as a part of the rent which would enable the Municipal Corporation to increase the valuation on every occasion when there was increase in rates and taxes this would "land us again into a cycle of increments every year from figure to figure never intended by the framers either by the Rent Act or of the Municipal Act." 6. It is necessary to set out Section 7 of the Rent Act at this stage:-"Except where the rent is liable to periodical increment by virtue of an agreement entered into before the first day of September 1940, it shall not be lawful to claim or receive on account of rent for any premises any increase above the standard rent, unless the landlord was, before the coming into operation of this Act, entiled to recover such increase................ under the provisions of this Act." It is quite clear that Sec. 7 does not prohibit the recovery of the increase to which landlord may be entitled under the provisions of the Act in addition to the standard rent.The obvious implication of the definition of "permitted increase" in Section 5 (7) is that such an increase becomes a part of the rent.The language which has been employed in Sections 9, 10 and 10-AA seems to indicate that the Legislature treated the permitted increase as a part of the rent which the landlord would be entitled to receive from the tenant.In Corpn. of Calcutta v. Smt. Padma Devi, 1962-3 SCR 49 = (AIR 1962 SC 151 ) the question arose whether the Municipal Corporation had the power to fix the annual valuation on a figure higher than the standard rent. It was held that on a reading of the provisions of Section 127 (a) of the Calcutta Municipal Act 1923 the rental value could not be fixed higher than the standard rent under the Rent Control Act. It was further held that the words "gross annual rent at which the land or buildings might at the time of assessment reasonably be expected to let from year to year" in Section 127 (a) implied that the rent which the landlord might realize if the house was let was the basis for fixing the annual valuation of the buildings. Thus the criterion was the rent realizable by the landlord and not the valuation of the holding in the hands of the tenant.Even applying that criterion the rent realizable, in the present case, would be the standard rent together with the permitted increase on account of the levy of educational cess.As observed in Patel Gordhandas Hargovindas v. Municipal Commr., Ahmedabad, 1964-2 SCR 608 = (AIR 1963 SC 1742 ) there are three modes of determining the annual or rateable value of lands or buildings. The first is the actual rent fetched by the land or buildings where it is actually let. The second is rent based on hypothetical tenancy where it is not let and the third is by valuation based on capital value from which the annual value has to be found by applying a suitable percentage, where either of the first two modes is not available.In the present case admittedly the actual rent of the building in question which is being fetched comprises the standard rent and the permitted increase. The building can well be said to be reasonably expected to be let from year to year at the figure arrived at by adding the permitted increase to the standard rent. The valuation had, therefore, to be arrived at after taking into account the amount of educational cess which was levied by the Corporation. Even if such a conclusion leads to some kind of inconvenience of variation in valuation at frequent intervals that can be no consideration for not giving full effect and meaning to the provisions of the Act of 1888 and the Rent Act under consideration. | 1[ds]It is quite clear that Sec. 7 does not prohibit the recovery of the increase to which landlord may be entitled under the provisions of the Act in addition to the standard rent.The obvious implication of the definition of "permitted increase" in Section 5 (7) is that such an increase becomes a part of the rent.The language which has been employed in Sections 9, 10 and 10-AA seems to indicate that the Legislature treated the permitted increase as a part of the rent which the landlord would be entitled to receive from the tenant.In Corpn. of Calcutta v. Smt. Padma Devi, 1962-3 SCR 49 = (AIR 1962 SC 151 ) the question arose whether the Municipal Corporation had the power to fix the annual valuation on a figure higher than the standard rent. It was held that on a reading of the provisions of Section 127 (a) of the Calcutta Municipal Act 1923 the rental value could not be fixed higher than the standard rent under the Rent Control Act. It was further held that the words "gross annual rent at which the land or buildings might at the time of assessment reasonably be expected to let from year to year" in Section 127 (a) implied that the rent which the landlord might realize if the house was let was the basis for fixing the annual valuation of the buildings. Thus the criterion was the rent realizable by the landlord and not the valuation of the holding in the hands of the tenant.Even applying that criterion the rent realizable, in the present case, would be the standard rent together with the permitted increase on account of the levy of educational cess.As observed in Patel Gordhandas Hargovindas v. Municipal Commr., Ahmedabad, 1964-2 SCR 608 = (AIR 1963 SC 1742 ) there are three modes of determining the annual or rateable value of lands or buildings. The first is the actual rent fetched by the land or buildings where it is actually let. The second is rent based on hypothetical tenancy where it is not let and the third is by valuation based on capital value from which the annual value has to be found by applying a suitable percentage, where either of the first two modes is not available.In the present case admittedly the actual rent of the building in question which is being fetched comprises the standard rent and the permitted increase. The building can well be said to be reasonably expected to be let from year to year at the figure arrived at by adding the permitted increase to the standard rent. The valuation had, therefore, to be arrived at after taking into account the amount of educational cess which was levied by the Corporation. Even if such a conclusion leads to some kind of inconvenience of variation in valuation at frequent intervals that can be no consideration for not giving full effect and meaning to the provisions of the Act of 1888 and the Rent Act under consideration. | 1 | 1,770 | 537 | ### 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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in the definition. The expression "permitted increase" is defined by S. 5 (7) to mean an increase in rent permitted under the provisions of the Act. Section 5 (3) defines the word "landlord" as meaning any person who is for the time being receiving or entitled to receive rent in respect of any premises etc. Section 5 (11) gives the meaning of the word "tenant". According to that meaning a tenant would be any person by whom or on whose account rent is payable for any premises and includes such persons as are specifically mentioned in sub-cls. (a), (aa) and (b). Section 7 provides for increase in rent on account of improvements or structural alteration of the premises which have been made with the consent of the tenant and such increase is not to be deemed an increase for the purpose of S. 7. Under S. 10 a landlord can increase the rent on account of payment of rates, cess or taxes imposed and levied by a local authority. Such an increase again is not to be deemed to be an increase for the purpose of S. 7. Similarly under section 10AA the landlord can increase the rent on account of payment of enhanced rates etc. permitted after certain date in particular areas. Any increase in this section cannot be deemed to be an increase for the purpose of S. 7. 5. The High Court was alive to the fact that the mention of increase in Ss. 10, 10A and 10AA referred to increases in rent but it was felt that the section in express terms provided that such an increase shall not be deemed to be an increase in rent under Section 7. According to the High Court it followed that what was allowed to the landlord in addition to the standard rent was not an increase in the rent but a provision was made in a specified way for the transfer of the burden of the tax to the tenants because of the rigorous of the Rent Act:"The other factor which weighed with the High Court was that if the increase in rates was to be treated as a part of the rent which would enable the Municipal Corporation to increase the valuation on every occasion when there was increase in rates and taxes this would "land us again into a cycle of increments every year from figure to figure never intended by the framers either by the Rent Act or of the Municipal Act." 6. It is necessary to set out Section 7 of the Rent Act at this stage:-"Except where the rent is liable to periodical increment by virtue of an agreement entered into before the first day of September 1940, it shall not be lawful to claim or receive on account of rent for any premises any increase above the standard rent, unless the landlord was, before the coming into operation of this Act, entiled to recover such increase................ under the provisions of this Act." It is quite clear that Sec. 7 does not prohibit the recovery of the increase to which landlord may be entitled under the provisions of the Act in addition to the standard rent.The obvious implication of the definition of "permitted increase" in Section 5 (7) is that such an increase becomes a part of the rent.The language which has been employed in Sections 9, 10 and 10-AA seems to indicate that the Legislature treated the permitted increase as a part of the rent which the landlord would be entitled to receive from the tenant.In Corpn. of Calcutta v. Smt. Padma Devi, 1962-3 SCR 49 = (AIR 1962 SC 151 ) the question arose whether the Municipal Corporation had the power to fix the annual valuation on a figure higher than the standard rent. It was held that on a reading of the provisions of Section 127 (a) of the Calcutta Municipal Act 1923 the rental value could not be fixed higher than the standard rent under the Rent Control Act. It was further held that the words "gross annual rent at which the land or buildings might at the time of assessment reasonably be expected to let from year to year" in Section 127 (a) implied that the rent which the landlord might realize if the house was let was the basis for fixing the annual valuation of the buildings. Thus the criterion was the rent realizable by the landlord and not the valuation of the holding in the hands of the tenant.Even applying that criterion the rent realizable, in the present case, would be the standard rent together with the permitted increase on account of the levy of educational cess.As observed in Patel Gordhandas Hargovindas v. Municipal Commr., Ahmedabad, 1964-2 SCR 608 = (AIR 1963 SC 1742 ) there are three modes of determining the annual or rateable value of lands or buildings. The first is the actual rent fetched by the land or buildings where it is actually let. The second is rent based on hypothetical tenancy where it is not let and the third is by valuation based on capital value from which the annual value has to be found by applying a suitable percentage, where either of the first two modes is not available.In the present case admittedly the actual rent of the building in question which is being fetched comprises the standard rent and the permitted increase. The building can well be said to be reasonably expected to be let from year to year at the figure arrived at by adding the permitted increase to the standard rent. The valuation had, therefore, to be arrived at after taking into account the amount of educational cess which was levied by the Corporation. Even if such a conclusion leads to some kind of inconvenience of variation in valuation at frequent intervals that can be no consideration for not giving full effect and meaning to the provisions of the Act of 1888 and the Rent Act under consideration.
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### Explanation:
It is quite clear that Sec. 7 does not prohibit the recovery of the increase to which landlord may be entitled under the provisions of the Act in addition to the standard rent.The obvious implication of the definition of "permitted increase" in Section 5 (7) is that such an increase becomes a part of the rent.The language which has been employed in Sections 9, 10 and 10-AA seems to indicate that the Legislature treated the permitted increase as a part of the rent which the landlord would be entitled to receive from the tenant.In Corpn. of Calcutta v. Smt. Padma Devi, 1962-3 SCR 49 = (AIR 1962 SC 151 ) the question arose whether the Municipal Corporation had the power to fix the annual valuation on a figure higher than the standard rent. It was held that on a reading of the provisions of Section 127 (a) of the Calcutta Municipal Act 1923 the rental value could not be fixed higher than the standard rent under the Rent Control Act. It was further held that the words "gross annual rent at which the land or buildings might at the time of assessment reasonably be expected to let from year to year" in Section 127 (a) implied that the rent which the landlord might realize if the house was let was the basis for fixing the annual valuation of the buildings. Thus the criterion was the rent realizable by the landlord and not the valuation of the holding in the hands of the tenant.Even applying that criterion the rent realizable, in the present case, would be the standard rent together with the permitted increase on account of the levy of educational cess.As observed in Patel Gordhandas Hargovindas v. Municipal Commr., Ahmedabad, 1964-2 SCR 608 = (AIR 1963 SC 1742 ) there are three modes of determining the annual or rateable value of lands or buildings. The first is the actual rent fetched by the land or buildings where it is actually let. The second is rent based on hypothetical tenancy where it is not let and the third is by valuation based on capital value from which the annual value has to be found by applying a suitable percentage, where either of the first two modes is not available.In the present case admittedly the actual rent of the building in question which is being fetched comprises the standard rent and the permitted increase. The building can well be said to be reasonably expected to be let from year to year at the figure arrived at by adding the permitted increase to the standard rent. The valuation had, therefore, to be arrived at after taking into account the amount of educational cess which was levied by the Corporation. Even if such a conclusion leads to some kind of inconvenience of variation in valuation at frequent intervals that can be no consideration for not giving full effect and meaning to the provisions of the Act of 1888 and the Rent Act under consideration.
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Dinesh Borthakur Vs. State Of Assam | commission of such a ghastly crime would run away from the scene of occurrence but he did not do so. Even if he was to pretend that he did not know about the said occurrence, he could have stayed back in his office waiting for the call of his neighbours about the death of his wife and daughter.46. His conduct or reaction (or lack of it) by itself, thus, cannot be a ground for arriving at a conclusion that he is guilty of commission of crime. Formation of another opinion is also possible. It may or may not be that the appellant, in presence of PW1, told "Mala should not have done that". The same by itself does not take us anywhere. Assuming that he did so, although according to the Investigating Officer, no such statement was made by PW1 before him, the same merely indicated that something had happened between the mother and the daughter in the morning which was not to the liking of the appellant.47. We are surprised to notice the introduction of a story by the prosecution through PW4. Even if the conduct of the appellant demonstrated that he had been feeling sorry for the death of his daughter and not for his wife, it does not take us any further to arrive at one conclusion or the other.48. More surprising is the introduction of the purported incriminating circumstances through some of the prosecution witnesses in regard to the location of the dead body and the manner in which things were discovered by some of the prosecution witnesses, although neither the Investigating Officer had noticed the same nor his attention was drawn thereto by the said witnesses or others.49. We have noticed hereto before that the prosecution witnesses did not make any statement in regard to the purported reaction of the appellant before the Investigating Officer.50. The prosecution made an attempt to show that the deaths of the victims were caused by administration of poison and/or strangulation. The bottle containing pesticide was found in the wash basin along with a glass inside the house. There is nothing on record to show that the appellant had purchased pesticide or brought it home. No fingerprint of the appellant was taken to show that it was he who had used the bottle or the glass for the said purpose. No incriminating evidence linking the appellant in regard to administration of poison/pesticide has been brought on record.51. In Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116] , this Court opined that before arriving at the finding as regards the guilt of the appellant, the following circumstances must be established: "(i) the circumstances from which the conclusion of guilt is to be drawn should be fully established;(ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused and should not be explainable on any other hypothesis except that accused is guilty;(iii) the circumstances should be conclusive nature;(iv) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with innocence of the accused on preponderance of probability." In that case, it was categorically held that the prosecution in a case of commission of murder by poisoning must bring in record some evidence linking the accused therewith, stating: "In the instant case, while two ingredients have been proved but two have not. In the first place, it has no doubt been proved that Manju died of potassium cyanide and secondly, it has also been proved that there was an opportunity to administer the poison. It has, however, not been proved by any evidence that the appellant had the poison in his possession." It was furthermore observed: ";2. That, at any rate, the evidence clearly shows that two views are possible one pointing to the guilt of the accused and the other leading to his innocence. It may be very likely that the appellant may have administered the poison (potassium Cyanide) to Manju but at the same time a fair possibility that she herself committed suicide cannot be safely excluded or eliminated. Hence, on this ground alone the appellant is entitled to the benefit of doubt resulting in his acquittal.3. The prosecution has miserably failed to prove one of the most essential ingredients of a case of death caused by administration of poison, i.e., possession of poison with the accused (either by direct or circumstantial evidence) and on this ground alone the prosecution must fail." 52. First Information Report might have been lodged by the appellant only when the police arrived at the scene of occurrence. The Investigating Officer came to the place of occurrence at about 4.45 pm. PW1 categorically stated that he had asked someone to inform the police. When he did not comply therewith, then only he did so. If, in the aforementioned situation, the appellant had not informed the officer-in-charge of the police station, no presumption of adverse inference could be raised against him. There was no delay on the part of the appellant in informing the police, particularly, when he had informed PW1 who, in turn, informed the police.53. The learned Trial Judge has also relied upon the evidence of PW10, the owner of a Pan shop, who testified that the appellant had not visited the Pan shop on that day. His evidence, in our opinion, is not at all reliable. He admitted in his cross-examination that in the forenoon, his brother used to sit at the shop and, thus, his inference that the appellant used to take Pan regularly cannot be trustworthy.54. We, therefore, are of the firm view that circumstantial evidence leading to the guilt of the appellant have not been established by the prosecution, the judgment of the conviction and sentence, therefore, cannot be sustained. They are set aside accordingly. We can only record our distress that even in a case of this nature, appellant had to remain in custody for a period of four years.55 | 1[ds]33. A finding of guilt cannot be based on a presumption. Before arriving at an inference that the appellant has committed an offence, existence of materials therefor ought to have been found. No motive for committing the crime was identified which, in the facts and circumstances of the case, was relevant. How the links in the chain of the circumstances led to only one conclusion that the appellant and the appellant alone was guilty of commission of the offence has not been spelt out by the learned Trial Judge.34. The courts below did not record any finding on the basis of any material brought on record by the prosecution that the appellant was seen at the place of occurrence of crime between 11.30 am to 4/5.00 pm. The least the prosecution, in this behalf, could do was to examine the co-employees of the appellant who had been working in his office to find out as to when he had reached his office or whether he had left his office at any time prior to 4.00 pm. No evidence was also led to bring on record the distance between the house of the appellant and his office. No witness also deposed in regard to the mode of his travelling. He had been seen going out of his house for his place of work by the prosecution witnesses. PW1 found him calling the name of his wife and the adopted daughter for opening of the main door. He went to the backside of the premises only when PW1 expressed his opinion that they might have been sleeping.35. The time lag between the appellants calling PW1 for the first time and the second time was a few minutes. The prosecution did not suggest nor any finding has been arrived at that the offence could have been committed during the said interval.36. PW1 on seeing the deceased Mala lying on the bed gathered an impression that the matter was not normal. Further, PW1 in his evidence states that the accused shook the leg of the child Munni stating that she was also not moving. It is the admitted case of the prosecution that the accused had asked PW1 to come and have a look PW1 himself was uncertain as to whether Mala and child Munni were already dead or not. The conduct of the appellant, so far his initial reaction to the occurrence is concerned, appears to be most natural as he suspected that something was wrong but was unsure thereabout at the same time. In any view of the matter, it does not give rise to an inference which is consistent with the hypothesis of guilt.37. At this juncture, we may place on record that PW6, in his evidence, in no uncertain terms, admitted that the scraping of nails taken from the two deceased did not correspond to the scrapping of skin taken from the body of the appellant. The prosecution, therefore, did not bring on record any material to show that the deceased had put up any resistance when the appellant had allegedly tried to commit the crime. Medical evidence brought on record also does not conclusively show that Mala Borthakur suffered a homicidal death as is evident from the autopsy report, which we have noticed hereinbefore.38. The mainstay of the prosecution case is the evidence of PW6, PW8, PW9 and PW13 who testified about the sniffer dogs staying near the accused and the reaction of the accused was not natural as he did not exhibit his emotion or sadness despite the fact that a shocking incident had occurred. So far as the evidence relating to the reaction of sniffer dog is concerned, this Court in Abdul Rajak Murtaja Dafedar v. State of Maharashtra [(1969 (2) SCC 234 stated the law, thusare three objections which are usually advanced against reception of the evidence of dog tracking. First since it is manifest that the dog cannot go into the box and give his evidence on oath and consequently submit himself to cross-examination, the dogs human companion must go into the box and the report the dogs evidence and this is clearly herarsay. Secondly, there is a feeling that in criminal cases the life and liberty of a human being should not be dependent on canineagain in Gade Lakshmi Mangaraju alias Ramesh v. State of A.P [2001 (6) SCC 205 ], this Courtare inherent frailties in the evidence based on sniffer or tracker dog. The possibility of an error on the part of the dog or its master is the first among them. The possibility of a misrepresentation or a wrong inference from the behaviour of the dog could not be ruled out. Last, but not the least, is the fact that from scientific point of view, there is little knowledge and much uncertainty as to the precise faculties which enable police dogs to track and identify criminals. Investigation exercises can afford to make attempts or forays with the help of canine faculties but judicial exercise can ill afford them.The law in this behalf, therefore, is settled that while the services of a sniffer dog may be taken for the purpose of investigation, its faculties cannot be taken as evidence for the purpose of establishing the guilt of an accused.40. Let us now consider another aspect of the matter viz., the so called abnormal conduct on the part of the appellant. PW1 was considered to be the star witness by the prosecution. He was in his house upto 11.30 am. It can safely be inferred from his deposition that he had come back to his residence much prior to the appellant. He had not noticed any abnormality in the locality. Other witnesses who were the neighbours of the appellant and/or the shop owners who have their shops on the other side of the road were also not aware of any incident before the appellant reached his residence. PW1 and PW2, in their deposition, did not notice any unusual conduct on the part of the appellant or the deceased Mala on that day. The only unusual thing noticed by PW1, PW2 and PW3 was the abnormal crying of Munni in the morning for a long time. Something, therefore, must have happened between the mother and the daughter. It is difficult to believe that a six year old girl would cry so loudly and that too for such a long span of time so as to draw the attention of the neighbours only because the mother was giving her a bath. Something, therefore, must have happened which the deceased was trying to hide.41. We fail to see any abnormality in the initial reaction of the appellant. He knocked at the door vigorously. He called the deceased in a loud voice which attracted the attention of PW1. On a query made by the latter, he had stated that they had not been opening the door and only when PW1 opined that they must have been sleeping, he went to the rear side of the premises and discovered the dead bodies lying on the bed and again without any loss of time called PW1. PW1, in his cross-examination, admitted that reactions vary from person to person. Absence of any exhibition of sadness on the part of the appellant, according to PW1, was not the conduct of a normal human being. Manjuri Borthakurs evidence, however, is otherwise.42. We may notice that this Court in Rana Partap and others vs. State of Haryana reported in [1983 (3) SCC 327 ]another reason given by the learned Sessions Judge to doubt the presence of the witnesses was that their conduct in not going to the rescue of the deceased when he was in the clutches of the assailants was unnatural. We must say that the comment is most unreal. Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginativealso Marwadi Kishor Parmanand and Another Vs. State of Gujarat [1994(4)SCC 549 ] and State of U.P. Vs. Devendra Singh [2004 (10) SCC 616 )].43. No hard and fast rule having any universal application with regard to the reaction of a person in a given circumstance can, thus, be laid down. One person may lose equilibrium and balance of mind, but, another may remain a silent spectator till he is able to reconcile himself and then react in his own way.44. Thus, merely because the appellant did not cry or weep on witnessing the dead bodies of his wife and daughter, cannot be made the basis for informing his guilt.45. If he had gone to his office and come back therefrom between 11.30 am till 4/5.00 pm, the matter might have been different. If the theory that he could have committed the murder within a couple of minutes is ruled out, we fail to see on what basis even a suspicion could have been raised that the appellant had committed the crime. It is not the case of the prosecution that the deceased were last seen in the company of the appellant. Nobody had seen him going inside his house or coming out at the time of or near about the commission of the crime. The matter might have been different if some evidence had been introduced to suggest that the offence was committed sometime between 11.30 am and 4/5.00 pm. Ordinarily, an accused person after commission of such a ghastly crime would run away from the scene of occurrence but he did not do so. Even if he was to pretend that he did not know about the said occurrence, he could have stayed back in his office waiting for the call of his neighbours about the death of his wife and daughter.46. His conduct or reaction (or lack of it) by itself, thus, cannot be a ground for arriving at a conclusion that he is guilty of commission of crime. Formation of another opinion is also possible. It may or may not be that the appellant, in presence of PW1, told "Mala should not have done that". The same by itself does not take us anywhere. Assuming that he did so, although according to the Investigating Officer, no such statement was made by PW1 before him, the same merely indicated that something had happened between the mother and the daughter in the morning which was not to the liking of the appellant.47. We are surprised to notice the introduction of a story by the prosecution through PW4. Even if the conduct of the appellant demonstrated that he had been feeling sorry for the death of his daughter and not for his wife, it does not take us any further to arrive at one conclusion or the other.48. More surprising is the introduction of the purported incriminating circumstances through some of the prosecution witnesses in regard to the location of the dead body and the manner in which things were discovered by some of the prosecution witnesses, although neither the Investigating Officer had noticed the same nor his attention was drawn thereto by the said witnesses or others.49. We have noticed hereto before that the prosecution witnesses did not make any statement in regard to the purported reaction of the appellant before the Investigating Officer.50. The prosecution made an attempt to show that the deaths of the victims were caused by administration of poison and/or strangulation. The bottle containing pesticide was found in the wash basin along with a glass inside the house. There is nothing on record to show that the appellant had purchased pesticide or brought it home. No fingerprint of the appellant was taken to show that it was he who had used the bottle or the glass for the said purpose. No incriminating evidence linking the appellant in regard to administration of poison/pesticide has been brought on record.51. In Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116] , this Court opined that before arriving at the finding as regards the guilt of the appellant, the following circumstances must bethe circumstances from which the conclusion of guilt is to be drawn should be fully established;(ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused and should not be explainable on any other hypothesis except that accused is guilty;(iii) the circumstances should be conclusive nature;(iv) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with innocence of the accused on preponderance ofthat case, it was categorically held that the prosecution in a case of commission of murder by poisoning must bring in record some evidence linking the accused therewith,the instant case, while two ingredients have been proved but two have not. In the first place, it has no doubt been proved that Manju died of potassium cyanide and secondly, it has also been proved that there was an opportunity to administer the poison. It has, however, not been proved by any evidence that the appellant had the poison in his;2. That, at any rate, the evidence clearly shows that two views are possible one pointing to the guilt of the accused and the other leading to his innocence. It may be very likely that the appellant may have administered the poison (potassium Cyanide) to Manju but at the same time a fair possibility that she herself committed suicide cannot be safely excluded or eliminated. Hence, on this ground alone the appellant is entitled to the benefit of doubt resulting in his acquittal.3. The prosecution has miserably failed to prove one of the most essential ingredients of a case of death caused by administration of poison, i.e., possession of poison with the accused (either by direct or circumstantial evidence) and on this ground alone the prosecution must fail.First Information Report might have been lodged by the appellant only when the police arrived at the scene of occurrence. The Investigating Officer came to the place of occurrence at about 4.45 pm. PW1 categorically stated that he had asked someone to inform the police. When he did not comply therewith, then only he did so. If, in the aforementioned situation, the appellant had not informed the officer-in-charge of the police station, no presumption of adverse inference could be raised against him. There was no delay on the part of the appellant in informing the police, particularly, when he had informed PW1 who, in turn, informed the police.53. The learned Trial Judge has also relied upon the evidence of PW10, the owner of a Pan shop, who testified that the appellant had not visited the Pan shop on that day. His evidence, in our opinion, is not at all reliable. He admitted in his cross-examination that in the forenoon, his brother used to sit at the shop and, thus, his inference that the appellant used to take Pan regularly cannot be trustworthy.54. We, therefore, are of the firm view that circumstantial evidence leading to the guilt of the appellant have not been established by the prosecution, the judgment of the conviction and sentence, therefore, cannot be sustained. They are set aside accordingly. We can only record our distress that even in a case of this nature, appellant had to remain in custody for a period of four years. | 1 | 5,228 | 2,897 | ### Instruction:
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### Input:
commission of such a ghastly crime would run away from the scene of occurrence but he did not do so. Even if he was to pretend that he did not know about the said occurrence, he could have stayed back in his office waiting for the call of his neighbours about the death of his wife and daughter.46. His conduct or reaction (or lack of it) by itself, thus, cannot be a ground for arriving at a conclusion that he is guilty of commission of crime. Formation of another opinion is also possible. It may or may not be that the appellant, in presence of PW1, told "Mala should not have done that". The same by itself does not take us anywhere. Assuming that he did so, although according to the Investigating Officer, no such statement was made by PW1 before him, the same merely indicated that something had happened between the mother and the daughter in the morning which was not to the liking of the appellant.47. We are surprised to notice the introduction of a story by the prosecution through PW4. Even if the conduct of the appellant demonstrated that he had been feeling sorry for the death of his daughter and not for his wife, it does not take us any further to arrive at one conclusion or the other.48. More surprising is the introduction of the purported incriminating circumstances through some of the prosecution witnesses in regard to the location of the dead body and the manner in which things were discovered by some of the prosecution witnesses, although neither the Investigating Officer had noticed the same nor his attention was drawn thereto by the said witnesses or others.49. We have noticed hereto before that the prosecution witnesses did not make any statement in regard to the purported reaction of the appellant before the Investigating Officer.50. The prosecution made an attempt to show that the deaths of the victims were caused by administration of poison and/or strangulation. The bottle containing pesticide was found in the wash basin along with a glass inside the house. There is nothing on record to show that the appellant had purchased pesticide or brought it home. No fingerprint of the appellant was taken to show that it was he who had used the bottle or the glass for the said purpose. No incriminating evidence linking the appellant in regard to administration of poison/pesticide has been brought on record.51. In Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116] , this Court opined that before arriving at the finding as regards the guilt of the appellant, the following circumstances must be established: "(i) the circumstances from which the conclusion of guilt is to be drawn should be fully established;(ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused and should not be explainable on any other hypothesis except that accused is guilty;(iii) the circumstances should be conclusive nature;(iv) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with innocence of the accused on preponderance of probability." In that case, it was categorically held that the prosecution in a case of commission of murder by poisoning must bring in record some evidence linking the accused therewith, stating: "In the instant case, while two ingredients have been proved but two have not. In the first place, it has no doubt been proved that Manju died of potassium cyanide and secondly, it has also been proved that there was an opportunity to administer the poison. It has, however, not been proved by any evidence that the appellant had the poison in his possession." It was furthermore observed: ";2. That, at any rate, the evidence clearly shows that two views are possible one pointing to the guilt of the accused and the other leading to his innocence. It may be very likely that the appellant may have administered the poison (potassium Cyanide) to Manju but at the same time a fair possibility that she herself committed suicide cannot be safely excluded or eliminated. Hence, on this ground alone the appellant is entitled to the benefit of doubt resulting in his acquittal.3. The prosecution has miserably failed to prove one of the most essential ingredients of a case of death caused by administration of poison, i.e., possession of poison with the accused (either by direct or circumstantial evidence) and on this ground alone the prosecution must fail." 52. First Information Report might have been lodged by the appellant only when the police arrived at the scene of occurrence. The Investigating Officer came to the place of occurrence at about 4.45 pm. PW1 categorically stated that he had asked someone to inform the police. When he did not comply therewith, then only he did so. If, in the aforementioned situation, the appellant had not informed the officer-in-charge of the police station, no presumption of adverse inference could be raised against him. There was no delay on the part of the appellant in informing the police, particularly, when he had informed PW1 who, in turn, informed the police.53. The learned Trial Judge has also relied upon the evidence of PW10, the owner of a Pan shop, who testified that the appellant had not visited the Pan shop on that day. His evidence, in our opinion, is not at all reliable. He admitted in his cross-examination that in the forenoon, his brother used to sit at the shop and, thus, his inference that the appellant used to take Pan regularly cannot be trustworthy.54. We, therefore, are of the firm view that circumstantial evidence leading to the guilt of the appellant have not been established by the prosecution, the judgment of the conviction and sentence, therefore, cannot be sustained. They are set aside accordingly. We can only record our distress that even in a case of this nature, appellant had to remain in custody for a period of four years.55
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that the offence was committed sometime between 11.30 am and 4/5.00 pm. Ordinarily, an accused person after commission of such a ghastly crime would run away from the scene of occurrence but he did not do so. Even if he was to pretend that he did not know about the said occurrence, he could have stayed back in his office waiting for the call of his neighbours about the death of his wife and daughter.46. His conduct or reaction (or lack of it) by itself, thus, cannot be a ground for arriving at a conclusion that he is guilty of commission of crime. Formation of another opinion is also possible. It may or may not be that the appellant, in presence of PW1, told "Mala should not have done that". The same by itself does not take us anywhere. Assuming that he did so, although according to the Investigating Officer, no such statement was made by PW1 before him, the same merely indicated that something had happened between the mother and the daughter in the morning which was not to the liking of the appellant.47. We are surprised to notice the introduction of a story by the prosecution through PW4. Even if the conduct of the appellant demonstrated that he had been feeling sorry for the death of his daughter and not for his wife, it does not take us any further to arrive at one conclusion or the other.48. More surprising is the introduction of the purported incriminating circumstances through some of the prosecution witnesses in regard to the location of the dead body and the manner in which things were discovered by some of the prosecution witnesses, although neither the Investigating Officer had noticed the same nor his attention was drawn thereto by the said witnesses or others.49. We have noticed hereto before that the prosecution witnesses did not make any statement in regard to the purported reaction of the appellant before the Investigating Officer.50. The prosecution made an attempt to show that the deaths of the victims were caused by administration of poison and/or strangulation. The bottle containing pesticide was found in the wash basin along with a glass inside the house. There is nothing on record to show that the appellant had purchased pesticide or brought it home. No fingerprint of the appellant was taken to show that it was he who had used the bottle or the glass for the said purpose. No incriminating evidence linking the appellant in regard to administration of poison/pesticide has been brought on record.51. In Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116] , this Court opined that before arriving at the finding as regards the guilt of the appellant, the following circumstances must bethe circumstances from which the conclusion of guilt is to be drawn should be fully established;(ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused and should not be explainable on any other hypothesis except that accused is guilty;(iii) the circumstances should be conclusive nature;(iv) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with innocence of the accused on preponderance ofthat case, it was categorically held that the prosecution in a case of commission of murder by poisoning must bring in record some evidence linking the accused therewith,the instant case, while two ingredients have been proved but two have not. In the first place, it has no doubt been proved that Manju died of potassium cyanide and secondly, it has also been proved that there was an opportunity to administer the poison. It has, however, not been proved by any evidence that the appellant had the poison in his;2. That, at any rate, the evidence clearly shows that two views are possible one pointing to the guilt of the accused and the other leading to his innocence. It may be very likely that the appellant may have administered the poison (potassium Cyanide) to Manju but at the same time a fair possibility that she herself committed suicide cannot be safely excluded or eliminated. Hence, on this ground alone the appellant is entitled to the benefit of doubt resulting in his acquittal.3. The prosecution has miserably failed to prove one of the most essential ingredients of a case of death caused by administration of poison, i.e., possession of poison with the accused (either by direct or circumstantial evidence) and on this ground alone the prosecution must fail.First Information Report might have been lodged by the appellant only when the police arrived at the scene of occurrence. The Investigating Officer came to the place of occurrence at about 4.45 pm. PW1 categorically stated that he had asked someone to inform the police. When he did not comply therewith, then only he did so. If, in the aforementioned situation, the appellant had not informed the officer-in-charge of the police station, no presumption of adverse inference could be raised against him. There was no delay on the part of the appellant in informing the police, particularly, when he had informed PW1 who, in turn, informed the police.53. The learned Trial Judge has also relied upon the evidence of PW10, the owner of a Pan shop, who testified that the appellant had not visited the Pan shop on that day. His evidence, in our opinion, is not at all reliable. He admitted in his cross-examination that in the forenoon, his brother used to sit at the shop and, thus, his inference that the appellant used to take Pan regularly cannot be trustworthy.54. We, therefore, are of the firm view that circumstantial evidence leading to the guilt of the appellant have not been established by the prosecution, the judgment of the conviction and sentence, therefore, cannot be sustained. They are set aside accordingly. We can only record our distress that even in a case of this nature, appellant had to remain in custody for a period of four years.
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U.P. Co-Operative Federation Ltd Vs. Singh Consultants & Engineers (P) Ltd | one bank and another. If such temporary injunctions were to be granted in a transaction between a banker and a banker, restraining a bank from recalling the amount due when payment is made under reserve to another bank or in terms of the letter of guarantee or credit executed by it, the whole banking system in the country would fail.In view of the bankers obligation under an irrevocable letter of credit to pay, his buyer-customer cannot instruct him not to pay. 50. In Centax (India) Ltd. ((1986) 4 SCC 136 ), this Court again speaking through A. P. Sen, J. following the decision in the United Commercial Bank case said : "We do not see why the same principles should not apply to a bankers letter of indemnity." 51. It is true that both the decisions of this Court dealt with a contract to sell specific commodities or a transaction of sale of goods with an irrevocable letter of credit. But in modern commercial transactions, various devices are used to ensure performance by the contracting parties. The traditional letter of credit has taken a new meaning. In business circles, stand-by letters of credit are also used. Performance bond and guarantee bond are also the devices increasingly adopted in transactions. The courts have treated such documents as analogous to letter of credit. 52. A case involving the obligations under a performance guarantee was considered by the Court of Appeal in Edward Owen Engineering Ltd. v. Barclays Bank International Ltd. ((1978) 1 All ER 976). The facts in that case are these : English sellers entered into a contract to supply and erect glass-houses in Libya. The Libyan buyers were to open an irrevocable letter of credit in favour of the sellers. The sellers told their English bank to give a performance guarantee. The English bank instructed a Libyan bank to issue a performance bond in favour of the buyers for a certain sum and gave their guarantee payable on demand without proof or conditions to cover that sum. The Libyan bank issued a bond accordingly. The sellers received no confirmed letter of credit and refused to proceed with the contract. The sellers obtained an interim injunction to prevent the English bank from paying on the guarantee. On appeal Lord Denning, M.R. said: "So, as one takes instance after instance, these performance guarantees are virtually promissory notes payable on demand. So long as the Libyan customers make an honest demand, the banks are bound to pay and the banks will rarely, if ever, be in a position to know whether the demand is honest or not. At any rate they will not be able to prove it to be dishonest. So they will have to pay And saidAll this leads to the conclusion that the performance guarantee stands on a similar footing to a letter of credit. A bank which gives a performance guarantee must honour that guarantee according to its terms. It is not concerned in the least with the relations between the supplier and the customer; nor with the question whether the supplier has performed his contractual obligation or not; nor with the question whether supplier is in default or not. The bank must pay according to its guarantee, on demand if so stipulated, without proof or conditions. The only exception is when there is a clear fraud of which the bank has notice." 53. Whether it is a traditional letter of credit or a new device like performance bond or performance guarantee, the obligation of banks appears to be the same. If the documentary credits are irrevocable and independent, the banks must pay when demand is made. Since the bank pledges its own credit involving its reputation, it has no defence except in the case of fraud. The banks obligations of course should not be extended to protect the unscrupulous seller, that is, the seller who is responsible for the fraud. But, the banker must be sure of his ground before declining to pay. The nature of as to vitiate the entire underlying transaction". It is fraud of the beneficiary, not the fraud of somebody else. If the bank detects with a minimal investigation the fraudulent action of the seller, the payment could be refused. The bank cannot be compelled to honour the credit in such cases. But it may be very difficult for the bank to take a decision on the alleged fraudulent action. In such cases, it would be proper for the bank to ask the buyer to approach the court for an injunction. 54. The court, however, should not lightly interfere with the operation of irrevocable documentary credit. I agree with my learned brother that in order to restrain the operation of the irrevocable letter of credit, performance bond or guarantee, there should be serious dispute to be tried and there should be a good prima facie acts of fraud. As Sir John Donaldson, M. R. said in Bolivinter Oil SA v. Chase Manhattan Bank ((1984) 1 All ER 351, 352)The wholly exceptional case where an injunction may be granted is where it is proved that the bank knows that any demand for payment already made or which may thereafter be made will clearly be fraudulent. But the evidence must be clear, both as to the fact of fraud and as to the banks knowledge. It would certainly not normally be sufficient that this rests on the uncorroborated statement of the customer, for irreparable damage can be done to a banks credit in the relatively brief time which must elapse between the granting of such an injunction and an application by the bank to have it discharged. 55. From the above discussion, what appears to me is this : The sound banking system may, however require more caution in the issuance of irrevocable documentary credits. It would be for the banks to safeguard themselves by other means and generally not for the court to come to their rescue with injunctions unless there is established fraud. 56. | 1[ds]13. The trial court in its judgment held that the Bank should be kept to fulfil its obligations and commitments and the court should not come in the way. But that principle was distinguished by the High Court on the ground that the respondent was seeking relief against the U.P. Cooperative Federation Ltd. and the subject matter of the dispute itself being as to whether the bank guarantee could be invoked and encashed. The High Court was of the view that even otherwise it cannot be doubted that the appellant cannot be permitted to take advantage of illegally invoking a bank guarantee on a technical plea that the guarantee was independent of the contract involving only the bank and the opposite party at pleasure. The High Court was of the view that prima facie it appeared that the plant was handed over after a trial run and that the commercial production had started and this has not been assailed as a fact. The High Court was of the view, that in these circumstances this cannot be said that the invocation order was final and irrevocable. The High Court was further of the view that having taken over the possession of the plant it was necessary to consider all the aspects and held that the bank guarantees could not be invoked. The High Court was of the view that it was not a question of restraining the performance of any bankI am, however, unable to agree. The principles upon which the bank guarantees could be invoked or restrained are well settled. Our attention was also drawn to several decisions of the High Court as well as of this Court. Reference had also been made to some of the English decisions. So far as the position of English law is concerned, the principles by now are well settled. I will refer to some of the decisions and explain theIn the instant case, the learned Judge has proceeded on the basis that this was not an injunction sought against the bank but this was the injunction sought against the appellant. But the net effect of the injunction is to restrain the bank from performing the bank guarantee. That cannot be done. One cannot do indirectly what one is not free to do directly. But a maltreated man in such circumstances is not remedyless. The respondent was not to suffer any injustice which was irretrievable. The respondent can sue the appellant for damages. In this case, there cannot be any basis for apprehension that irretrievable damages would be caused if any. I am of the opinion that this is not a case in which injunction should be granted. An irrevocable commitment either in the form of confirmed bank guarantee or irrevocable letter of credit cannot be interfered with except in case of fraud or in case of question of apprehension of irretrievable injustice has been made out. This is the well settled principle of the law in England. This is also a well settled principle of law in India, as I shall presently notice from some of the decisions of the High Court and decisions of thisIn the instant case, there was no fraud involved and no question of irretrievable injustice wasMr. Tarkunde submitted before us that in this case the grievance of the appellant was that there was delay in performance and defective machinery had been supplied. He submitted that if at this stage appellant was allowed to enforce the bank guarantee, damage would be done. He submitted before us that appellant could not be permitted to take advantage of illegality by invoking the bank guarantee. But in my opinion these contentions cannot deter us - in view of the principle well settled that there should not be interference in trade. This is not a case where irretrievable injustice would be done by enforcement of bank guarantee. This is also not a case where a strong prima facie case of fraud in entering into a transaction was made out. If that is the position, then the High Court should not have interfered with the bankIn the aforesaid view of the matter, this appeal must be allowed. The judgment and order of the Allahabad High Court dated February 20, 1987 must be set aside and the order of the learned Civil Judge, Lucknow dated August 8, 1986In the facts and circumstances of the case parties will bear their own costs of this appeal | 1 | 10,075 | 797 | ### Instruction:
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one bank and another. If such temporary injunctions were to be granted in a transaction between a banker and a banker, restraining a bank from recalling the amount due when payment is made under reserve to another bank or in terms of the letter of guarantee or credit executed by it, the whole banking system in the country would fail.In view of the bankers obligation under an irrevocable letter of credit to pay, his buyer-customer cannot instruct him not to pay. 50. In Centax (India) Ltd. ((1986) 4 SCC 136 ), this Court again speaking through A. P. Sen, J. following the decision in the United Commercial Bank case said : "We do not see why the same principles should not apply to a bankers letter of indemnity." 51. It is true that both the decisions of this Court dealt with a contract to sell specific commodities or a transaction of sale of goods with an irrevocable letter of credit. But in modern commercial transactions, various devices are used to ensure performance by the contracting parties. The traditional letter of credit has taken a new meaning. In business circles, stand-by letters of credit are also used. Performance bond and guarantee bond are also the devices increasingly adopted in transactions. The courts have treated such documents as analogous to letter of credit. 52. A case involving the obligations under a performance guarantee was considered by the Court of Appeal in Edward Owen Engineering Ltd. v. Barclays Bank International Ltd. ((1978) 1 All ER 976). The facts in that case are these : English sellers entered into a contract to supply and erect glass-houses in Libya. The Libyan buyers were to open an irrevocable letter of credit in favour of the sellers. The sellers told their English bank to give a performance guarantee. The English bank instructed a Libyan bank to issue a performance bond in favour of the buyers for a certain sum and gave their guarantee payable on demand without proof or conditions to cover that sum. The Libyan bank issued a bond accordingly. The sellers received no confirmed letter of credit and refused to proceed with the contract. The sellers obtained an interim injunction to prevent the English bank from paying on the guarantee. On appeal Lord Denning, M.R. said: "So, as one takes instance after instance, these performance guarantees are virtually promissory notes payable on demand. So long as the Libyan customers make an honest demand, the banks are bound to pay and the banks will rarely, if ever, be in a position to know whether the demand is honest or not. At any rate they will not be able to prove it to be dishonest. So they will have to pay And saidAll this leads to the conclusion that the performance guarantee stands on a similar footing to a letter of credit. A bank which gives a performance guarantee must honour that guarantee according to its terms. It is not concerned in the least with the relations between the supplier and the customer; nor with the question whether the supplier has performed his contractual obligation or not; nor with the question whether supplier is in default or not. The bank must pay according to its guarantee, on demand if so stipulated, without proof or conditions. The only exception is when there is a clear fraud of which the bank has notice." 53. Whether it is a traditional letter of credit or a new device like performance bond or performance guarantee, the obligation of banks appears to be the same. If the documentary credits are irrevocable and independent, the banks must pay when demand is made. Since the bank pledges its own credit involving its reputation, it has no defence except in the case of fraud. The banks obligations of course should not be extended to protect the unscrupulous seller, that is, the seller who is responsible for the fraud. But, the banker must be sure of his ground before declining to pay. The nature of as to vitiate the entire underlying transaction". It is fraud of the beneficiary, not the fraud of somebody else. If the bank detects with a minimal investigation the fraudulent action of the seller, the payment could be refused. The bank cannot be compelled to honour the credit in such cases. But it may be very difficult for the bank to take a decision on the alleged fraudulent action. In such cases, it would be proper for the bank to ask the buyer to approach the court for an injunction. 54. The court, however, should not lightly interfere with the operation of irrevocable documentary credit. I agree with my learned brother that in order to restrain the operation of the irrevocable letter of credit, performance bond or guarantee, there should be serious dispute to be tried and there should be a good prima facie acts of fraud. As Sir John Donaldson, M. R. said in Bolivinter Oil SA v. Chase Manhattan Bank ((1984) 1 All ER 351, 352)The wholly exceptional case where an injunction may be granted is where it is proved that the bank knows that any demand for payment already made or which may thereafter be made will clearly be fraudulent. But the evidence must be clear, both as to the fact of fraud and as to the banks knowledge. It would certainly not normally be sufficient that this rests on the uncorroborated statement of the customer, for irreparable damage can be done to a banks credit in the relatively brief time which must elapse between the granting of such an injunction and an application by the bank to have it discharged. 55. From the above discussion, what appears to me is this : The sound banking system may, however require more caution in the issuance of irrevocable documentary credits. It would be for the banks to safeguard themselves by other means and generally not for the court to come to their rescue with injunctions unless there is established fraud. 56.
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### Explanation:
13. The trial court in its judgment held that the Bank should be kept to fulfil its obligations and commitments and the court should not come in the way. But that principle was distinguished by the High Court on the ground that the respondent was seeking relief against the U.P. Cooperative Federation Ltd. and the subject matter of the dispute itself being as to whether the bank guarantee could be invoked and encashed. The High Court was of the view that even otherwise it cannot be doubted that the appellant cannot be permitted to take advantage of illegally invoking a bank guarantee on a technical plea that the guarantee was independent of the contract involving only the bank and the opposite party at pleasure. The High Court was of the view that prima facie it appeared that the plant was handed over after a trial run and that the commercial production had started and this has not been assailed as a fact. The High Court was of the view, that in these circumstances this cannot be said that the invocation order was final and irrevocable. The High Court was further of the view that having taken over the possession of the plant it was necessary to consider all the aspects and held that the bank guarantees could not be invoked. The High Court was of the view that it was not a question of restraining the performance of any bankI am, however, unable to agree. The principles upon which the bank guarantees could be invoked or restrained are well settled. Our attention was also drawn to several decisions of the High Court as well as of this Court. Reference had also been made to some of the English decisions. So far as the position of English law is concerned, the principles by now are well settled. I will refer to some of the decisions and explain theIn the instant case, the learned Judge has proceeded on the basis that this was not an injunction sought against the bank but this was the injunction sought against the appellant. But the net effect of the injunction is to restrain the bank from performing the bank guarantee. That cannot be done. One cannot do indirectly what one is not free to do directly. But a maltreated man in such circumstances is not remedyless. The respondent was not to suffer any injustice which was irretrievable. The respondent can sue the appellant for damages. In this case, there cannot be any basis for apprehension that irretrievable damages would be caused if any. I am of the opinion that this is not a case in which injunction should be granted. An irrevocable commitment either in the form of confirmed bank guarantee or irrevocable letter of credit cannot be interfered with except in case of fraud or in case of question of apprehension of irretrievable injustice has been made out. This is the well settled principle of the law in England. This is also a well settled principle of law in India, as I shall presently notice from some of the decisions of the High Court and decisions of thisIn the instant case, there was no fraud involved and no question of irretrievable injustice wasMr. Tarkunde submitted before us that in this case the grievance of the appellant was that there was delay in performance and defective machinery had been supplied. He submitted that if at this stage appellant was allowed to enforce the bank guarantee, damage would be done. He submitted before us that appellant could not be permitted to take advantage of illegality by invoking the bank guarantee. But in my opinion these contentions cannot deter us - in view of the principle well settled that there should not be interference in trade. This is not a case where irretrievable injustice would be done by enforcement of bank guarantee. This is also not a case where a strong prima facie case of fraud in entering into a transaction was made out. If that is the position, then the High Court should not have interfered with the bankIn the aforesaid view of the matter, this appeal must be allowed. The judgment and order of the Allahabad High Court dated February 20, 1987 must be set aside and the order of the learned Civil Judge, Lucknow dated August 8, 1986In the facts and circumstances of the case parties will bear their own costs of this appeal
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D. Vinod Shivappa Vs. Nanda Belliappa | of its partners the statutory notice under Section 138 of Act and received the postal acknowledgement of the notice on June 15, 1998 which was the last date of limitation on the basis of the said notice. However, the appellant again presented the cheque on July 1, 1998 which was again dishonoured on July 2, 1998. The appellant sent a second notice of dishonour of the cheque but the respondent having received the notice on July 27, 1998 did not make the payment. On September 9, 1998 the appellant filed a complaint. The respondent moved a petition before the High Court for quashing of the complaint under Section 482 of the Code of Criminal Procedure on the ground that it was time barred since acknowledgement of the first notice was received by the complainant on June 15, 1998 and the complaint was filed after July 15, 1998. The appellant on the other hand contended that the respondents having denied receipt of the first notice, the only course open to the appellant was to present the cheque again. The High Court quashed the complaint as time barred. This Court allowed the appeal of the appellant after considering the authorities cited at the bar and observed: - Section 27 of the General Clauses Act deals with the presumption of service of a letter sent by post. The despatcher of a notice has, therefore, a right to insist upon and claim the benefit of such a presumption. But as the presumption is rebuttable one, he has two options before him. One is to concede to the stand of the sendee that as a matter of fact he did not receive the notice, and the other is to contest the sendees stand and take the risk for proving that he in fact received the notice. It is open to the despatcher to adopt either of the options. If he opts the former, he can afford to take appropriate steps for the effective service of notice upon the addressee. Such a course appears to have been adopted by the appellant-company in this case and the complaint filed, admittedly, within limitation from the date of the notice of service conceded to have been served upon the respondents. 21. This Court also held that though the payee may successively re-present a dischonoured cheque but once a notice under Section 138 of the Act was received by the drawer of the cheque, the payee or the holder of the cheque forfeits his right to again present the cheque, since the cause of action had accrued when there was failure to pay the amount within the prescribed period. 22. Counsel for the appellant relied on paragraph 6 of the report wherein it was observed that it is not the giving of the notice but it is the failure to pay after receipt of the notice by the drawer which gives the cause of action to the complainant to file the complaint within the statutory period. It is no doubt true that the receipt of the notice has to be proved, but as held by this Court consistently, refusal of notice amounts to service of notice. Similarly in a case where notice is not claimed even though sent by registered post, with the aid of Section 27 of the General Clauses Act, the drawer of the cheque may be called upon to rebut the presumption which arises in favour of service of notice. 23. In (2004) 8 SCC 774 : V. Raja Kumari vs. P. Subbarama Naidu and another, dealing with a case where the notice could not be served on account of the fact that the door of the house of the drawer was found locked, this Court held that the principle incorporated in Section 27 of the General Clauses Act will apply to a notice sent by post, and it would be for the drawer to prove that it was not really served and that he was not responsible for such non-service. This Court reiterated the principle laid down in K. Bhaskaran vs. Sankaran Vaidhyan Balan and another case (supra). This Court while dismissing the appeal concluded: - Burden is on the complainant to show that the accused has managed to get an incorrect postal endorsement made. What is the effect of it has to be considered during trial, as the statutory scheme unmistakably shows the burden is on the complainant to show the service of notice. Therefore, where material is brought to show that there was false endorsement about the non-availability of notice, the inference that is to be drawn has to be judged on the background facts of each case. 24. In (2005) 4 SCC 417 : Prem Chand Vijay Kuamr vs. Yashpal Singh and another, the Court relied upon the principle laid down in (1998) 6 SCC 514 : Sadanandan Bhadran vs. Madhavan Sunil Kumar which was followed in Dalmia Cement (Bharat) Ltd. vs. Galaxy Traders & Agencies Ltd. and others (supra). 25. None of the decisions considered above take a view different from the view we have taken. The question as to whether there was deemed service of notice, in the sense that the endorsement made on the returned envelope was a manipulated and false endorsement, is essentially a question of fact, and that must be considered in the light of the evidence on record. The High Court was thus right in rejecting the petitions filed by the appellant under Section 482 of the Code of Criminal Procedure. 26. Learned counsel for the appellant submitted that there may be unscrupulous complainants, who may manage to get a false postal endorsement of refusal or unclaimed or party not available and then prosecute an innocent or bona fide drawer. We do not think that the drawer is without remedy. He can also establish by evidence that said endorsement of refusal or unclaimed or not found during delivery time to be false. Alternatively, he may pay the amount due and compound the matter. Be that it may. | 0[ds]12. Section 138 of the Act was enacted to punish those unscrupulous persons who purported to discharge their liability by issuing cheques without really intending to do so, which was demonstrated by the fact that there was no sufficient balance in the account to discharge the liability. Apart from civil liability, a criminal liability was imposed on such unscrupulous drawers of cheques. The prosecution, however, was made subject to certain conditions. With a view to avoid unnecessary prosecution of an honest drawer of a cheque, or to give an opportunity to the drawer to make amends, the proviso to Section 138 provides that after dis-honour of the cheque, the payee or the holder of the cheque in due course must give a written notice to the drawer to make good the payment. The drawer is given 15 days time from date of receipt of notice to make the payment, and only if he fails to make the payment he may be prosecuted. The object which the proviso seeks to achieve is quite obvious. It may be that on account of mistake of the bank, a cheque may be returned despite the fact that there is sufficient balance in the account from which the amount is to be paid. In such a case if the drawer of the cheque is prosecuted without notice, it would result in great in-justice and hardship to an honest drawer. One can also conceive of cases where a well intentioned drawer may have inadvertently missed to make necessary arrangements for reasons beyond his control, even though he genuinely intended to honour the cheque drawn by him13. The law treats such lapses induced by inadvertence or negligence to be pardonable, provided the drawer after notice makes amends and pays the amount within the prescribed period. It is for this reason that clause (c) of proviso to Section 138 provides that the section shall not apply unless the drawer of the cheque fails to make the payment within 15 days of the receipt of the said notice. To repeat, the proviso is meant to protect honest drawers whose cheques may have been dishonoured for the fault of others, or who may have genuinely wanted to fulfil their promise but on account of inadvertence or negligence failed to make necessary arrangements for the payment of the cheque. The proviso is not meant to protect unscrupulous drawers who never intended to honour the cheques issued by them, it being a part of their modus operandi to cheat unsuspecting persons14. If a notice is issued and served upon the drawer of the cheque, no controversy arises. Similarly if the notice is refused by the addressee, it may be presumed to have been served. This is also not disputed. This leaves us with the third situation where the notice could not be served on the addressee for one or the other reason, such as his non availability at the time of delivery, or premises remaining locked on account of his having gone elsewhere etc. etc. If in each such case the law is understood to mean that there has been no service of notice, it would completely defeat the very purpose of the Act. It would then be very easy for an unscrupulous and dishonest drawer of a cheque to make himself scarce for sometime after issuing the cheque so that the requisite statutory notice can never be served upon him and consequently he can never be prosecuted. There is good authority to support the proposition that once the complainant, the payee of the cheque, issues notice to the drawer of the cheque, the cause of action to file a complaint arises on the expiry of the period prescribed for payment by the drawer of the cheque. If he does not file a complaint within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138 of the Act, his complaint gets barred by time. Thus, a person who can dodge the postman for about a month or two, or a person who can get a fake endorsement made regarding his non availability can successfully avoid his prosecution because the payee is bound to issue notice to him within a period of 30 days from the date of receipt of information from the bank regarding the return of the cheque as unpaid. He is, therefore, bound to issue the legal notice which may be returned with an endorsement that the addressee is not available on the given address18. This Court noticed the position well settled in law that the notice refused to be accepted by the drawer can be presumed to have been served on him. In that case the notice was returned as unclaimed and not as refused. The Court posed the question Will there be any significant difference between the two so far as the presumption of service is concerned? Their Lordships referred to Section 27 of the General Clauses Act and observed that the principle incorporated therein could profitably be imported in a case where the sender had despatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee, unless he proves that it was not really served and that he was not responsible for such non-service. This Court dismissed the appeal preferred by the drawer holding that where the notice is returned by the addressee as unclaimed such date of return to the sender would be the commencing date in reckoning the period of 15 days contemplated in clause (c) to the proviso of Section 138 of the Act. This would be without prejudice to the right of the drawer of the cheque to show that he had no knowledge that the notice was brought to his address. Since the appellant did not attempt to discharge the burden to rebut the aforesaid presumption, the appeal was dismissed by this Court25. None of the decisions considered above take a view different from the view we have taken. The question as to whether there was deemed service of notice, in the sense that the endorsement made on the returned envelope was a manipulated and false endorsement, is essentially a question of fact, and that must be considered in the light of the evidence on record. The High Court was thus right in rejecting the petitions filed by the appellant under Section 482 of the Code of Criminal Procedure | 0 | 4,736 | 1,159 | ### 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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of its partners the statutory notice under Section 138 of Act and received the postal acknowledgement of the notice on June 15, 1998 which was the last date of limitation on the basis of the said notice. However, the appellant again presented the cheque on July 1, 1998 which was again dishonoured on July 2, 1998. The appellant sent a second notice of dishonour of the cheque but the respondent having received the notice on July 27, 1998 did not make the payment. On September 9, 1998 the appellant filed a complaint. The respondent moved a petition before the High Court for quashing of the complaint under Section 482 of the Code of Criminal Procedure on the ground that it was time barred since acknowledgement of the first notice was received by the complainant on June 15, 1998 and the complaint was filed after July 15, 1998. The appellant on the other hand contended that the respondents having denied receipt of the first notice, the only course open to the appellant was to present the cheque again. The High Court quashed the complaint as time barred. This Court allowed the appeal of the appellant after considering the authorities cited at the bar and observed: - Section 27 of the General Clauses Act deals with the presumption of service of a letter sent by post. The despatcher of a notice has, therefore, a right to insist upon and claim the benefit of such a presumption. But as the presumption is rebuttable one, he has two options before him. One is to concede to the stand of the sendee that as a matter of fact he did not receive the notice, and the other is to contest the sendees stand and take the risk for proving that he in fact received the notice. It is open to the despatcher to adopt either of the options. If he opts the former, he can afford to take appropriate steps for the effective service of notice upon the addressee. Such a course appears to have been adopted by the appellant-company in this case and the complaint filed, admittedly, within limitation from the date of the notice of service conceded to have been served upon the respondents. 21. This Court also held that though the payee may successively re-present a dischonoured cheque but once a notice under Section 138 of the Act was received by the drawer of the cheque, the payee or the holder of the cheque forfeits his right to again present the cheque, since the cause of action had accrued when there was failure to pay the amount within the prescribed period. 22. Counsel for the appellant relied on paragraph 6 of the report wherein it was observed that it is not the giving of the notice but it is the failure to pay after receipt of the notice by the drawer which gives the cause of action to the complainant to file the complaint within the statutory period. It is no doubt true that the receipt of the notice has to be proved, but as held by this Court consistently, refusal of notice amounts to service of notice. Similarly in a case where notice is not claimed even though sent by registered post, with the aid of Section 27 of the General Clauses Act, the drawer of the cheque may be called upon to rebut the presumption which arises in favour of service of notice. 23. In (2004) 8 SCC 774 : V. Raja Kumari vs. P. Subbarama Naidu and another, dealing with a case where the notice could not be served on account of the fact that the door of the house of the drawer was found locked, this Court held that the principle incorporated in Section 27 of the General Clauses Act will apply to a notice sent by post, and it would be for the drawer to prove that it was not really served and that he was not responsible for such non-service. This Court reiterated the principle laid down in K. Bhaskaran vs. Sankaran Vaidhyan Balan and another case (supra). This Court while dismissing the appeal concluded: - Burden is on the complainant to show that the accused has managed to get an incorrect postal endorsement made. What is the effect of it has to be considered during trial, as the statutory scheme unmistakably shows the burden is on the complainant to show the service of notice. Therefore, where material is brought to show that there was false endorsement about the non-availability of notice, the inference that is to be drawn has to be judged on the background facts of each case. 24. In (2005) 4 SCC 417 : Prem Chand Vijay Kuamr vs. Yashpal Singh and another, the Court relied upon the principle laid down in (1998) 6 SCC 514 : Sadanandan Bhadran vs. Madhavan Sunil Kumar which was followed in Dalmia Cement (Bharat) Ltd. vs. Galaxy Traders & Agencies Ltd. and others (supra). 25. None of the decisions considered above take a view different from the view we have taken. The question as to whether there was deemed service of notice, in the sense that the endorsement made on the returned envelope was a manipulated and false endorsement, is essentially a question of fact, and that must be considered in the light of the evidence on record. The High Court was thus right in rejecting the petitions filed by the appellant under Section 482 of the Code of Criminal Procedure. 26. Learned counsel for the appellant submitted that there may be unscrupulous complainants, who may manage to get a false postal endorsement of refusal or unclaimed or party not available and then prosecute an innocent or bona fide drawer. We do not think that the drawer is without remedy. He can also establish by evidence that said endorsement of refusal or unclaimed or not found during delivery time to be false. Alternatively, he may pay the amount due and compound the matter. Be that it may.
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drawer of a cheque, or to give an opportunity to the drawer to make amends, the proviso to Section 138 provides that after dis-honour of the cheque, the payee or the holder of the cheque in due course must give a written notice to the drawer to make good the payment. The drawer is given 15 days time from date of receipt of notice to make the payment, and only if he fails to make the payment he may be prosecuted. The object which the proviso seeks to achieve is quite obvious. It may be that on account of mistake of the bank, a cheque may be returned despite the fact that there is sufficient balance in the account from which the amount is to be paid. In such a case if the drawer of the cheque is prosecuted without notice, it would result in great in-justice and hardship to an honest drawer. One can also conceive of cases where a well intentioned drawer may have inadvertently missed to make necessary arrangements for reasons beyond his control, even though he genuinely intended to honour the cheque drawn by him13. The law treats such lapses induced by inadvertence or negligence to be pardonable, provided the drawer after notice makes amends and pays the amount within the prescribed period. It is for this reason that clause (c) of proviso to Section 138 provides that the section shall not apply unless the drawer of the cheque fails to make the payment within 15 days of the receipt of the said notice. To repeat, the proviso is meant to protect honest drawers whose cheques may have been dishonoured for the fault of others, or who may have genuinely wanted to fulfil their promise but on account of inadvertence or negligence failed to make necessary arrangements for the payment of the cheque. The proviso is not meant to protect unscrupulous drawers who never intended to honour the cheques issued by them, it being a part of their modus operandi to cheat unsuspecting persons14. If a notice is issued and served upon the drawer of the cheque, no controversy arises. Similarly if the notice is refused by the addressee, it may be presumed to have been served. This is also not disputed. This leaves us with the third situation where the notice could not be served on the addressee for one or the other reason, such as his non availability at the time of delivery, or premises remaining locked on account of his having gone elsewhere etc. etc. If in each such case the law is understood to mean that there has been no service of notice, it would completely defeat the very purpose of the Act. It would then be very easy for an unscrupulous and dishonest drawer of a cheque to make himself scarce for sometime after issuing the cheque so that the requisite statutory notice can never be served upon him and consequently he can never be prosecuted. There is good authority to support the proposition that once the complainant, the payee of the cheque, issues notice to the drawer of the cheque, the cause of action to file a complaint arises on the expiry of the period prescribed for payment by the drawer of the cheque. If he does not file a complaint within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138 of the Act, his complaint gets barred by time. Thus, a person who can dodge the postman for about a month or two, or a person who can get a fake endorsement made regarding his non availability can successfully avoid his prosecution because the payee is bound to issue notice to him within a period of 30 days from the date of receipt of information from the bank regarding the return of the cheque as unpaid. He is, therefore, bound to issue the legal notice which may be returned with an endorsement that the addressee is not available on the given address18. This Court noticed the position well settled in law that the notice refused to be accepted by the drawer can be presumed to have been served on him. In that case the notice was returned as unclaimed and not as refused. The Court posed the question Will there be any significant difference between the two so far as the presumption of service is concerned? Their Lordships referred to Section 27 of the General Clauses Act and observed that the principle incorporated therein could profitably be imported in a case where the sender had despatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee, unless he proves that it was not really served and that he was not responsible for such non-service. This Court dismissed the appeal preferred by the drawer holding that where the notice is returned by the addressee as unclaimed such date of return to the sender would be the commencing date in reckoning the period of 15 days contemplated in clause (c) to the proviso of Section 138 of the Act. This would be without prejudice to the right of the drawer of the cheque to show that he had no knowledge that the notice was brought to his address. Since the appellant did not attempt to discharge the burden to rebut the aforesaid presumption, the appeal was dismissed by this Court25. None of the decisions considered above take a view different from the view we have taken. The question as to whether there was deemed service of notice, in the sense that the endorsement made on the returned envelope was a manipulated and false endorsement, is essentially a question of fact, and that must be considered in the light of the evidence on record. The High Court was thus right in rejecting the petitions filed by the appellant under Section 482 of the Code of Criminal Procedure
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ANAND MURTI Vs. SONI INFRATECH PRIVATE LIMITED & ANR | Private Limited vide its order dated 22.11.2019 for the CIRP got admitted. 11. That suspended Director has preferred an Appeal before Honble NCLAT and Honble NCLAT vide it order dated 19.12.2019 were pleased to grant stay on CIRP. 12. That as per the direction of the Honble NCLAT, i have filed the settlement terms/Resolution Plan with all details pertaining how this project will be managed to be completed with funds planning and repayment to all Creditors. 13. That I say that I will complete the stage wise construction within 6 months to 15 months (+/- 3 Months) in phased manner from the date of Order. Particulars Tower Time in Months (+/-- 3 Months) Stage--I T8--T12 Within 6--9 months Stage--II T1--T4 Within 12 months Stage--III T5--T7 Within 15 months 14. That I say, I had committed in open court and accordingly arranged Rs 10 Crore to start the project immediately without any delay and I will ensure this will be started within 15--30 days. 15. That I have already agreed in my Resolution plan that the Cost of the Flat will not be escalated and agreed to honor the BBA signed by the previous management. 16. That as per the data before the LD IRP only 9 home buyers out of 452 Home Buyers wanted the refund and in my Resolution Plan I have agreed to refund the amount after completion of the project of Phase--1. 17. That I have stated all relevant data and computation in details in my Resolution Plan that how the funds will be utilized and how the construction work can be completed in time. 18. That I have stated in my last modified resolution plan that SBI Cap Vetures Ltd has already shown interest for further Loan of 100 Crore to me. 19. That as per the direction of Honble NCLAT I have attended the meeting with the Representative of the Home Buyers and I have already accepted and agreed to Incorporate the suggestions and objections of the Home Buyers to the Resolution Plan and the same has been recorded by the LD IRP in the Minutes of the Meeting dated 23.10.2021. 20. That I have also given my consent to make a team of 5 person, 2 from buyer side and 2 from management side and will be monitored by Ld IRP 21. That this affidavit to the additional documents in the present Civil Appeal have been read by me and are found true and correct to my knowledge and belief. 22. That the Annexures are true copies of their respective originals. 23. That the facts stated in the above affidavit are true and correct to my personal knowledge and belief. 24. That No part of the same is false and nothing material have been concealed there from. DEPONENT VERIFICATION I, the above named deponent do hereby verify that the facts stated in the above affidavit are true to my knowledge and belief which I believe to be true. No part of the same is false and nothing material has been concealed there from. Verified at New Delhi, on this 27th day of December, 2021. DEPONENT. 20. The Promoter, Shri Kashi Nath Shukla has also filed an undertaking, thereby undertaking to return the money with interest at the rate of 6% per annum of seven applicants in I.A. No.11358 of 2022 (for impleadment) in the present appeal, who were objecting to the Settlement Plan submitted by the appellant. The same is taken on record and marked X for identification. 21. Taking into consideration the facts and circumstances of the present case, we find that it will be in the interest of the home--buyers if the appellant/promoter is permitted to complete the housing project. The salient features of the undertaking given on affidavit are as under: (a) That the project will be completed stage-wise within a period of 6 months to 15 months (+/- 3 months) in a phased manner; (b) That the promoter has arranged an amount of Rs. 10 crores to start the project immediately without any delay and that he will ensure that the project would be started within 15--30 days; (c) That the cost of the flat will not be escalated and that the promoter is agreeable to honour the BBA signed by the previous management; (d) That SBI Cap Ventures Ltd. has already shown interest for further loan of Rs.100 crore; (e) That the promoter has given his consent to make a team of 5 persons, 2 from home-buyers side and 2 from the management side and that the entire process will be monitored by the IRP. 22. Taking into consideration the salient features of the undertaking given on affidavit by the Promoter, Shri Kashi Nath Shukla and the fact that there are only seven out of the 452 home--buyers, who opposed the Settlement Plan, we find that it will rather be in the interest of the home--buyers that the appellant/promoter is permitted to complete the project as undertaken by him. It is pertinent to note that he has agreed that the cost of the flat will not be escalated. He has also given the time line within which the project would be completed. Not only this, but he has also undertaken to refund the amount paid by the seven objectors, if they so desire. He has further agreed that there shall be a team of 5 persons, 2 from the home-buyers side and 2 from the management side and that the entire process shall be monitored by the IRP. 23. We find that there is every possibility that if the CIRP is permitted, the cost that the home--buyers will have to pay, would be much higher, inasmuch as the offer made by the resolution applicants could be after taking into consideration the price of escalation, etc. As against this, the Promoter has filed a specific undertaking specifying therein that the cost of the flat would not be escalated and that he would honour the BBA signed by the previous management. | 1[ds]18. It could thus be seen that though a meeting of various stakeholders was conducted on 23rd October, 2021 in pursuance to the directions issued by the NCLAT dated 29th September, 2021 and in which meeting most of the issues stood resolved, the NCLAT has failed to take into consideration the minutes of the said meeting dated 23rd October, 2021. Not only that, but the NCLAT has also not taken into consideration the Revised Status Report dated 3rd November, 2021 submitted by the IRP.20. The Promoter, Shri Kashi Nath Shukla has also filed an undertaking, thereby undertaking to return the money with interest at the rate of 6% per annum of seven applicants in I.A. No.11358 of 2022 (for impleadment) in the present appeal, who were objecting to the Settlement Plan submitted by the appellant. The same is taken on record and marked X for identification.21. Taking into consideration the facts and circumstances of the present case, we find that it will be in the interest of the home--buyers if the appellant/promoter is permitted to complete the housing project. The salient features of the undertaking given on affidavit are as under:(a) That the project will be completed stage-wise within a period of 6 months to 15 months (+/- 3 months) in a phased manner;(b) That the promoter has arranged an amount of Rs. 10 crores to start the project immediately without any delay and that he will ensure that the project would be started within 15--30 days;(c) That the cost of the flat will not be escalated and that the promoter is agreeable to honour the BBA signed by the previous management;(d) That SBI Cap Ventures Ltd. has already shown interest for further loan of Rs.100 crore;(e) That the promoter has given his consent to make a team of 5 persons, 2 from home-buyers side and 2 from the management side and that the entire process will be monitored by the IRP.22. Taking into consideration the salient features of the undertaking given on affidavit by the Promoter, Shri Kashi Nath Shukla and the fact that there are only seven out of the 452 home--buyers, who opposed the Settlement Plan, we find that it will rather be in the interest of the home--buyers that the appellant/promoter is permitted to complete the project as undertaken by him. It is pertinent to note that he has agreed that the cost of the flat will not be escalated. He has also given the time line within which the project would be completed. Not only this, but he has also undertaken to refund the amount paid by the seven objectors, if they so desire. He has further agreed that there shall be a team of 5 persons, 2 from the home-buyers side and 2 from the management side and that the entire process shall be monitored by the IRP.23. We find that there is every possibility that if the CIRP is permitted, the cost that the home--buyers will have to pay, would be much higher, inasmuch as the offer made by the resolution applicants could be after taking into consideration the price of escalation, etc. As against this, the Promoter has filed a specific undertaking specifying therein that the cost of the flat would not be escalated and that he would honour the BBA signed by the previous management. | 1 | 3,605 | 631 | ### 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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Private Limited vide its order dated 22.11.2019 for the CIRP got admitted. 11. That suspended Director has preferred an Appeal before Honble NCLAT and Honble NCLAT vide it order dated 19.12.2019 were pleased to grant stay on CIRP. 12. That as per the direction of the Honble NCLAT, i have filed the settlement terms/Resolution Plan with all details pertaining how this project will be managed to be completed with funds planning and repayment to all Creditors. 13. That I say that I will complete the stage wise construction within 6 months to 15 months (+/- 3 Months) in phased manner from the date of Order. Particulars Tower Time in Months (+/-- 3 Months) Stage--I T8--T12 Within 6--9 months Stage--II T1--T4 Within 12 months Stage--III T5--T7 Within 15 months 14. That I say, I had committed in open court and accordingly arranged Rs 10 Crore to start the project immediately without any delay and I will ensure this will be started within 15--30 days. 15. That I have already agreed in my Resolution plan that the Cost of the Flat will not be escalated and agreed to honor the BBA signed by the previous management. 16. That as per the data before the LD IRP only 9 home buyers out of 452 Home Buyers wanted the refund and in my Resolution Plan I have agreed to refund the amount after completion of the project of Phase--1. 17. That I have stated all relevant data and computation in details in my Resolution Plan that how the funds will be utilized and how the construction work can be completed in time. 18. That I have stated in my last modified resolution plan that SBI Cap Vetures Ltd has already shown interest for further Loan of 100 Crore to me. 19. That as per the direction of Honble NCLAT I have attended the meeting with the Representative of the Home Buyers and I have already accepted and agreed to Incorporate the suggestions and objections of the Home Buyers to the Resolution Plan and the same has been recorded by the LD IRP in the Minutes of the Meeting dated 23.10.2021. 20. That I have also given my consent to make a team of 5 person, 2 from buyer side and 2 from management side and will be monitored by Ld IRP 21. That this affidavit to the additional documents in the present Civil Appeal have been read by me and are found true and correct to my knowledge and belief. 22. That the Annexures are true copies of their respective originals. 23. That the facts stated in the above affidavit are true and correct to my personal knowledge and belief. 24. That No part of the same is false and nothing material have been concealed there from. DEPONENT VERIFICATION I, the above named deponent do hereby verify that the facts stated in the above affidavit are true to my knowledge and belief which I believe to be true. No part of the same is false and nothing material has been concealed there from. Verified at New Delhi, on this 27th day of December, 2021. DEPONENT. 20. The Promoter, Shri Kashi Nath Shukla has also filed an undertaking, thereby undertaking to return the money with interest at the rate of 6% per annum of seven applicants in I.A. No.11358 of 2022 (for impleadment) in the present appeal, who were objecting to the Settlement Plan submitted by the appellant. The same is taken on record and marked X for identification. 21. Taking into consideration the facts and circumstances of the present case, we find that it will be in the interest of the home--buyers if the appellant/promoter is permitted to complete the housing project. The salient features of the undertaking given on affidavit are as under: (a) That the project will be completed stage-wise within a period of 6 months to 15 months (+/- 3 months) in a phased manner; (b) That the promoter has arranged an amount of Rs. 10 crores to start the project immediately without any delay and that he will ensure that the project would be started within 15--30 days; (c) That the cost of the flat will not be escalated and that the promoter is agreeable to honour the BBA signed by the previous management; (d) That SBI Cap Ventures Ltd. has already shown interest for further loan of Rs.100 crore; (e) That the promoter has given his consent to make a team of 5 persons, 2 from home-buyers side and 2 from the management side and that the entire process will be monitored by the IRP. 22. Taking into consideration the salient features of the undertaking given on affidavit by the Promoter, Shri Kashi Nath Shukla and the fact that there are only seven out of the 452 home--buyers, who opposed the Settlement Plan, we find that it will rather be in the interest of the home--buyers that the appellant/promoter is permitted to complete the project as undertaken by him. It is pertinent to note that he has agreed that the cost of the flat will not be escalated. He has also given the time line within which the project would be completed. Not only this, but he has also undertaken to refund the amount paid by the seven objectors, if they so desire. He has further agreed that there shall be a team of 5 persons, 2 from the home-buyers side and 2 from the management side and that the entire process shall be monitored by the IRP. 23. We find that there is every possibility that if the CIRP is permitted, the cost that the home--buyers will have to pay, would be much higher, inasmuch as the offer made by the resolution applicants could be after taking into consideration the price of escalation, etc. As against this, the Promoter has filed a specific undertaking specifying therein that the cost of the flat would not be escalated and that he would honour the BBA signed by the previous management.
### Response:
1
### Explanation:
18. It could thus be seen that though a meeting of various stakeholders was conducted on 23rd October, 2021 in pursuance to the directions issued by the NCLAT dated 29th September, 2021 and in which meeting most of the issues stood resolved, the NCLAT has failed to take into consideration the minutes of the said meeting dated 23rd October, 2021. Not only that, but the NCLAT has also not taken into consideration the Revised Status Report dated 3rd November, 2021 submitted by the IRP.20. The Promoter, Shri Kashi Nath Shukla has also filed an undertaking, thereby undertaking to return the money with interest at the rate of 6% per annum of seven applicants in I.A. No.11358 of 2022 (for impleadment) in the present appeal, who were objecting to the Settlement Plan submitted by the appellant. The same is taken on record and marked X for identification.21. Taking into consideration the facts and circumstances of the present case, we find that it will be in the interest of the home--buyers if the appellant/promoter is permitted to complete the housing project. The salient features of the undertaking given on affidavit are as under:(a) That the project will be completed stage-wise within a period of 6 months to 15 months (+/- 3 months) in a phased manner;(b) That the promoter has arranged an amount of Rs. 10 crores to start the project immediately without any delay and that he will ensure that the project would be started within 15--30 days;(c) That the cost of the flat will not be escalated and that the promoter is agreeable to honour the BBA signed by the previous management;(d) That SBI Cap Ventures Ltd. has already shown interest for further loan of Rs.100 crore;(e) That the promoter has given his consent to make a team of 5 persons, 2 from home-buyers side and 2 from the management side and that the entire process will be monitored by the IRP.22. Taking into consideration the salient features of the undertaking given on affidavit by the Promoter, Shri Kashi Nath Shukla and the fact that there are only seven out of the 452 home--buyers, who opposed the Settlement Plan, we find that it will rather be in the interest of the home--buyers that the appellant/promoter is permitted to complete the project as undertaken by him. It is pertinent to note that he has agreed that the cost of the flat will not be escalated. He has also given the time line within which the project would be completed. Not only this, but he has also undertaken to refund the amount paid by the seven objectors, if they so desire. He has further agreed that there shall be a team of 5 persons, 2 from the home-buyers side and 2 from the management side and that the entire process shall be monitored by the IRP.23. We find that there is every possibility that if the CIRP is permitted, the cost that the home--buyers will have to pay, would be much higher, inasmuch as the offer made by the resolution applicants could be after taking into consideration the price of escalation, etc. As against this, the Promoter has filed a specific undertaking specifying therein that the cost of the flat would not be escalated and that he would honour the BBA signed by the previous management.
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State of Gujarat Vs. Kumar Ranjit Singhji Bhavan Singhji & Others | Shah, J. 1. Kumar Shri Ranjit Singhji Bhavan Singhji - hereinafter called the respondent - was the holder of a Jagir of four villages - Saloz, Vaurkhan, Kambalad and Thambla in Taluka, Jambegam, District Baroda. These villages were granted by a Sanad, dated August 18, 1885, to the father of the respondent by then Ruler of Chhota Udaipur. By the Bombay Merger Territories and Areas (Jagirs Abolition) Act 39 of 1954 with effect from August 1, 1954, the Jagir of the respondent stood abolished. Under the provisions of the Act the respondent became entitled to compensation provided under the Act. The respondent preferred a claim for compensation under the Act. The Jagir Abolition Officer held that no compensation was payable in respect of teak tress, because in the Chhota Udaipur State teak trees were reserved trees, and no convincing evidence had been produced by the Jagirdar that he enjoyed any right to reserved trees. The Gujarat Revenue Tribunal confirmed the order of the Jagir Abolition Officer. The Tribunal held that the Sanad granted to the respondents father related merely to the right of usufruct of the villages and the grantee was expressly prohibited from mortgaging, selling or disposing of the same in any manner. That prohibition in the view of the Tribunal applied to teak trees as well. 2. The respondent moved a petition in the High Court of Gujarat for a writ quashing the order of the Tribunal. The High Court held that there was evidence on the record that the State of Chhota Udaipur had treated and dealt with the forest as absolute property of the grantee, and it was not proved that the teak trees were reserved trees. The High Court accordingly held that the respondent was entitled to receive compensation in respect of the teak trees. With special leave, the State of Gujarat has appealed to this Court. 3. The High Court found that the respondent was an absolute grantee of the villages under the Sanad, dated August 18, 1885, and the restriction on the power of alienation did not limit the title of the respondent in the lands and in things attached thereto. The respondent was, therefore, the owner of the teak trees. There was also no evidence before the High Court that the teak trees were declared reserved forests either in the territory of the former State of Chhota Udaipur or specifically within the four Jagir villages. 4. for the State in support of the appeal however relied upon the judgment of this Court in Shri U. R. Mavinkurve v. Thakore Madavsinghji Gambhirsinghji. ((1965) 3 SCR 177.) In that case the holder of a Jagir in the State of Gujarat was on the application of the Bombay Merged Territories and Areas (Jagirs Abolition) Act, 1953 (39 of 1954), held not entitled to forests in the Jagir and compensation was denied to him. But the principle of the case has no application to this case. in Mavinkurves case (supra) the State of Bombay which had at the relevant time jurisdiction issued a notification under Section 34-A of the Indian Forest Act, declaring all uncultivated lands in the villages of the Jagir to be forests for the purposes of Chapter V of the Act. On that account the forests were deemed protected forests and the Jagirdar had no right to cut and remove trees from the forest lands as owner and that under the Bombay Land Revenue Code, 1879, the rights of occupancy did not carry the right to the cut and remove trees from forest lands. 5. In the present case there is no evidence of any such notification issued that teak trees formed of the forest. The Jagirdar had absolute rights to the land and therefore to what grew on the land. Under Section 11 of the Act the Jagirdar was entitled to compensation for trees or structures on the lands. The right of the Jagirdar to the teak trees not being extinguished or restricted by a notification issued under the Indian Forest Act, the High Court was, in our judgment, right in holding that he was entitled to compensation for the teak trees. | 0[ds]4. for the State in support of the appeal however relied upon the judgment of this Court in Shri U. R. Mavinkurve v. Thakore Madavsinghji Gambhirsinghji. ((1965) 3 SCR 177.) In that case the holder of a Jagir in the State of Gujarat was on the application of the Bombay Merged Territories and Areas (Jagirs Abolition) Act, 1953 (39 of 1954), held not entitled to forests in the Jagir and compensation was denied to him.But the principle of the case has no application to this case. in Mavinkurves case (supra) the State of Bombay which had at the relevant time jurisdiction issued a notification under SectionA of the Indian Forest Act, declaring all uncultivated lands in the villages of the Jagir to be forests for the purposes of Chapter V of the Act. On that account the forests were deemed protected forests and the Jagirdar had no right to cut and remove trees from the forest lands as owner and that under the Bombay Land Revenue Code, 1879, the rights of occupancy did not carry the right to the cut and remove trees from forest lands5. In the present case there is no evidence of any such notification issued that teak trees formed of the forest. The Jagirdar had absolute rights to the land and therefore to what grew on the land. Under Section 11 of the Act the Jagirdar was entitled to compensation for trees or structures on the lands. The right of the Jagirdar to the teak trees not being extinguished or restricted by a notification issued under the Indian Forest Act, the High Court was, in our judgment, right in holding that he was entitled to compensation for the teak trees. | 0 | 761 | 315 | ### 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:
Shah, J. 1. Kumar Shri Ranjit Singhji Bhavan Singhji - hereinafter called the respondent - was the holder of a Jagir of four villages - Saloz, Vaurkhan, Kambalad and Thambla in Taluka, Jambegam, District Baroda. These villages were granted by a Sanad, dated August 18, 1885, to the father of the respondent by then Ruler of Chhota Udaipur. By the Bombay Merger Territories and Areas (Jagirs Abolition) Act 39 of 1954 with effect from August 1, 1954, the Jagir of the respondent stood abolished. Under the provisions of the Act the respondent became entitled to compensation provided under the Act. The respondent preferred a claim for compensation under the Act. The Jagir Abolition Officer held that no compensation was payable in respect of teak tress, because in the Chhota Udaipur State teak trees were reserved trees, and no convincing evidence had been produced by the Jagirdar that he enjoyed any right to reserved trees. The Gujarat Revenue Tribunal confirmed the order of the Jagir Abolition Officer. The Tribunal held that the Sanad granted to the respondents father related merely to the right of usufruct of the villages and the grantee was expressly prohibited from mortgaging, selling or disposing of the same in any manner. That prohibition in the view of the Tribunal applied to teak trees as well. 2. The respondent moved a petition in the High Court of Gujarat for a writ quashing the order of the Tribunal. The High Court held that there was evidence on the record that the State of Chhota Udaipur had treated and dealt with the forest as absolute property of the grantee, and it was not proved that the teak trees were reserved trees. The High Court accordingly held that the respondent was entitled to receive compensation in respect of the teak trees. With special leave, the State of Gujarat has appealed to this Court. 3. The High Court found that the respondent was an absolute grantee of the villages under the Sanad, dated August 18, 1885, and the restriction on the power of alienation did not limit the title of the respondent in the lands and in things attached thereto. The respondent was, therefore, the owner of the teak trees. There was also no evidence before the High Court that the teak trees were declared reserved forests either in the territory of the former State of Chhota Udaipur or specifically within the four Jagir villages. 4. for the State in support of the appeal however relied upon the judgment of this Court in Shri U. R. Mavinkurve v. Thakore Madavsinghji Gambhirsinghji. ((1965) 3 SCR 177.) In that case the holder of a Jagir in the State of Gujarat was on the application of the Bombay Merged Territories and Areas (Jagirs Abolition) Act, 1953 (39 of 1954), held not entitled to forests in the Jagir and compensation was denied to him. But the principle of the case has no application to this case. in Mavinkurves case (supra) the State of Bombay which had at the relevant time jurisdiction issued a notification under Section 34-A of the Indian Forest Act, declaring all uncultivated lands in the villages of the Jagir to be forests for the purposes of Chapter V of the Act. On that account the forests were deemed protected forests and the Jagirdar had no right to cut and remove trees from the forest lands as owner and that under the Bombay Land Revenue Code, 1879, the rights of occupancy did not carry the right to the cut and remove trees from forest lands. 5. In the present case there is no evidence of any such notification issued that teak trees formed of the forest. The Jagirdar had absolute rights to the land and therefore to what grew on the land. Under Section 11 of the Act the Jagirdar was entitled to compensation for trees or structures on the lands. The right of the Jagirdar to the teak trees not being extinguished or restricted by a notification issued under the Indian Forest Act, the High Court was, in our judgment, right in holding that he was entitled to compensation for the teak trees.
### Response:
0
### Explanation:
4. for the State in support of the appeal however relied upon the judgment of this Court in Shri U. R. Mavinkurve v. Thakore Madavsinghji Gambhirsinghji. ((1965) 3 SCR 177.) In that case the holder of a Jagir in the State of Gujarat was on the application of the Bombay Merged Territories and Areas (Jagirs Abolition) Act, 1953 (39 of 1954), held not entitled to forests in the Jagir and compensation was denied to him.But the principle of the case has no application to this case. in Mavinkurves case (supra) the State of Bombay which had at the relevant time jurisdiction issued a notification under SectionA of the Indian Forest Act, declaring all uncultivated lands in the villages of the Jagir to be forests for the purposes of Chapter V of the Act. On that account the forests were deemed protected forests and the Jagirdar had no right to cut and remove trees from the forest lands as owner and that under the Bombay Land Revenue Code, 1879, the rights of occupancy did not carry the right to the cut and remove trees from forest lands5. In the present case there is no evidence of any such notification issued that teak trees formed of the forest. The Jagirdar had absolute rights to the land and therefore to what grew on the land. Under Section 11 of the Act the Jagirdar was entitled to compensation for trees or structures on the lands. The right of the Jagirdar to the teak trees not being extinguished or restricted by a notification issued under the Indian Forest Act, the High Court was, in our judgment, right in holding that he was entitled to compensation for the teak trees.
|
Citibank N.A Vs. Statndard Chartered Bank | the section, performance "by a stranger, accepted by the promisee, produces the result of discharging the promisor, although the latter has neither authorised nor ratified the act of the third party."52. The learned Special Court tell in error in holding that S.41 of the Contract Act would be more appropriately applicable. S.41 for the reasons set out above would not be applicable to the facts of the present case. It also fell in error in holding that Citi Bank did not plead complete discharge from performing its obligation in terms of S.63. In our opinion, Citi Bank has specifically pleaded that it stood discharged from the performance of the original obligation on the delivery of SGLs to the SCB, which were asked for and accepted by SCB for reasons best known to it, SCB instead of the original satisfaction accepted another satisfaction, deemed fit by it, in terms of S.63 of the Indian Contract Act." 47. Learned Special Court recorded a finding that SCB by accepting BR 1401 of CANFINA at the highest agreed to act as an agent of Citibank and colle9t bonds of the face value of Rs. 50 crores from CANFINA and appropriate them towards Citibanks obligation to deliver the bonds of the face value of Rs. 50 crores. If CANFINA refused, then, there was no way that the SCB could enforce any claim against CANFINA as there was no contract between CANFINA and SCB. Under the circumstances the obligation of the Citibank to deliver the bonds would not stand discharged unless such time the SCB received the said bonds. The learned Special Court has erred in recording the abovesaid finding. The question of conferring authority or constituting SCB agent of Citibank for receiving bonds from CANFINA are matters of fact. In the absence of any issue or evidence led by SCB, the burden cast on SCB could not be deemed to be discharged. The finding recorded by the Special Court that SCB acted as an agent of Citibank is not sustainable. 48. When SCB discharged Citibank from its obligation under BR 47 by endorsement and delivery thereof to Citibank, it would be inconceivable that simultaneously it would make the discharge conditional on SCB being able to obtain bonds from CANFINA. An agent acts only for his principal and the collection of bonds, if at all, would be for the benefit of Citibank and not for SCB. It is not even pleaded by SCB that SCB was given authority to appropriate the bonds to itself. 49. Shri Shanti Bhushan, learned senior advocate during the course of the arguments placed reliance on the following judgments to contend that discharge was conditional. Mohan Lal Jogani Rice & Atta Mills v. Ramlal Onkarmal Firm and Ors. AIR 1957 Assam 133; Maung Chit v. Roshan AIR 1934 Rang 389 : ILR 12 Rang 500 (FB); Ramdayal v. Maji Devdiji AIR 1956 Raj. 12 : Kandswami Gounder v. K.P. Sivasubramania Iyer AIR 1963 Mad. 16 : 1962 (2) MLJ 518 ; Firm Basdeo Ram Sarup v. Firm Dilsukharai Sewak Ram AIR 1922 All.461 ; Firm Budhu Mal v. Gokal Chand and Ors. AIR 1926 Lah. 328 : ILR 7 Lah. 113; Har Chandi Lal v. Sheoraj Singh AIR 1916 PC 68; Chegamull Suganmull v. V. Govindswami Chetty (AIR 1928 Mad. 972 ). 50. Most of these judgments were cited before us during the course of the hearing of the Citibanks case (supra). The same were distinguished and after elaborate discussion, it was held that none of these cases would be applicable to the facts of the present case (refer to para.57). It was observed in para.59 as follows: "In the present case, as stated in the foregoing paragraphs, SCB had substituted its original satisfaction by asking for and taking SCB of CMF as deemed fit for its own reasons which have not been disclosed to the Court. The cases cited by Mr. Nariman referred to in this paragraph under the circumstances would have no applicability." 51. In view of our discussion in the Citibanks earlier cases, we need not to discuss individual authorities cited at the bar. 52. A faint attempt was made in the end to contend that even if the Court comes to the conclusion that as a matter of fact Citibank is discharged under S.63 of the Indian Contract Act the decree should not be reversed and the same should only be modified by this Court in exercise of its special jurisdiction under Art.142 to do complete justice between the parties. In case both the decrees in the suit Nos. 24 of 1994 and 1 of 1995 are reversed, CANFINA would be unjustly enriched and SCB would lose Rs. 50 crores with interest and such a result would be contrary to all notions of justice. It was contended that irrespective of any view this court may take on documents, the Court has the power to do complete justice between the parties under Art.142 of the Constitution of India by maintaining the decree in favour of SCB. Suit No. 24 of 1994 and Suit No. 1 of 1995 were back to back suits and the enforcement of decree in Suit No. 1 of 1995 was contingent upon a decree being passed in Suit No. 24 of 1994. Acceptance of the submission of SCB would be that this Court would be passing a decree against CANFINA indirectly. Submission of SCB that since a decree has been passed in the contingent suit, to the extent of decretal amount paid in the contingent suit, suit filed by SCB should be decreed, cannot be accepted. Similar submission was rejected after elaborate discussion by this Court in Citibanks case (supra). It was observed that: "Acceptance of the submission of SCB would mean that though SCBs suit does not deserve to succeed but still it be maintained by passing a decree in the contingent suit which cannot be done. It would be a travesty of justice rather than doing justice". (Refer to SCC p. 41, para.60). | 1[ds]42. Admittedly, the original BR 47 was discharged and delivered back to Citibank. The same has been produced by the Citibank from its possession. The return of original with an endorsement on its reverse duly signed by the officer of SCB amounts to discharge of the BR. This was the mode of discharge of BRs. The discharged BR being in possession of the Citibank would raise a presumption in law under S.114 of the Indian Evidence Act, 1872, that the BR stood duly discharged. S.114 of the Evidence Act provides that the Court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustration (i) of S.114 provides that Court may presume that when a document creating an obligation is in the hands of the obligor, the obligation has been discharged. BR 47 dated 19.2.1992 was in the custody of the Citibank. Its possession would raise a rebuttal presumption of the discharge of the said BR. The onus to rebut the presumption was upon SCB. SCB has failed to rebut the presumption by leading any evidence that the obligation under BR 47 did not stand discharged. Finding recorded by the Special Court that there was nothing on the record to show that there was an absolute discharge granted to the Citibank by SCB cannot be accepted.For the reasons stated above, it is held that SCB voluntarily and unconditionally received and accepted non transferable CANFINAs BR 1401 with an obvious inference that SCB desired the said CANFINA BR for its own purpose for the reasons best known towas contended that irrespective of any view this court may take on documents, the Court has the power to do complete justice between the parties under Art.142 of the Constitution of India by maintaining the decree in favour of SCB. Suit No. 24 of 1994 and Suit No. 1 of 1995 were back to back suits and the enforcement of decree in Suit No. 1 of 1995 was contingent upon a decree being passed in Suit No. 24 of 1994. Acceptance of the submission of SCB would be that this Court would be passing a decree against CANFINA indirectly. Submission of SCB that since a decree has been passed in the contingent suit, to the extent of decretal amount paid in the contingent suit, suit filed by SCB should be decreed, cannot beneed not deal with the contentions raised by learned senior counsel as we have accepted the Civil Appeal No. 7426 of 1996 and set aside the decree passed against the Citibank in Suit No. 24 of 1994. The consequence of the acceptance of the said appeal would be that this appeal is accepted.In view of acceptance of Civil Appeal No. 9063 of 1996 and as a consequence dismissal of the suit No. 1 of 1995 filed by the Citibank, this appeal has become infructuous and disposed of as such. | 1 | 10,212 | 553 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
the section, performance "by a stranger, accepted by the promisee, produces the result of discharging the promisor, although the latter has neither authorised nor ratified the act of the third party."52. The learned Special Court tell in error in holding that S.41 of the Contract Act would be more appropriately applicable. S.41 for the reasons set out above would not be applicable to the facts of the present case. It also fell in error in holding that Citi Bank did not plead complete discharge from performing its obligation in terms of S.63. In our opinion, Citi Bank has specifically pleaded that it stood discharged from the performance of the original obligation on the delivery of SGLs to the SCB, which were asked for and accepted by SCB for reasons best known to it, SCB instead of the original satisfaction accepted another satisfaction, deemed fit by it, in terms of S.63 of the Indian Contract Act." 47. Learned Special Court recorded a finding that SCB by accepting BR 1401 of CANFINA at the highest agreed to act as an agent of Citibank and colle9t bonds of the face value of Rs. 50 crores from CANFINA and appropriate them towards Citibanks obligation to deliver the bonds of the face value of Rs. 50 crores. If CANFINA refused, then, there was no way that the SCB could enforce any claim against CANFINA as there was no contract between CANFINA and SCB. Under the circumstances the obligation of the Citibank to deliver the bonds would not stand discharged unless such time the SCB received the said bonds. The learned Special Court has erred in recording the abovesaid finding. The question of conferring authority or constituting SCB agent of Citibank for receiving bonds from CANFINA are matters of fact. In the absence of any issue or evidence led by SCB, the burden cast on SCB could not be deemed to be discharged. The finding recorded by the Special Court that SCB acted as an agent of Citibank is not sustainable. 48. When SCB discharged Citibank from its obligation under BR 47 by endorsement and delivery thereof to Citibank, it would be inconceivable that simultaneously it would make the discharge conditional on SCB being able to obtain bonds from CANFINA. An agent acts only for his principal and the collection of bonds, if at all, would be for the benefit of Citibank and not for SCB. It is not even pleaded by SCB that SCB was given authority to appropriate the bonds to itself. 49. Shri Shanti Bhushan, learned senior advocate during the course of the arguments placed reliance on the following judgments to contend that discharge was conditional. Mohan Lal Jogani Rice & Atta Mills v. Ramlal Onkarmal Firm and Ors. AIR 1957 Assam 133; Maung Chit v. Roshan AIR 1934 Rang 389 : ILR 12 Rang 500 (FB); Ramdayal v. Maji Devdiji AIR 1956 Raj. 12 : Kandswami Gounder v. K.P. Sivasubramania Iyer AIR 1963 Mad. 16 : 1962 (2) MLJ 518 ; Firm Basdeo Ram Sarup v. Firm Dilsukharai Sewak Ram AIR 1922 All.461 ; Firm Budhu Mal v. Gokal Chand and Ors. AIR 1926 Lah. 328 : ILR 7 Lah. 113; Har Chandi Lal v. Sheoraj Singh AIR 1916 PC 68; Chegamull Suganmull v. V. Govindswami Chetty (AIR 1928 Mad. 972 ). 50. Most of these judgments were cited before us during the course of the hearing of the Citibanks case (supra). The same were distinguished and after elaborate discussion, it was held that none of these cases would be applicable to the facts of the present case (refer to para.57). It was observed in para.59 as follows: "In the present case, as stated in the foregoing paragraphs, SCB had substituted its original satisfaction by asking for and taking SCB of CMF as deemed fit for its own reasons which have not been disclosed to the Court. The cases cited by Mr. Nariman referred to in this paragraph under the circumstances would have no applicability." 51. In view of our discussion in the Citibanks earlier cases, we need not to discuss individual authorities cited at the bar. 52. A faint attempt was made in the end to contend that even if the Court comes to the conclusion that as a matter of fact Citibank is discharged under S.63 of the Indian Contract Act the decree should not be reversed and the same should only be modified by this Court in exercise of its special jurisdiction under Art.142 to do complete justice between the parties. In case both the decrees in the suit Nos. 24 of 1994 and 1 of 1995 are reversed, CANFINA would be unjustly enriched and SCB would lose Rs. 50 crores with interest and such a result would be contrary to all notions of justice. It was contended that irrespective of any view this court may take on documents, the Court has the power to do complete justice between the parties under Art.142 of the Constitution of India by maintaining the decree in favour of SCB. Suit No. 24 of 1994 and Suit No. 1 of 1995 were back to back suits and the enforcement of decree in Suit No. 1 of 1995 was contingent upon a decree being passed in Suit No. 24 of 1994. Acceptance of the submission of SCB would be that this Court would be passing a decree against CANFINA indirectly. Submission of SCB that since a decree has been passed in the contingent suit, to the extent of decretal amount paid in the contingent suit, suit filed by SCB should be decreed, cannot be accepted. Similar submission was rejected after elaborate discussion by this Court in Citibanks case (supra). It was observed that: "Acceptance of the submission of SCB would mean that though SCBs suit does not deserve to succeed but still it be maintained by passing a decree in the contingent suit which cannot be done. It would be a travesty of justice rather than doing justice". (Refer to SCC p. 41, para.60).
### Response:
1
### Explanation:
42. Admittedly, the original BR 47 was discharged and delivered back to Citibank. The same has been produced by the Citibank from its possession. The return of original with an endorsement on its reverse duly signed by the officer of SCB amounts to discharge of the BR. This was the mode of discharge of BRs. The discharged BR being in possession of the Citibank would raise a presumption in law under S.114 of the Indian Evidence Act, 1872, that the BR stood duly discharged. S.114 of the Evidence Act provides that the Court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustration (i) of S.114 provides that Court may presume that when a document creating an obligation is in the hands of the obligor, the obligation has been discharged. BR 47 dated 19.2.1992 was in the custody of the Citibank. Its possession would raise a rebuttal presumption of the discharge of the said BR. The onus to rebut the presumption was upon SCB. SCB has failed to rebut the presumption by leading any evidence that the obligation under BR 47 did not stand discharged. Finding recorded by the Special Court that there was nothing on the record to show that there was an absolute discharge granted to the Citibank by SCB cannot be accepted.For the reasons stated above, it is held that SCB voluntarily and unconditionally received and accepted non transferable CANFINAs BR 1401 with an obvious inference that SCB desired the said CANFINA BR for its own purpose for the reasons best known towas contended that irrespective of any view this court may take on documents, the Court has the power to do complete justice between the parties under Art.142 of the Constitution of India by maintaining the decree in favour of SCB. Suit No. 24 of 1994 and Suit No. 1 of 1995 were back to back suits and the enforcement of decree in Suit No. 1 of 1995 was contingent upon a decree being passed in Suit No. 24 of 1994. Acceptance of the submission of SCB would be that this Court would be passing a decree against CANFINA indirectly. Submission of SCB that since a decree has been passed in the contingent suit, to the extent of decretal amount paid in the contingent suit, suit filed by SCB should be decreed, cannot beneed not deal with the contentions raised by learned senior counsel as we have accepted the Civil Appeal No. 7426 of 1996 and set aside the decree passed against the Citibank in Suit No. 24 of 1994. The consequence of the acceptance of the said appeal would be that this appeal is accepted.In view of acceptance of Civil Appeal No. 9063 of 1996 and as a consequence dismissal of the suit No. 1 of 1995 filed by the Citibank, this appeal has become infructuous and disposed of as such.
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