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Management of Pratap Press, New Delhi Vs. Secretary, Delhi Press Workers' Union Delhi | impossible to lay down any one test as an absolute and invariable test for all cases it observed that the real purpose of these tests would be to find out the true relation between the parts, branches, units etc. This court however mentioned certain tests which might be useful in deciding whether two units form part of the same establishment. Unity of ownership, unit of management and control, unity of finance and unity of labour, unity of employment and unity of functional "integrality" were the tests which the Court applied in that case. It is obvious there is an essential difference between the question whether the two units form part of one establishment for the purposes of section 25E (iii) and the question whether they form part of one single industry for the purposes of calculation of the surplus profits for distribution of bonus to workmen in one of the units. Some assistance can still nevertheless be obtained from the enumeration of the tests in that case. Of all these tests the most important appears to us to be that of functional "integrality" and the question of unity of finance and employment and of labour. Unity of ownership exists ex hypothesi. Where two units belong to a proprietor there is almost always likelihood also unity of management.In all such cases therefore the Court has to consider with care how far there is "functional integrality" meaning thereby such functional interdependence that one unit cannot exist conveniently and reasonably without the other and on the further question whether in matters of finance and employment the employer has actually kept the two units distinct or integrated.6. Coming now to the facts of the present appeals we find that the functions of the Press and the Vir Arjun paper cannot be considered to be so interdependent that one cannot exist without the other. That may presses exist without any paper being published by the same owner is common knowledge and is not seriously disputed. Nor is it disputed that an industry of publishing a paper may well exist without the same owner running a press for the printing of the paper. The very fact that Daily Pratap owned by a partnership firm, was being printed at the Pratap Press belonging to Shri Narendra itself shows this very clearly. It cannot therefore be said that there is such functional interdependence between the press unit and the paper unit that the two should reasonably be considered as forming one industrial unit.7. Along with this it is necessary to consider the conduct of the businessman himself. Has he mixed up the capital of the two, the profits of the two and the labour force of the two units? These are matters on which the employer is the best person to give evidence from he records of his concerns. No evidence has however been produced to show that at any time before the dispute was raised the treated the capital employed in the two units as coming from one single capital fund, nor anything to show that he pooled the profits or that the workmen were treated as belonging to one establishment. It is interesting to note that there is no record showing whether for his own purposes he treated the assets of the two units as forming one composite whole or the assets of two distinct units has been produced. The profit and loss accounts which we find on the record appear to have been prepared sometime in December 26, 1951, - apparently after the reference had been made and the dispute whether these units were one or two, had arisen. No weight can therefore be attached to the fact that in this profit and loss account - both the receipts from the press and the receipts from the Vir Arjun were shown as the income.8. Some account-books appear to have been produced in Court but it is nobodys case that these throw any light on the question whether the capital fund or the labour force for the two units were treated as one and the same. It is reasonable to think that the account-books were produced only to show the actual working results of the Vir Arjun. It has to be noticed that the Tribunal thought that the account had not been kept in a satisfactory manner and there was room for suspicion about the correctness of the same.9. The position therefore is that the activities of the press unit are independent of the activities of the paper unit and there is no record from which it can be ascertained how the employer himself treated these two units. When in this position of things we find the employer himself making a statement that "there are two institutions, the Vir Arjun and the press, the account books are kept separately" and that "there are two cashiers," the conclusion reached by the Tribunal that the Press and the Vir Arjun paper are distinct and separate industrial units appears to be reasonable and cannot be successfully challenged.10. Once this conclusion is reached the question of what bonus is payable depends on a proper calculation of the available surplus of the Pratap Press itself without taking into consideration the loss incurred by the Vir Arjun. No objection has been taken before us to the calculation made by the Tribunal on that basis. As the only point raised in this appeal, viz., that the Vir Arjun and the Pratap Press form one industrial unit fails the appeal is dismissed with costs.11. The position is the same in the other appeal i.e., Appeal No. 189 of 1959. There also the only question raised is that the Pratap Press and the Vir Arjun are two part of two industrial unit. For the reasons already mentioned in the first appeal we must hold that these must be held to be distinct industrial units and that the workmen of the Press are entitled to such bonus as the working results of the Pratap Press justify. | 0[ds]6. Coming now to the facts of the present appeals we find that the functions of the Press and the Vir Arjun paper cannot be considered to be so interdependent that one cannot exist without the other. That may presses exist without any paper being published by the same owner is common knowledge and is not seriously disputed. Nor is it disputed that an industry of publishing a paper may well exist without the same owner running a press for the printing of the paper. The very fact that Daily Pratap owned by a partnership firm, was being printed at the Pratap Press belonging to Shri Narendra itself shows this very clearly. It cannot therefore be said that there is such functional interdependence between the press unit and the paper unit that the two should reasonably be considered as forming one industrialare matters on which the employer is the best person to give evidence from he records of his concerns. No evidence has however been produced to show that at any time before the dispute was raised the treated the capital employed in the two units as coming from one single capital fund, nor anything to show that he pooled the profits or that the workmen were treated as belonging to one establishment. It is interesting to note that there is no record showing whether for his own purposes he treated the assets of the two units as forming one composite whole or the assets of two distinct units has been produced. The profit and loss accounts which we find on the record appear to have been prepared sometime in December 26, 1951,apparently after the reference had been made and the dispute whether these units were one or two, had arisen. No weight can therefore be attached to the fact that in this profit and loss accountboth the receipts from the press and the receipts from the Vir Arjun were shown as the income.8. Someappear to have been produced in Court but it is nobodys case that these throw any light on the question whether the capital fund or the labour force for the two units were treated as one and the same. It is reasonable to think that thewere produced only to show the actual working results of the Vir Arjun. It has to be noticed that the Tribunal thought that the account had not been kept in a satisfactory manner and there was room for suspicion about the correctness of the same.9. The position therefore is that the activities of the press unit are independent of the activities of the paper unit and there is no record from which it can be ascertained how the employer himself treated these two units. When in this position of things we find the employer himself making a statement that "there are two institutions, the Vir Arjun and the press, the account books are kept separately" and that "there are two cashiers," the conclusion reached by the Tribunal that the Press and the Vir Arjun paper are distinct and separate industrial units appears to be reasonable and cannot be successfully challenged.10. Once this conclusion is reached the question of what bonus is payable depends on a proper calculation of the available surplus of the Pratap Press itself without taking into consideration the loss incurred by the Vir Arjun. No objection has been taken before us to the calculation made by the Tribunal on that basis. As the only point raised in this appeal, viz., that the Vir Arjun and the Pratap Press form one industrial unit fails the appeal is dismissed with costs.11. The position is the same in the other appeal i.e., Appeal No. 189 of 1959. There also the only question raised is that the Pratap Press and the Vir Arjun are two part of two industrial unit. For the reasons already mentioned in the first appeal we must hold that these must be held to be distinct industrial units and that the workmen of the Press are entitled to such bonus as the working results of the Pratap Press | 0 | 2,604 | 725 | ### 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:
impossible to lay down any one test as an absolute and invariable test for all cases it observed that the real purpose of these tests would be to find out the true relation between the parts, branches, units etc. This court however mentioned certain tests which might be useful in deciding whether two units form part of the same establishment. Unity of ownership, unit of management and control, unity of finance and unity of labour, unity of employment and unity of functional "integrality" were the tests which the Court applied in that case. It is obvious there is an essential difference between the question whether the two units form part of one establishment for the purposes of section 25E (iii) and the question whether they form part of one single industry for the purposes of calculation of the surplus profits for distribution of bonus to workmen in one of the units. Some assistance can still nevertheless be obtained from the enumeration of the tests in that case. Of all these tests the most important appears to us to be that of functional "integrality" and the question of unity of finance and employment and of labour. Unity of ownership exists ex hypothesi. Where two units belong to a proprietor there is almost always likelihood also unity of management.In all such cases therefore the Court has to consider with care how far there is "functional integrality" meaning thereby such functional interdependence that one unit cannot exist conveniently and reasonably without the other and on the further question whether in matters of finance and employment the employer has actually kept the two units distinct or integrated.6. Coming now to the facts of the present appeals we find that the functions of the Press and the Vir Arjun paper cannot be considered to be so interdependent that one cannot exist without the other. That may presses exist without any paper being published by the same owner is common knowledge and is not seriously disputed. Nor is it disputed that an industry of publishing a paper may well exist without the same owner running a press for the printing of the paper. The very fact that Daily Pratap owned by a partnership firm, was being printed at the Pratap Press belonging to Shri Narendra itself shows this very clearly. It cannot therefore be said that there is such functional interdependence between the press unit and the paper unit that the two should reasonably be considered as forming one industrial unit.7. Along with this it is necessary to consider the conduct of the businessman himself. Has he mixed up the capital of the two, the profits of the two and the labour force of the two units? These are matters on which the employer is the best person to give evidence from he records of his concerns. No evidence has however been produced to show that at any time before the dispute was raised the treated the capital employed in the two units as coming from one single capital fund, nor anything to show that he pooled the profits or that the workmen were treated as belonging to one establishment. It is interesting to note that there is no record showing whether for his own purposes he treated the assets of the two units as forming one composite whole or the assets of two distinct units has been produced. The profit and loss accounts which we find on the record appear to have been prepared sometime in December 26, 1951, - apparently after the reference had been made and the dispute whether these units were one or two, had arisen. No weight can therefore be attached to the fact that in this profit and loss account - both the receipts from the press and the receipts from the Vir Arjun were shown as the income.8. Some account-books appear to have been produced in Court but it is nobodys case that these throw any light on the question whether the capital fund or the labour force for the two units were treated as one and the same. It is reasonable to think that the account-books were produced only to show the actual working results of the Vir Arjun. It has to be noticed that the Tribunal thought that the account had not been kept in a satisfactory manner and there was room for suspicion about the correctness of the same.9. The position therefore is that the activities of the press unit are independent of the activities of the paper unit and there is no record from which it can be ascertained how the employer himself treated these two units. When in this position of things we find the employer himself making a statement that "there are two institutions, the Vir Arjun and the press, the account books are kept separately" and that "there are two cashiers," the conclusion reached by the Tribunal that the Press and the Vir Arjun paper are distinct and separate industrial units appears to be reasonable and cannot be successfully challenged.10. Once this conclusion is reached the question of what bonus is payable depends on a proper calculation of the available surplus of the Pratap Press itself without taking into consideration the loss incurred by the Vir Arjun. No objection has been taken before us to the calculation made by the Tribunal on that basis. As the only point raised in this appeal, viz., that the Vir Arjun and the Pratap Press form one industrial unit fails the appeal is dismissed with costs.11. The position is the same in the other appeal i.e., Appeal No. 189 of 1959. There also the only question raised is that the Pratap Press and the Vir Arjun are two part of two industrial unit. For the reasons already mentioned in the first appeal we must hold that these must be held to be distinct industrial units and that the workmen of the Press are entitled to such bonus as the working results of the Pratap Press justify.
### Response:
0
### Explanation:
6. Coming now to the facts of the present appeals we find that the functions of the Press and the Vir Arjun paper cannot be considered to be so interdependent that one cannot exist without the other. That may presses exist without any paper being published by the same owner is common knowledge and is not seriously disputed. Nor is it disputed that an industry of publishing a paper may well exist without the same owner running a press for the printing of the paper. The very fact that Daily Pratap owned by a partnership firm, was being printed at the Pratap Press belonging to Shri Narendra itself shows this very clearly. It cannot therefore be said that there is such functional interdependence between the press unit and the paper unit that the two should reasonably be considered as forming one industrialare matters on which the employer is the best person to give evidence from he records of his concerns. No evidence has however been produced to show that at any time before the dispute was raised the treated the capital employed in the two units as coming from one single capital fund, nor anything to show that he pooled the profits or that the workmen were treated as belonging to one establishment. It is interesting to note that there is no record showing whether for his own purposes he treated the assets of the two units as forming one composite whole or the assets of two distinct units has been produced. The profit and loss accounts which we find on the record appear to have been prepared sometime in December 26, 1951,apparently after the reference had been made and the dispute whether these units were one or two, had arisen. No weight can therefore be attached to the fact that in this profit and loss accountboth the receipts from the press and the receipts from the Vir Arjun were shown as the income.8. Someappear to have been produced in Court but it is nobodys case that these throw any light on the question whether the capital fund or the labour force for the two units were treated as one and the same. It is reasonable to think that thewere produced only to show the actual working results of the Vir Arjun. It has to be noticed that the Tribunal thought that the account had not been kept in a satisfactory manner and there was room for suspicion about the correctness of the same.9. The position therefore is that the activities of the press unit are independent of the activities of the paper unit and there is no record from which it can be ascertained how the employer himself treated these two units. When in this position of things we find the employer himself making a statement that "there are two institutions, the Vir Arjun and the press, the account books are kept separately" and that "there are two cashiers," the conclusion reached by the Tribunal that the Press and the Vir Arjun paper are distinct and separate industrial units appears to be reasonable and cannot be successfully challenged.10. Once this conclusion is reached the question of what bonus is payable depends on a proper calculation of the available surplus of the Pratap Press itself without taking into consideration the loss incurred by the Vir Arjun. No objection has been taken before us to the calculation made by the Tribunal on that basis. As the only point raised in this appeal, viz., that the Vir Arjun and the Pratap Press form one industrial unit fails the appeal is dismissed with costs.11. The position is the same in the other appeal i.e., Appeal No. 189 of 1959. There also the only question raised is that the Pratap Press and the Vir Arjun are two part of two industrial unit. For the reasons already mentioned in the first appeal we must hold that these must be held to be distinct industrial units and that the workmen of the Press are entitled to such bonus as the working results of the Pratap Press
|
P. Kumaraswamy Vs. State Transport Appellate Tribunal, Madras And Anr | Section 47".4. There is no doubt that bus transport is calculated to benefit the public and it is in the fitness of things that the interest of the traveling public is highlighted while evaluating the relevant worth of the various claimants.There are two circumstances which require to be stressed because they have been overlooked by the appellate tribunal in its disposal of the comparative merits of the rival claimants. Sub-rule (5)(i) of Rule 155-A states that preference shall, other things being equal, be given in the disposal of applications in respect of short routes.......to persons who have not held any permit for a stage carriage. Among the considerations which must weigh with the authorities entrusted with the power to grant permits, is business or technical experience in the field of motor vehicles operation. Rule 155-A in Item (D), sub-rule (3) specifically states "two marks shall be awarded to the applicants who have business or technical experience in the road transport service as defined in clause (a) of Section 68-A of any class of transport vehicles for a period of ten years or more".5. Having regard to the marking system as adumbrated in rule 155-A, a broad sheet was apparently prepared and the appellant before us (Applicant No. 6) secured 4 marks as against the second respondent (Applicant No. 3) who got 3.10 marks. Ordinarily, therefore, the applicant who got higher marks should have won the battle. Moreover, in a short route, as in this case, the rule contemplates preference being given to a new entrant, of course, other things being equal. In this case, therefore, the appellant before us, being admittedly a new entrant, was entitled to preference, the route being a short one, other things being equal. The short question that, therefore, fell before the Appellate Authority was as to whether other things were equal. This aspect attracted the attention of the Appellate Authority, but its consideration unfortunately was unsatisfactory. The Appellate Tribunal observed that though the Applicant No. 6 had secured higher marks than Applicant No. 3: "I am inclined, having regard to the public interest in the matter of passenger transport service, to agree with the appellants contention that the respondents experience as lorry operator cannot be equated with the appellants experience in bus operation." This view, according to him, is tenable under Section 47 (1) since this matter involves grant of bus permit. "The fact that the appellants are bus operators, must necessarily over-ride the fact of the respondent being a lorry operator. Though the route in question is a short route and there is a new entrant like the respondent, the respondent cannot automatically be preferred in the absence of other things being equal, in accordance with clause 5(1) of Rule 155-A".The error that has crept into the order of the Appellate Tribunal consists in thinking that the rules or guidelines could be discarded in the name of Section 47 (1). Actually, Rule 155-A is in implementation of Section 47(1), but is not exhaustive of all the considerations that will prevail in a given situation. Therefore, it is that there is jurisdiction given to the Tribunal to take note of other considerations in public interest flowing out of Section 47(1). Not that the sub-rules of Rule 155-A can be discarded, but that they may be supplemented or outweighed. Not that, in the name of public interest, something opposed to the sub-rules o f Rule 155-A can be done but that, within the combined framework of Section 47(1) and rule 155-A, there is scope for play of the jurisdiction of the Tribunal to promote public interest. Viewed in this perspective the Appellate Tribunal has actually contravened Rule 155(3)(D). That provision expressly accords two marks for applicants who have a certain experience in road transport service. Road transport service is defined in clause (a) of Section 68-A and this definition is specifically incorporated in Rule 155-A (3) (D). It follows that the rule makes no distinction between the type of transport vehicle in which experience has been gained whether it be a passenger transport or a lorry transport. The view taken by the appellate tribunal that because the permit is for passenger transport, lorry service experience, even if it falls under Rule 155-A (3) (D), can be ignored, is therefore, illegal. A relevant factor has thus been wrongly excluded.6. Connected with the same flaw is what we have earlier indicated namely, that the Appellate Tribunal has held that the new entrant (Applicant No. 6) need not be given the preference he is eligible for under Rule 155-A (5) because other things are not equal. According to him, other things not equal because Applicant No. 6 has lorry transport experience while Applicant No. 3 has bus transport experience. We have already explained that this is a fallacy. In this view, the preference that flows in favour of applicant No. 6 under Rule 155-A (5) should not have been denied to him for the reasons set out by the Tribunal.For these reasons, the order of the Appellate Tribunal is liable to be quashed. The well-worn ground that mat material consideration, if ignored, makes the order vulnerable, applied. Moreover, these is an apparent misconstruction of the relevant rule by the Appellate Tribunal, as we have explained above.7. This does not mean that this Court will award the permit to one party or the other. That is the function of the statutory body created under the Motor Vehicles Act. Moreover, as Mr. Sen, appearing for the second respondent, has rightly pointed out, his client had m any other grounds to urge before the Appellate Tribunal to establish his superiority, which have not been adverted to by the Appellate Tribunal because on one ground he succeeded. It is only fair, therefore, that the case is remanded to the Appellate Tribunal for being heard de novo wherein both sides (no other applicant will be heard), will be entitled to urge their respective claims, for the single permit that is available to be awarded.8. | 1[ds]There is no doubt that bus transport is calculated to benefit the public and it is in the fitness of things that the interest of the traveling public is highlighted while evaluating the relevant worth of the variouserror that has crept into the order of the Appellate Tribunal consists in thinking that the rules or guidelines could be discarded in the name of Section 47 (1). Actually, Rule 155-A is in implementation of Section 47(1), but is not exhaustive of all the considerations that will prevail in a given situation. Therefore, it is that there is jurisdiction given to the Tribunal to take note of other considerations in public interest flowing out of Section 47(1). Not that the sub-rules of Rule 155-A can be discarded, but that they may be supplemented or outweighed. Not that, in the name of public interest, something opposed to the sub-rules o f Rule 155-A can be done but that, within the combined framework of Section 47(1) and rule 155-A, there is scope for play of the jurisdiction of the Tribunal to promote public interest. Viewed in this perspective the Appellate Tribunal has actually contravened Rule 155(3)(D). That provision expressly accords two marks for applicants who have a certain experience in road transport service. Road transport service is defined in clause (a) of Section 68-A and this definition is specifically incorporated in Rule 155-A (3) (D). It follows that the rule makes no distinction between the type of transport vehicle in which experience has been gained whether it be a passenger transport or a lorry transport. The view taken by the appellate tribunal that because the permit is for passenger transport, lorry service experience, even if it falls under Rule 155-A (3) (D), can be ignored, is therefore, illegal. A relevant factor has thus been wronglywith the same flaw is what we have earlier indicated namely, that the Appellate Tribunal has held that the new entrant (Applicant No. 6) need not be given the preference he is eligible for under Rule 155-A (5) because other things are not equal. According to him, other things not equal because Applicant No. 6 has lorry transport experience while Applicant No. 3 has bus transport experience. We have already explained that this is a fallacy. In this view, the preference that flows in favour of applicant No. 6 under Rule 155-A (5) should not have been denied to him for the reasons set out by the Tribunal.For these reasons, the order of the Appellate Tribunal is liable to be quashed. The well-worn ground that mat material consideration, if ignored, makes the order vulnerable, applied. Moreover, these is an apparent misconstruction of the relevant rule by the Appellate Tribunal, as we have explaineddoes not mean that this Court will award the permit to one party or the other. That is the function of the statutory body created under the Motor Vehicles Act. Moreover, as Mr. Sen, appearing for the second respondent, has rightly pointed out, his client had m any other grounds to urge before the Appellate Tribunal to establish his superiority, which have not been adverted to by the Appellate Tribunal because on one ground he succeeded. It is only fair, therefore, that the case is remanded to the Appellate Tribunal for being heard de novo wherein both sides (no other applicant will be heard), will be entitled to urge their respective claims, for the single permit that is available to be awarded. | 1 | 1,478 | 667 | ### 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:
Section 47".4. There is no doubt that bus transport is calculated to benefit the public and it is in the fitness of things that the interest of the traveling public is highlighted while evaluating the relevant worth of the various claimants.There are two circumstances which require to be stressed because they have been overlooked by the appellate tribunal in its disposal of the comparative merits of the rival claimants. Sub-rule (5)(i) of Rule 155-A states that preference shall, other things being equal, be given in the disposal of applications in respect of short routes.......to persons who have not held any permit for a stage carriage. Among the considerations which must weigh with the authorities entrusted with the power to grant permits, is business or technical experience in the field of motor vehicles operation. Rule 155-A in Item (D), sub-rule (3) specifically states "two marks shall be awarded to the applicants who have business or technical experience in the road transport service as defined in clause (a) of Section 68-A of any class of transport vehicles for a period of ten years or more".5. Having regard to the marking system as adumbrated in rule 155-A, a broad sheet was apparently prepared and the appellant before us (Applicant No. 6) secured 4 marks as against the second respondent (Applicant No. 3) who got 3.10 marks. Ordinarily, therefore, the applicant who got higher marks should have won the battle. Moreover, in a short route, as in this case, the rule contemplates preference being given to a new entrant, of course, other things being equal. In this case, therefore, the appellant before us, being admittedly a new entrant, was entitled to preference, the route being a short one, other things being equal. The short question that, therefore, fell before the Appellate Authority was as to whether other things were equal. This aspect attracted the attention of the Appellate Authority, but its consideration unfortunately was unsatisfactory. The Appellate Tribunal observed that though the Applicant No. 6 had secured higher marks than Applicant No. 3: "I am inclined, having regard to the public interest in the matter of passenger transport service, to agree with the appellants contention that the respondents experience as lorry operator cannot be equated with the appellants experience in bus operation." This view, according to him, is tenable under Section 47 (1) since this matter involves grant of bus permit. "The fact that the appellants are bus operators, must necessarily over-ride the fact of the respondent being a lorry operator. Though the route in question is a short route and there is a new entrant like the respondent, the respondent cannot automatically be preferred in the absence of other things being equal, in accordance with clause 5(1) of Rule 155-A".The error that has crept into the order of the Appellate Tribunal consists in thinking that the rules or guidelines could be discarded in the name of Section 47 (1). Actually, Rule 155-A is in implementation of Section 47(1), but is not exhaustive of all the considerations that will prevail in a given situation. Therefore, it is that there is jurisdiction given to the Tribunal to take note of other considerations in public interest flowing out of Section 47(1). Not that the sub-rules of Rule 155-A can be discarded, but that they may be supplemented or outweighed. Not that, in the name of public interest, something opposed to the sub-rules o f Rule 155-A can be done but that, within the combined framework of Section 47(1) and rule 155-A, there is scope for play of the jurisdiction of the Tribunal to promote public interest. Viewed in this perspective the Appellate Tribunal has actually contravened Rule 155(3)(D). That provision expressly accords two marks for applicants who have a certain experience in road transport service. Road transport service is defined in clause (a) of Section 68-A and this definition is specifically incorporated in Rule 155-A (3) (D). It follows that the rule makes no distinction between the type of transport vehicle in which experience has been gained whether it be a passenger transport or a lorry transport. The view taken by the appellate tribunal that because the permit is for passenger transport, lorry service experience, even if it falls under Rule 155-A (3) (D), can be ignored, is therefore, illegal. A relevant factor has thus been wrongly excluded.6. Connected with the same flaw is what we have earlier indicated namely, that the Appellate Tribunal has held that the new entrant (Applicant No. 6) need not be given the preference he is eligible for under Rule 155-A (5) because other things are not equal. According to him, other things not equal because Applicant No. 6 has lorry transport experience while Applicant No. 3 has bus transport experience. We have already explained that this is a fallacy. In this view, the preference that flows in favour of applicant No. 6 under Rule 155-A (5) should not have been denied to him for the reasons set out by the Tribunal.For these reasons, the order of the Appellate Tribunal is liable to be quashed. The well-worn ground that mat material consideration, if ignored, makes the order vulnerable, applied. Moreover, these is an apparent misconstruction of the relevant rule by the Appellate Tribunal, as we have explained above.7. This does not mean that this Court will award the permit to one party or the other. That is the function of the statutory body created under the Motor Vehicles Act. Moreover, as Mr. Sen, appearing for the second respondent, has rightly pointed out, his client had m any other grounds to urge before the Appellate Tribunal to establish his superiority, which have not been adverted to by the Appellate Tribunal because on one ground he succeeded. It is only fair, therefore, that the case is remanded to the Appellate Tribunal for being heard de novo wherein both sides (no other applicant will be heard), will be entitled to urge their respective claims, for the single permit that is available to be awarded.8.
### Response:
1
### Explanation:
There is no doubt that bus transport is calculated to benefit the public and it is in the fitness of things that the interest of the traveling public is highlighted while evaluating the relevant worth of the variouserror that has crept into the order of the Appellate Tribunal consists in thinking that the rules or guidelines could be discarded in the name of Section 47 (1). Actually, Rule 155-A is in implementation of Section 47(1), but is not exhaustive of all the considerations that will prevail in a given situation. Therefore, it is that there is jurisdiction given to the Tribunal to take note of other considerations in public interest flowing out of Section 47(1). Not that the sub-rules of Rule 155-A can be discarded, but that they may be supplemented or outweighed. Not that, in the name of public interest, something opposed to the sub-rules o f Rule 155-A can be done but that, within the combined framework of Section 47(1) and rule 155-A, there is scope for play of the jurisdiction of the Tribunal to promote public interest. Viewed in this perspective the Appellate Tribunal has actually contravened Rule 155(3)(D). That provision expressly accords two marks for applicants who have a certain experience in road transport service. Road transport service is defined in clause (a) of Section 68-A and this definition is specifically incorporated in Rule 155-A (3) (D). It follows that the rule makes no distinction between the type of transport vehicle in which experience has been gained whether it be a passenger transport or a lorry transport. The view taken by the appellate tribunal that because the permit is for passenger transport, lorry service experience, even if it falls under Rule 155-A (3) (D), can be ignored, is therefore, illegal. A relevant factor has thus been wronglywith the same flaw is what we have earlier indicated namely, that the Appellate Tribunal has held that the new entrant (Applicant No. 6) need not be given the preference he is eligible for under Rule 155-A (5) because other things are not equal. According to him, other things not equal because Applicant No. 6 has lorry transport experience while Applicant No. 3 has bus transport experience. We have already explained that this is a fallacy. In this view, the preference that flows in favour of applicant No. 6 under Rule 155-A (5) should not have been denied to him for the reasons set out by the Tribunal.For these reasons, the order of the Appellate Tribunal is liable to be quashed. The well-worn ground that mat material consideration, if ignored, makes the order vulnerable, applied. Moreover, these is an apparent misconstruction of the relevant rule by the Appellate Tribunal, as we have explaineddoes not mean that this Court will award the permit to one party or the other. That is the function of the statutory body created under the Motor Vehicles Act. Moreover, as Mr. Sen, appearing for the second respondent, has rightly pointed out, his client had m any other grounds to urge before the Appellate Tribunal to establish his superiority, which have not been adverted to by the Appellate Tribunal because on one ground he succeeded. It is only fair, therefore, that the case is remanded to the Appellate Tribunal for being heard de novo wherein both sides (no other applicant will be heard), will be entitled to urge their respective claims, for the single permit that is available to be awarded.
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H.A.K. Rao, Chartered Accountant Vs. Council of Institute of Chartered Accountants of India, New Delhi | is guilty of such other act or omission as may be specified by the Council in this behalf, by notification in the Gazette of India. 11. Now the question is whether the said notification is invalid for any of the reasons mentioned above. It is said that the power of the Council to issue a notification is limited by the express provisions of Cl. (ii) of Part II of the Second Schedule to the Act. As under Cl. (i) of Part II of the Second Schedule to the Act, the contravention of the provisions of the Act or of the Regulations made thereunder was professional misconduct, the argument proceeded the expression "other art or omission" in Cl. (ii) should be an act or omission other than those provided in the Regulations. Elaborating this argument it was said that under Regulation 54-A (2) the appellant in Civil Appeal No. 447 of 1965 had a legal right to canvass within the meaning of the said proviso, that the notification in effect depriving him of that right was in derogation of the said Regulation and, was. therefore, illegal. It was also argued that the said notification was inconsistent With Cl. (4B) of Regulation 54-A, as under that clause canvassing for votes or soliciting votes of electors was prohibited within a distance of 200 meters from the polling booths, thereby impliedly permitting canvassing beyond that distance, and that, therefore, the notification prohibiting canvassing generally was in direct conflict with the same. The further argument was that Cl. (4B) of Regulation 54-A detracted only to a limited extent from the legal right to canvass and that any prohibition against general canvassing beyond the limits laid down by Cl. (4B) of Regulation 54-A contravened both Cl. (2) and C1. (4B) of Regulation 54-A and was bad. 12. The argument at first sight appears to be attractive, but it involves a fallacy. The Regulations enumerated different heads for disciplinary action in connection with the conduct of an election; but they did not, either expressly or by necessary implication, prohibit the Council from adding additional heads of disciplinary action. While the Regulations provide for disciplinary action for undue influence and for canvassing for votes, etc., within a distance of 200 meters from a polling booth, the notification placed other acts and omissions under different heads of misconduct. There is no inherent conflict between undue influence and canvassing of votes by visiting the places of business or the residence of the voters. So too, there is no conflict between canvassing of votes within a distance of 200 meters from a polling booth and canvassing of votes by visiting places of business or residence of voters or in any other manner. All the three can stand together. 13. Nor can we agree that apart from the fundamental rights, which the appellant does not claim in this appeal, he has an unlimited right to canvass for votes, either statutory or otherwise. Nothing has been placed before us to sustain any such right. His rights are defined by the statute and we cannot say that such an unlimited right to canvass is implicit in the right to stand for election. 14. We cannot also agree with the learned counsel for the appellant that the notification is unreasonable in the sense that expression is understood in law. As noticed earlier the electorate is an enlightened body and the elections are to council designed to maintain high standards of the profession. The voters are expected to know the qualifications of every candidate and they are certainly in a position to vote for the best candidate. Canvassing may be necessary for explaining to an illiterate voter the qualifications of a candidate and the principles for which he stands or in the case of vast electorate to which the candidate may not be familiar, but no such necessity exists in the case of enlightened voters of a compact electorate. If the Council thought that malpractices existed and undue and unwholesome pressures were brought to bear on the voters and for that reason, with a view to purify the conduct of elections, if it issued the said notification prohibiting canvassing, we cannot say that the Council acted unreasonably in issuing the said notification. It issued the notification in the best interests of the purity of the elections and ultimately in the interests of the profession itself. We therefore, hold that the Council had not only power to issue the notification prohibiting canvassing of votes but also that the said notification was not inconsistent with either the provisions of the Act or the Regulation made thereunder. 15. Now coming to the cross-appeal, the High Court held that issuing manifestoes or circulars directly came into conflict with the proviso to Cl. (2) of Regulation 54-A which says that a declaration of policy or a promise of a particular action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning, of the said clause. Doubtless the proviso to Regulation 54-A (2) saves issuing of manifestoes and circulars from the operation of the substantive part of the clause. 16. The act of issuing a manifesto or a circular, therefore does not amount to undue influence within the meaning of that clause. If the notification says that such issuing of manifestoes or circulars is undue influence it certainly comes into conflict with that clause. But the notification does not, and indeed it cannot, amend the definition of "undue influence. The said Act, though if does not amount to an undue influence, is constituted a different head of professional misconduct which the Council is authorised to do under Cl. (ii) of Part II of the Second Schedule to the Act. From this perspective no conflict between the two arises. We cannot, therefore, agree with the reasoning of the High Court that the notification in so far as it prohibited issuing of manifestoes, and circulars was illegal. 17. | 0[ds]The gist of the said provisions may be stated thus: For the purpose of the Act the expression "professional misconduct includes the act or omission specified in the Schedule to the Act. The Council also may by notification make regulations in connection with the conduct of elections. Under Regulation 54-A (2) and (4B) a member of the Institute shall be liable to disciplinary action by the Council if he was guilty of the practice, among others, of undue influence and canvassing as defined therein. On February 22, 1964, the Council issued a notification specifying that a member of the Institute shall be decreed to be guilty of misconduct, if, in connection with the election to the Councils of the Institute he is found to have taken part, directly or indirectly, either himself or through an other person, or to have issued manifestoes or circulars or to have canvassed votes by visiting places of business or residence of voters or in any other manner. Part l of the Second Schedule to the Act describes the acts of professional misconduct in relation to chartered accountants in practice requiring action by the High Court and Part II thereof states generally that a member of the Institute, whether in practice or not, shall be deemed to be guilty of professional misconduct, if he contravenes any of the provisions of the Act or the Regulations or is guilty of such other act or omission as may be specified by the Council in this behalf, by notification in the Gazette of IndiaThe argument at first sight appears to be attractive, but it involves a fallacy. The Regulations enumerated different heads for disciplinary action in connection with the conduct of an election; but they did not, either expressly or by necessary implication, prohibit the Council from adding additional heads of disciplinary action. While the Regulations provide for disciplinary action for undue influence and for canvassing for votes, etc., within a distance of 200 meters from a polling booth, the notification placed other acts and omissions under different heads of misconduct. There is no inherent conflict between undue influence and canvassing of votes by visiting the places of business or the residence of the voters. So too, there is no conflict between canvassing of votes within a distance of 200 meters from a polling booth and canvassing of votes by visiting places of business or residence of voters or in any other manner. All the three can stand togetherNor can we agree that apart from the fundamental rights, which the appellant does not claim in this appeal, he has an unlimited right to canvass for votes, either statutory or otherwise. Nothing has been placed before us to sustain any such right. His rights are defined by the statute and we cannot say that such an unlimited right to canvass is implicit in the right to stand for electionNow coming to the cross-appeal, the High Court held that issuing manifestoes or circulars directly came into conflict with the proviso to Cl. (2) of Regulation 54-A which says that a declaration of policy or a promise of a particular action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning, of the said clause. Doubtless the proviso to Regulation 54-A (2) saves issuing of manifestoes and circulars from the operation of the substantive part of the clause.The act of issuing a manifesto or a circular, therefore does not amount to undue influence within the meaning of that clause. If the notification says that such issuing of manifestoes or circulars is undue influence it certainly comes into conflict with that clause. But the notification does not, and indeed it cannot, amend the definition of "undue influence. The said Act, though if does not amount to an undue influence, is constituted a different head of professional misconduct which the Council is authorised to do under Cl. (ii) of Part II of the Second Schedule to the Act. From this perspective no conflict between the two arises. We cannot, therefore, agree with the reasoning of the High Court that the notification in so far as it prohibited issuing of manifestoes, and circulars was illegal. | 0 | 3,181 | 783 | ### 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:
is guilty of such other act or omission as may be specified by the Council in this behalf, by notification in the Gazette of India. 11. Now the question is whether the said notification is invalid for any of the reasons mentioned above. It is said that the power of the Council to issue a notification is limited by the express provisions of Cl. (ii) of Part II of the Second Schedule to the Act. As under Cl. (i) of Part II of the Second Schedule to the Act, the contravention of the provisions of the Act or of the Regulations made thereunder was professional misconduct, the argument proceeded the expression "other art or omission" in Cl. (ii) should be an act or omission other than those provided in the Regulations. Elaborating this argument it was said that under Regulation 54-A (2) the appellant in Civil Appeal No. 447 of 1965 had a legal right to canvass within the meaning of the said proviso, that the notification in effect depriving him of that right was in derogation of the said Regulation and, was. therefore, illegal. It was also argued that the said notification was inconsistent With Cl. (4B) of Regulation 54-A, as under that clause canvassing for votes or soliciting votes of electors was prohibited within a distance of 200 meters from the polling booths, thereby impliedly permitting canvassing beyond that distance, and that, therefore, the notification prohibiting canvassing generally was in direct conflict with the same. The further argument was that Cl. (4B) of Regulation 54-A detracted only to a limited extent from the legal right to canvass and that any prohibition against general canvassing beyond the limits laid down by Cl. (4B) of Regulation 54-A contravened both Cl. (2) and C1. (4B) of Regulation 54-A and was bad. 12. The argument at first sight appears to be attractive, but it involves a fallacy. The Regulations enumerated different heads for disciplinary action in connection with the conduct of an election; but they did not, either expressly or by necessary implication, prohibit the Council from adding additional heads of disciplinary action. While the Regulations provide for disciplinary action for undue influence and for canvassing for votes, etc., within a distance of 200 meters from a polling booth, the notification placed other acts and omissions under different heads of misconduct. There is no inherent conflict between undue influence and canvassing of votes by visiting the places of business or the residence of the voters. So too, there is no conflict between canvassing of votes within a distance of 200 meters from a polling booth and canvassing of votes by visiting places of business or residence of voters or in any other manner. All the three can stand together. 13. Nor can we agree that apart from the fundamental rights, which the appellant does not claim in this appeal, he has an unlimited right to canvass for votes, either statutory or otherwise. Nothing has been placed before us to sustain any such right. His rights are defined by the statute and we cannot say that such an unlimited right to canvass is implicit in the right to stand for election. 14. We cannot also agree with the learned counsel for the appellant that the notification is unreasonable in the sense that expression is understood in law. As noticed earlier the electorate is an enlightened body and the elections are to council designed to maintain high standards of the profession. The voters are expected to know the qualifications of every candidate and they are certainly in a position to vote for the best candidate. Canvassing may be necessary for explaining to an illiterate voter the qualifications of a candidate and the principles for which he stands or in the case of vast electorate to which the candidate may not be familiar, but no such necessity exists in the case of enlightened voters of a compact electorate. If the Council thought that malpractices existed and undue and unwholesome pressures were brought to bear on the voters and for that reason, with a view to purify the conduct of elections, if it issued the said notification prohibiting canvassing, we cannot say that the Council acted unreasonably in issuing the said notification. It issued the notification in the best interests of the purity of the elections and ultimately in the interests of the profession itself. We therefore, hold that the Council had not only power to issue the notification prohibiting canvassing of votes but also that the said notification was not inconsistent with either the provisions of the Act or the Regulation made thereunder. 15. Now coming to the cross-appeal, the High Court held that issuing manifestoes or circulars directly came into conflict with the proviso to Cl. (2) of Regulation 54-A which says that a declaration of policy or a promise of a particular action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning, of the said clause. Doubtless the proviso to Regulation 54-A (2) saves issuing of manifestoes and circulars from the operation of the substantive part of the clause. 16. The act of issuing a manifesto or a circular, therefore does not amount to undue influence within the meaning of that clause. If the notification says that such issuing of manifestoes or circulars is undue influence it certainly comes into conflict with that clause. But the notification does not, and indeed it cannot, amend the definition of "undue influence. The said Act, though if does not amount to an undue influence, is constituted a different head of professional misconduct which the Council is authorised to do under Cl. (ii) of Part II of the Second Schedule to the Act. From this perspective no conflict between the two arises. We cannot, therefore, agree with the reasoning of the High Court that the notification in so far as it prohibited issuing of manifestoes, and circulars was illegal. 17.
### Response:
0
### Explanation:
The gist of the said provisions may be stated thus: For the purpose of the Act the expression "professional misconduct includes the act or omission specified in the Schedule to the Act. The Council also may by notification make regulations in connection with the conduct of elections. Under Regulation 54-A (2) and (4B) a member of the Institute shall be liable to disciplinary action by the Council if he was guilty of the practice, among others, of undue influence and canvassing as defined therein. On February 22, 1964, the Council issued a notification specifying that a member of the Institute shall be decreed to be guilty of misconduct, if, in connection with the election to the Councils of the Institute he is found to have taken part, directly or indirectly, either himself or through an other person, or to have issued manifestoes or circulars or to have canvassed votes by visiting places of business or residence of voters or in any other manner. Part l of the Second Schedule to the Act describes the acts of professional misconduct in relation to chartered accountants in practice requiring action by the High Court and Part II thereof states generally that a member of the Institute, whether in practice or not, shall be deemed to be guilty of professional misconduct, if he contravenes any of the provisions of the Act or the Regulations or is guilty of such other act or omission as may be specified by the Council in this behalf, by notification in the Gazette of IndiaThe argument at first sight appears to be attractive, but it involves a fallacy. The Regulations enumerated different heads for disciplinary action in connection with the conduct of an election; but they did not, either expressly or by necessary implication, prohibit the Council from adding additional heads of disciplinary action. While the Regulations provide for disciplinary action for undue influence and for canvassing for votes, etc., within a distance of 200 meters from a polling booth, the notification placed other acts and omissions under different heads of misconduct. There is no inherent conflict between undue influence and canvassing of votes by visiting the places of business or the residence of the voters. So too, there is no conflict between canvassing of votes within a distance of 200 meters from a polling booth and canvassing of votes by visiting places of business or residence of voters or in any other manner. All the three can stand togetherNor can we agree that apart from the fundamental rights, which the appellant does not claim in this appeal, he has an unlimited right to canvass for votes, either statutory or otherwise. Nothing has been placed before us to sustain any such right. His rights are defined by the statute and we cannot say that such an unlimited right to canvass is implicit in the right to stand for electionNow coming to the cross-appeal, the High Court held that issuing manifestoes or circulars directly came into conflict with the proviso to Cl. (2) of Regulation 54-A which says that a declaration of policy or a promise of a particular action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning, of the said clause. Doubtless the proviso to Regulation 54-A (2) saves issuing of manifestoes and circulars from the operation of the substantive part of the clause.The act of issuing a manifesto or a circular, therefore does not amount to undue influence within the meaning of that clause. If the notification says that such issuing of manifestoes or circulars is undue influence it certainly comes into conflict with that clause. But the notification does not, and indeed it cannot, amend the definition of "undue influence. The said Act, though if does not amount to an undue influence, is constituted a different head of professional misconduct which the Council is authorised to do under Cl. (ii) of Part II of the Second Schedule to the Act. From this perspective no conflict between the two arises. We cannot, therefore, agree with the reasoning of the High Court that the notification in so far as it prohibited issuing of manifestoes, and circulars was illegal.
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Tisco General Office Recreation Club Vs. State of Bihar and Others | The appellant is a dealer under the provisions of the Bihar Sales Tax Act. It runs a canteen and a library for the benefit of the officers and employees of Tata Iron and Steel Company Limited (hereinafter referred to as TISCO). It appears that the appellant had agreed to sell food items to the officers and employees of TISCO in a canteen which was run by it. The prices of the food items so sold were fixed by the Managing Committee from time to time in consultation with the Canteen, Hotel and Restaurant Workers Union, Jamshedpur. It is an admitted fact that the prices so fixed were below the cost price which resulted in a deficit. The difference between the income earned and the expenditure incurred by the dealer used to be made good every month by TISCO. The sales tax authorities treated this subsidy given to the dealer as a part of the sale price and added it to the turnover and levied sales tax. Having been unsuccessful before the sales tax authorities and the High Court, this appeal by special leave has been filed. It appears to us that the stand of the respondents is not warranted by law. Sales tax is chargeable on the sale of goods by a dealer. The charge is on the gross turnover and according to section 2(j) of the Bihar Finance Act, 1981 gross turnover means for the purpose of levy of sales tax in respect of sale of goods the aggregate amount of sale price which is received and receivable by a dealer. Sale price is defined under section 2(u) to mean the amount payable to a dealer as valuable consideration in respect of the sale or supply of goods. From the facts enumerated hereinabove, it is clear that what is sold by the dealer are the items of food and in respect of the said items the sale prices are fixed by reason of agreement between the Managing Committee of the dealer and the workers union. It is no doubt true that the prices which are fixed are less than the cost price but then the valuable consideration in respect of the supply of items of food in the canteen are the prices so fixed.For running the canteen different types of expenses are incurred and at the end of the month when the income and expenditure account is prepared the excess of expenditure over the income is made good by giving subsidy to the dealer. The subsidy so given cannot be said to be directly relatable to any item of food or goods sold. It is not possible to accept that the subsidies can possibly be regarded as valuable consideration in respect of sale or supply of goods. Learned Senior Counsel for the appellant drew our attention to two decisions of the High Court entitled Fertiliser Corporation of India Limited v. Commercial Tax Officer (OFA), Punjagatta, Division, Hyderabad reported in (AP) and Rashtriya Chemicals and Fertilisers Limited v. State of U.P. reported in (All.) wherein it has been held that the subsidies given would not form part of the sale price. Mr. Ashok Mathur, on the other hand, refers to decision of this Court in E.I.D. Parry (I) Ltd. v. Assistant Commissioner of Commercial Taxes. This decision can be of little assistance because it deals with the concept of determining the purchase or levy of purchase tax. The expenses which are incurred which are relatable to the purchase of a taxable item may or may not be regarded as part of the purchase price but as far as the present case is concerned, lump sum payment which, in the very nature of things, is ex gratia cannot be regarded as being part of the sale price and consequently form part of the gross turnover of the dealer. There was no statutory obligation of TISCO to pay any amount to the dealer. It is only as a measure of staff welfare that ex gratia payment was made from time to time which, in our opinion, cannot be regarded as part of the sale price of the meals sold by the canteen to the employees. | 1[ds]It appears to us that the stand of the respondents is not warranted by lawFrom the facts enumerated hereinabove, it is clear that what is sold by the dealer are the items of food and in respect of the said items the sale prices are fixed by reason of agreement between the Managing Committee of the dealer and the workers union. It is no doubt true that the prices which are fixed are less than the cost price but then the valuable consideration in respect of the supply of items of food in the canteen are the prices so fixed.For running the canteen different types of expenses are incurred and at the end of the month when the income and expenditure account is prepared the excess of expenditure over the income is made good by giving subsidy to the dealer. The subsidy so given cannot be said to be directly relatable to any item of food or goods sold. It is not possible to accept that the subsidies can possibly be regarded as valuable consideration in respect of sale or supply of goodsThis decision can be of little assistance because it deals with the concept of determining the purchase or levy of purchase tax. The expenses which are incurred which are relatable to the purchase of a taxable item may or may not be regarded as part of the purchase price but as far as the present case is concerned, lump sum payment which, in the very nature of things, is ex gratia cannot be regarded as being part of the sale price and consequently form part of the gross turnover of the dealer. There was no statutory obligation of TISCO to pay any amount to the dealer. It is only as a measure of staff welfare that ex gratia payment was made from time to time which, in our opinion, cannot be regarded as part of the sale price of the meals sold by the canteen to the employees. | 1 | 752 | 350 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
The appellant is a dealer under the provisions of the Bihar Sales Tax Act. It runs a canteen and a library for the benefit of the officers and employees of Tata Iron and Steel Company Limited (hereinafter referred to as TISCO). It appears that the appellant had agreed to sell food items to the officers and employees of TISCO in a canteen which was run by it. The prices of the food items so sold were fixed by the Managing Committee from time to time in consultation with the Canteen, Hotel and Restaurant Workers Union, Jamshedpur. It is an admitted fact that the prices so fixed were below the cost price which resulted in a deficit. The difference between the income earned and the expenditure incurred by the dealer used to be made good every month by TISCO. The sales tax authorities treated this subsidy given to the dealer as a part of the sale price and added it to the turnover and levied sales tax. Having been unsuccessful before the sales tax authorities and the High Court, this appeal by special leave has been filed. It appears to us that the stand of the respondents is not warranted by law. Sales tax is chargeable on the sale of goods by a dealer. The charge is on the gross turnover and according to section 2(j) of the Bihar Finance Act, 1981 gross turnover means for the purpose of levy of sales tax in respect of sale of goods the aggregate amount of sale price which is received and receivable by a dealer. Sale price is defined under section 2(u) to mean the amount payable to a dealer as valuable consideration in respect of the sale or supply of goods. From the facts enumerated hereinabove, it is clear that what is sold by the dealer are the items of food and in respect of the said items the sale prices are fixed by reason of agreement between the Managing Committee of the dealer and the workers union. It is no doubt true that the prices which are fixed are less than the cost price but then the valuable consideration in respect of the supply of items of food in the canteen are the prices so fixed.For running the canteen different types of expenses are incurred and at the end of the month when the income and expenditure account is prepared the excess of expenditure over the income is made good by giving subsidy to the dealer. The subsidy so given cannot be said to be directly relatable to any item of food or goods sold. It is not possible to accept that the subsidies can possibly be regarded as valuable consideration in respect of sale or supply of goods. Learned Senior Counsel for the appellant drew our attention to two decisions of the High Court entitled Fertiliser Corporation of India Limited v. Commercial Tax Officer (OFA), Punjagatta, Division, Hyderabad reported in (AP) and Rashtriya Chemicals and Fertilisers Limited v. State of U.P. reported in (All.) wherein it has been held that the subsidies given would not form part of the sale price. Mr. Ashok Mathur, on the other hand, refers to decision of this Court in E.I.D. Parry (I) Ltd. v. Assistant Commissioner of Commercial Taxes. This decision can be of little assistance because it deals with the concept of determining the purchase or levy of purchase tax. The expenses which are incurred which are relatable to the purchase of a taxable item may or may not be regarded as part of the purchase price but as far as the present case is concerned, lump sum payment which, in the very nature of things, is ex gratia cannot be regarded as being part of the sale price and consequently form part of the gross turnover of the dealer. There was no statutory obligation of TISCO to pay any amount to the dealer. It is only as a measure of staff welfare that ex gratia payment was made from time to time which, in our opinion, cannot be regarded as part of the sale price of the meals sold by the canteen to the employees.
### Response:
1
### Explanation:
It appears to us that the stand of the respondents is not warranted by lawFrom the facts enumerated hereinabove, it is clear that what is sold by the dealer are the items of food and in respect of the said items the sale prices are fixed by reason of agreement between the Managing Committee of the dealer and the workers union. It is no doubt true that the prices which are fixed are less than the cost price but then the valuable consideration in respect of the supply of items of food in the canteen are the prices so fixed.For running the canteen different types of expenses are incurred and at the end of the month when the income and expenditure account is prepared the excess of expenditure over the income is made good by giving subsidy to the dealer. The subsidy so given cannot be said to be directly relatable to any item of food or goods sold. It is not possible to accept that the subsidies can possibly be regarded as valuable consideration in respect of sale or supply of goodsThis decision can be of little assistance because it deals with the concept of determining the purchase or levy of purchase tax. The expenses which are incurred which are relatable to the purchase of a taxable item may or may not be regarded as part of the purchase price but as far as the present case is concerned, lump sum payment which, in the very nature of things, is ex gratia cannot be regarded as being part of the sale price and consequently form part of the gross turnover of the dealer. There was no statutory obligation of TISCO to pay any amount to the dealer. It is only as a measure of staff welfare that ex gratia payment was made from time to time which, in our opinion, cannot be regarded as part of the sale price of the meals sold by the canteen to the employees.
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H.M.T. Ltd. rep. by its Deputy General Manager and Anr Vs. Mudappa and Ors | Court as to expansion of industrial area or development of industry. It was also not expected of the judgment-debtors to contend before the Executing Court that the land was required for expansion of the industry. The reason weighed with the learned Single Judge, therefore, in our opinion, could not be made basis for quashing the notification. The learned Single Judge also observed that issuance of simultaneous notifications under Section 1(3), Section 3(1) and Section 28(1) was illegal. In this connection, the learned Single Judge noted- "10. It is seen from the impugned notification that they have been issued by the first respondent and not by the second respondent. It is not the case of the first respondent that any representation of the 5th respondent to acquire any land to expand their factory was pending consideration before the decree was made by the Court. On the other hand, it is contended by the second respondent that the land in question has been sought to be acquired for expansion of the fifth respondent factory. It is not the case of the second respondent that they recommended to the Government to acquire this land for the expansion of the fifth respondent as no material was produced for perusal regarding the declaration of industrial area to expand the industry. It is further material to see that the first respondent in exercise of its power under sub-section (3) of the Act issued a composite notification declaring the industrial area and the application of Chapter VII to such area. It is further material to see that such notifications have been issued only in respect of the lands in question and no other lands have been included. The notification issued under Section 3(1) of the Act has been published in page No.253 of the Karnataka Gazette dated December 11, 1997 without mentioning the lands in respect of which such notification was issued. The notification issued under Section 1(3) of the Act has been published in page No.254 of the same Gazette and the lands in respect of which the said notification was issued has been published in page 255. In page No. 256 also the same schedule is published the purpose of which is not known.11. Section 3(1) of the Act requires that the State Government shall declare any area as an industrial area by a notification and a notification under sub-section (3) of Section 1 of the Act is required to be issued to extend the provisions of Chapter VII in respect of the area declared as an industrial area under Sub-section (1) of Section 3 of the Act by the notification. It is, therefore, clear that there shall be two different and independent notifications issued under two different provisions of the Act. The composite notification issued as per Annexure-D under sub-section (1) of Section 3 without mentioning the particulars of the land, and sub-section (3) of Section 1 of the Act is impermissible in law, consequently the notification issued under Section 28(1) of the Act is illegal, void and invalid". 11. The learned Single Judge was conscious of the fact that notification under Section 28(1) was merely a preliminary notification and in the nature of proposal. He, however, negatived preliminary objection raised by the authorities and observed; "12. It was contended by the respondent that the petition is premature and hence liable to be dismissed as the notification issued under Section 28(1) of the Act is only a proposal, which may or may not be perused after considering the objections is filed by the petitioners. In the normal course the objection of the respondents would have been tenable. But, in the facts and circumstances of this case, where respondents 4 and 5 have hell bent upon retaining the land which they have illegally occupied and the first respondent acceded to their request to acquire the same without considering the past history, within a span of one month from the date of disposal of CRP by this Court, their contentions untenable as the procedure under Section 28(2) & (3) of the Act would be an empty formality. The respondents did not produce any material to show that the land in question is covered by the provisions of Official Secrets Act. Mere prohibition of entry to the general public is not sufficient to hold that the land in question is declared as a prohibited area under the provisions of Official Secrets Act. The conduct of the respondents particularly of respondents 4 and 5 for whose benefit the land is sought to be acquired, clearly demonstrates their mala fide intention to defeat the decree of a court of competent jurisdiction". 12. According to the learned Judge, therefore, giving of opportunity of being heard was merely an empty formality and since it was mala fide exercise of power by the State to deprive the owners of the fruits of the decree obtained by them, they were entitled to relief of quashing of notification at that stage without further delay. 13. In our judgment, the learned Single Judge was wholly in error in taking such view and quashing the notification. Upholding of such view would make statutory provisions under the Act or similar provisions in other laws, (for example, the Land Acquisition Act, 1894) nugatory and otiose. We are also of the view that the learned Single Judge was not right in finding fault with the State Authorities in issuing notifications under Section 1(3), Section 3(1) and Section 28(1) simultaneously. There is no bar in issuing such notifications as has been done and no provision has been shown to us by the learned counsel for the contesting respondents which prevented the State from doing so. Even that ground, therefore, cannot help the land-owners. 14. The order passed by the learned Single Judge could not have been upheld by the Division Bench. Unfortunately however, the Division Bench confirmed the order of the Single Judge without considering all aspects of the matter. The said order also, therefore, deserves to be set aside. | 1[ds]7. In our considered view, however, this approach is neither legal nor permissible. Passing of a decree by a competent court is one thing and exercise of statutory power by the authority is altogether a different thing. It is possible in a given case to come to a conclusion on the basis of evidence produced and materials placed on record to conclude that the action has been taken mala fide or for a collateral purpose or in colourable exercise of power. But, in our opinion, issuance of preliminary notification after a decree by a court of law would not ipso facto make it vulnerable and exercise of power mala fide. To us, therefore, the authorities were right in raising a preliminary objection that the petition was premature as by issuance of notification under(1) of Section 28 of theAct, an intention was declared by the State to acquire the land for public purpose i.e. for developing industry. To appreciate the contention of the appellants, we may reproduce the section which readsreading of the above provision makes it abundantly clear that if in the opinion of the State Government any land is required for purpose of development by the Board, a notification of its intention to acquire the land can be issued for acquisition of such land. The notification was accordingly issued on November 13, 1997.(2) of Section 28 then requires the State Government to serve notice upon the owner or occupier of the land and all such persons known or believed to be interested therein to show cause why the land should not be acquired.(3) casts an obligation on the State Government to consider the objections of the owner, occupier or other person interested in land and to pass such order as it deems fit after affording an opportunity of being heard. If it is satisfied that any land should be acquired, a declaration can be made under(4) which shall be notified in Official Gazette.8. The scheme of Section 28 is thus similar to the scheme of acquisition of land under the Land Acquisition Act, 1894 under which such preliminary notification is issued, opportunity of being heard is afforded to the persons interested in the land and only thereafter final notification can be issued. At the stage of raising objections against acquisition, it is open to the respondents herein to raise all contentions. In spite of such objections, if final notification is issued by the State, it is open to them to take appropriate proceedings or to invoke jurisdiction of the High Court under Article 226 of the Constitution.9. Unfortunately, however, the High Court entertained the petition and quashed the preliminary notification overrulingobjection as to maintainability of petition raised by the State and the appellants herein. The High Court was also not right in coming to the conclusion thatsince a decree was passed by a competenton under the Actcould have been issued by theThe power exercised by the State was statutory in nature and irrespective of a decree in favour of the owners, such notification could be issued. A situation similar to one before us had arisen in State of Andhra Pradesh & Ors. v. Govardhanlal Pitti, (2003) 4 SCC 739. In Govardhanlal, a school building belonging to G was in the possession of the State as a tenant. An order of eviction was passed and the State was directed to hand over possession of property to G within a particular period. The State then took out proceedings under the Land Acquisition Act, 1894 for acquiring the property for public purpose, namely, for a school. G challenged the proceedings as mala fide. The High Court upheld the contention observing that there was malice in law inasmuch as the proceedings were initiated to scuttle a valid decree passed by a competent court. The State approached this Court. Allowing the appeal and setting aside the order of the High Court, this Court held that the school was there since 1954 and was catering to the educational needs of children residing in the heart of the city. It could not, therefore, be contended that there was no genuine public purpose. Exercise of power under the Act in the facts and circumstances, therefore, could not be held malawas observed that where malice was attributed to the State, it could not be a case of malice in fact, or personalor spite on the part of the State. It could only be malice in law, i.e. legal mala fide. The State, if it wishes to acquire land, could exercise its power bona fide for statutory purpose and for none other. It was observed that it was only because of the decree passed in favour of the owner that the proceedings for acquisition were necessary and hence, notification was issued. Such an action could not be held mala fide. In the instant case also, the record reveals that in 1978 itself, the possession of the entire land of Survey No. 113/3 had been taken over by the appellants albeit part of it illegally (to the extent of 39 gunthas). It was only because of the decree passed in favour of the owners of the land that the appellants realized that an appropriate action in consonance with law was to acquire the land and hence, a request was made to the State to take anunder the Act anda notification was issued. Such act cannot be said to be illegal, particularly when the notification was preliminary in nature and opportunity under the Act was to be afforded to the owners of being heard. The High Court, in our considered opinion, was wrong and had committed an error of law in entertaining the petition and in allowing it at the stage of issuance of notification under(1) of Sectionis on record that notifications under(3) of Section 1 and) of Section3 were issued by the State. The learned Single Judge, however, observed that it is only after the Executing Court directed theto deliver possession of the property that the latter persuaded the State to issue such notifications. He also found fault with the State Authorities in not producing material for the perusal of the Court for the alleged expansion of the industry. The learned Judge noted that it was not the case of thein execution proceedings that the land was needed for development of industry and, therefore, a decision was taken to acquire the land. According to the learned Single Judge, the land was situated in one corner of the area and was lying vacant. In our opinion, the approach of the learned Single Judge could not be said to be legal or in consonance with law. The State authorities were not required to produce material for perusal of the Court as to expansion of industrial area or development of industry. It was also not expected of theto contend before the Executing Court that the land was required for expansion of the industry. The reason weighed with the learned Single Judge, therefore, in our opinion, could not be made basis for quashing the notification.The order passed by the learned Single Judge could not have been upheld by the Division Bench. Unfortunately however, the Division Bench confirmed the order of the Single Judge without considering all aspects of the matter. The said order also, therefore, deserves to be set aside.15. For the foregoing reasons, the appeals deserve to be allowed and are, accordingly, allowed. The order passed by the learned Single Judge and confirmed by the Division Bench is set aside. The authorities are at liberty to take appropriate proceedings in accordance with law on the basis of notification under) of Section28 of theAct. It goes without saying that all proceedings will have to be undertaken in accordance with Section28 of theAct and it is open to the owners to raise all contentions that under the notification of 1978, the acquisition was to the extent of 1 acre, 38 gunthas of land but the appellants took over possession of additional 39 gunthas of land; that in spite of request and prayer, possession of 39 gunthas of land was never restored to them; that they were required to file suit for possession; that a decree was passed in their favour which was confirmed by the appellate court which had become final; that even thereafter, execution proceedings were taken out wherein direction was issued to the appellants to hand over possession of the land to them, and at that stage, the notification under Section 28(1) was issued. As and when such objections will be taken, an appropriate order would be passed by the authorities in accordance with law. All contentions of the parties are kept open. | 1 | 5,210 | 1,594 | ### Instruction:
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Court as to expansion of industrial area or development of industry. It was also not expected of the judgment-debtors to contend before the Executing Court that the land was required for expansion of the industry. The reason weighed with the learned Single Judge, therefore, in our opinion, could not be made basis for quashing the notification. The learned Single Judge also observed that issuance of simultaneous notifications under Section 1(3), Section 3(1) and Section 28(1) was illegal. In this connection, the learned Single Judge noted- "10. It is seen from the impugned notification that they have been issued by the first respondent and not by the second respondent. It is not the case of the first respondent that any representation of the 5th respondent to acquire any land to expand their factory was pending consideration before the decree was made by the Court. On the other hand, it is contended by the second respondent that the land in question has been sought to be acquired for expansion of the fifth respondent factory. It is not the case of the second respondent that they recommended to the Government to acquire this land for the expansion of the fifth respondent as no material was produced for perusal regarding the declaration of industrial area to expand the industry. It is further material to see that the first respondent in exercise of its power under sub-section (3) of the Act issued a composite notification declaring the industrial area and the application of Chapter VII to such area. It is further material to see that such notifications have been issued only in respect of the lands in question and no other lands have been included. The notification issued under Section 3(1) of the Act has been published in page No.253 of the Karnataka Gazette dated December 11, 1997 without mentioning the lands in respect of which such notification was issued. The notification issued under Section 1(3) of the Act has been published in page No.254 of the same Gazette and the lands in respect of which the said notification was issued has been published in page 255. In page No. 256 also the same schedule is published the purpose of which is not known.11. Section 3(1) of the Act requires that the State Government shall declare any area as an industrial area by a notification and a notification under sub-section (3) of Section 1 of the Act is required to be issued to extend the provisions of Chapter VII in respect of the area declared as an industrial area under Sub-section (1) of Section 3 of the Act by the notification. It is, therefore, clear that there shall be two different and independent notifications issued under two different provisions of the Act. The composite notification issued as per Annexure-D under sub-section (1) of Section 3 without mentioning the particulars of the land, and sub-section (3) of Section 1 of the Act is impermissible in law, consequently the notification issued under Section 28(1) of the Act is illegal, void and invalid". 11. The learned Single Judge was conscious of the fact that notification under Section 28(1) was merely a preliminary notification and in the nature of proposal. He, however, negatived preliminary objection raised by the authorities and observed; "12. It was contended by the respondent that the petition is premature and hence liable to be dismissed as the notification issued under Section 28(1) of the Act is only a proposal, which may or may not be perused after considering the objections is filed by the petitioners. In the normal course the objection of the respondents would have been tenable. But, in the facts and circumstances of this case, where respondents 4 and 5 have hell bent upon retaining the land which they have illegally occupied and the first respondent acceded to their request to acquire the same without considering the past history, within a span of one month from the date of disposal of CRP by this Court, their contentions untenable as the procedure under Section 28(2) & (3) of the Act would be an empty formality. The respondents did not produce any material to show that the land in question is covered by the provisions of Official Secrets Act. Mere prohibition of entry to the general public is not sufficient to hold that the land in question is declared as a prohibited area under the provisions of Official Secrets Act. The conduct of the respondents particularly of respondents 4 and 5 for whose benefit the land is sought to be acquired, clearly demonstrates their mala fide intention to defeat the decree of a court of competent jurisdiction". 12. According to the learned Judge, therefore, giving of opportunity of being heard was merely an empty formality and since it was mala fide exercise of power by the State to deprive the owners of the fruits of the decree obtained by them, they were entitled to relief of quashing of notification at that stage without further delay. 13. In our judgment, the learned Single Judge was wholly in error in taking such view and quashing the notification. Upholding of such view would make statutory provisions under the Act or similar provisions in other laws, (for example, the Land Acquisition Act, 1894) nugatory and otiose. We are also of the view that the learned Single Judge was not right in finding fault with the State Authorities in issuing notifications under Section 1(3), Section 3(1) and Section 28(1) simultaneously. There is no bar in issuing such notifications as has been done and no provision has been shown to us by the learned counsel for the contesting respondents which prevented the State from doing so. Even that ground, therefore, cannot help the land-owners. 14. The order passed by the learned Single Judge could not have been upheld by the Division Bench. Unfortunately however, the Division Bench confirmed the order of the Single Judge without considering all aspects of the matter. The said order also, therefore, deserves to be set aside.
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notification overrulingobjection as to maintainability of petition raised by the State and the appellants herein. The High Court was also not right in coming to the conclusion thatsince a decree was passed by a competenton under the Actcould have been issued by theThe power exercised by the State was statutory in nature and irrespective of a decree in favour of the owners, such notification could be issued. A situation similar to one before us had arisen in State of Andhra Pradesh & Ors. v. Govardhanlal Pitti, (2003) 4 SCC 739. In Govardhanlal, a school building belonging to G was in the possession of the State as a tenant. An order of eviction was passed and the State was directed to hand over possession of property to G within a particular period. The State then took out proceedings under the Land Acquisition Act, 1894 for acquiring the property for public purpose, namely, for a school. G challenged the proceedings as mala fide. The High Court upheld the contention observing that there was malice in law inasmuch as the proceedings were initiated to scuttle a valid decree passed by a competent court. The State approached this Court. Allowing the appeal and setting aside the order of the High Court, this Court held that the school was there since 1954 and was catering to the educational needs of children residing in the heart of the city. It could not, therefore, be contended that there was no genuine public purpose. Exercise of power under the Act in the facts and circumstances, therefore, could not be held malawas observed that where malice was attributed to the State, it could not be a case of malice in fact, or personalor spite on the part of the State. It could only be malice in law, i.e. legal mala fide. The State, if it wishes to acquire land, could exercise its power bona fide for statutory purpose and for none other. It was observed that it was only because of the decree passed in favour of the owner that the proceedings for acquisition were necessary and hence, notification was issued. Such an action could not be held mala fide. In the instant case also, the record reveals that in 1978 itself, the possession of the entire land of Survey No. 113/3 had been taken over by the appellants albeit part of it illegally (to the extent of 39 gunthas). It was only because of the decree passed in favour of the owners of the land that the appellants realized that an appropriate action in consonance with law was to acquire the land and hence, a request was made to the State to take anunder the Act anda notification was issued. Such act cannot be said to be illegal, particularly when the notification was preliminary in nature and opportunity under the Act was to be afforded to the owners of being heard. The High Court, in our considered opinion, was wrong and had committed an error of law in entertaining the petition and in allowing it at the stage of issuance of notification under(1) of Sectionis on record that notifications under(3) of Section 1 and) of Section3 were issued by the State. The learned Single Judge, however, observed that it is only after the Executing Court directed theto deliver possession of the property that the latter persuaded the State to issue such notifications. He also found fault with the State Authorities in not producing material for the perusal of the Court for the alleged expansion of the industry. The learned Judge noted that it was not the case of thein execution proceedings that the land was needed for development of industry and, therefore, a decision was taken to acquire the land. According to the learned Single Judge, the land was situated in one corner of the area and was lying vacant. In our opinion, the approach of the learned Single Judge could not be said to be legal or in consonance with law. The State authorities were not required to produce material for perusal of the Court as to expansion of industrial area or development of industry. It was also not expected of theto contend before the Executing Court that the land was required for expansion of the industry. The reason weighed with the learned Single Judge, therefore, in our opinion, could not be made basis for quashing the notification.The order passed by the learned Single Judge could not have been upheld by the Division Bench. Unfortunately however, the Division Bench confirmed the order of the Single Judge without considering all aspects of the matter. The said order also, therefore, deserves to be set aside.15. For the foregoing reasons, the appeals deserve to be allowed and are, accordingly, allowed. The order passed by the learned Single Judge and confirmed by the Division Bench is set aside. The authorities are at liberty to take appropriate proceedings in accordance with law on the basis of notification under) of Section28 of theAct. It goes without saying that all proceedings will have to be undertaken in accordance with Section28 of theAct and it is open to the owners to raise all contentions that under the notification of 1978, the acquisition was to the extent of 1 acre, 38 gunthas of land but the appellants took over possession of additional 39 gunthas of land; that in spite of request and prayer, possession of 39 gunthas of land was never restored to them; that they were required to file suit for possession; that a decree was passed in their favour which was confirmed by the appellate court which had become final; that even thereafter, execution proceedings were taken out wherein direction was issued to the appellants to hand over possession of the land to them, and at that stage, the notification under Section 28(1) was issued. As and when such objections will be taken, an appropriate order would be passed by the authorities in accordance with law. All contentions of the parties are kept open.
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The Commissioner Of Income-Tax, Bombay Vs. The Scindia Steam Navigatlon Co. Ltd | the income-tax authorities was whether the sum of Rs. 9,26,532 was assessable to tax as income received during the year of account 1945-46. That having been decided against the respondents, the Tribunal referred on their application under S. 66(1), the question, whether the sum of Rs. 9,26,532 was properly included in the assessee companys total income for the assessment year 1946-47, and that was the very question which was argued and decided by the High Court. Thus it cannot be said that the respondents had raised any new question before the court. But the appellant contends that while before the income-tax authorities the respondent disputed their liability on the ground that the amount in question had been received in the year previous to the year of account, the contention urged by them before the court was that even on the footing that the income had been received in the year of account, the proviso to S. 10(2) (vii) had no application, and that it was a new question which they were not entitled to raise. We do not agree with this contention. Section 66(1) speaks of a question of law that arises out of the order of the Tribunal. Now a question of law might be a simple one, having its impact at one point, or it may be a complex one, trenching over an area with approaches leading to different points therein. Such a question might involve more than one aspect, requiring to be tackled from different standpoints. All that S. 66(1) requires it that the question of law which is referred to the court for decision and which the court is to decide must be the question which was in issue before the Tribunal. Where the question itself was under issue, there is no further limitation imposed by the section that the reference should be limited to those aspects of the question which had been argued before the Tribunal. It will be an over-refinement of the position to hold that each aspect of a question is itself a distinct question for the purpose of S. 66(1) of the Act. That was the view taken by this Court in1955-1 SCR 185 : (AIR 1954 SC 429 ), and in 1960-40 ITR 552 : (AIR 1961 SC 107 ), and we agree with it. As the question on which the parties were at issue, which was referred to the court under S. 66(1), and decided by it under S. 66(5) is whether the sum of Rs. 926,532 is liable to be included in the taxable income of the respondents, the ground on which the respondents contested their liability before the High Court was one which was within the scope of the question, and the High Court rightly entertained it.33. It is argued for the appellant that this view would have the effect of doing away with limitations which the legislature has advisedly imposed on the right of al litigant to require references under S. 66(1), as the question might be framed in such general manner as to admit of new questions not argued being raised. It is no doubt true that sometimes the questions are framed in such general terms, that, construed literally, they might take in questions which were never in issue. In such cases, the true scope of the reference will have to be ascertained and limited by what appears on the statement of the case. In this connection, it is necessary to emphasize that, in framing questions, the Tribunal should be precise and indicate the grounds on which the questions of law are raised. Where, however, the question is sufficiently specific, we are unable to see any ground for holding that only those contentions can be argued in support of it which had been raised before the Tribunal. In our opinion, it is competent to the court in such a case to allow a new contention to be advanced, provided it is within the framework of the question as referred.34. In the present case, the question actually referred was whether the assessment in respect of Rs. 9,26,532 was proper. Though the point argued before the Income-tax authorities was that the income was received not in the year of account but in the previous year, the question as framed is sufficient to cover the question which was actually argued before the court namely that in fact the assessment is not proper by reason of the proviso being inapplicable. The new contention does not involve reframing of the issues. On the very terms of the question as referred which are specific, the question is permissible and was open to the respondents. Indeed the very order of reference shows that the Tribunal was conscious that this point also might bear on the controversy so that it cannot be said to be foreign to the scope of the question as framed. In the result, we are of opinion that the question of the applicability of the proviso is really implicit, as was held by Chagla, C. J., in the question which was referred, and therefore it was one which the court had to answer.35. On the merits, the appellant had very little to say. He sought to contend that the proviso thought it came into force on May 5, 1946, was really intended to operate from April 1, 1946, and he referred us to certain other enactments as supporting that inference. But we are construing the proviso. In terms, it is not retrospective, and we cannot import into its construction matters which are ad extra legis, and thereby alter its true effect. Then it was argued that the amount of Rs.9,26,532 having been allowed as deduction in the previous years, may now be treated as profits received during the year of assessment, and thereby subjected to tax. But this is a point entirely new and not covered by the question, and on the view taken by us as to the scope of a reference under S. 66(1), it must be disallowed. | 0[ds]24. It will be seen from the foregoing review of the decisions that all the High Courts are agreed that S. 66 creates a special jurisdiction, that the power of the Tribunal to make a reference and the right of the litigant to require it, must be sought within the four corners of S. 66(1), that the jurisdiction of the High Court to hear references is limited to question which are properly referred to it under S. 66(1), and that such jurisdiction is purely advisory and extends only to deciding questions referred to it. The narrow ground over which the High Courts differ is as regards the question whether it is competent to the Tribunal to refer, or the High Court to decide, a question of law which was not either raised before the Tribunal or decided by it, where it arises on the facts found by it. On this question, two divergent views have been expressed. One is that the words, "any question of law arising out of" the order of the Tribunal signify that the question must have been raised before the Tribunal and considered by it, and the other is that all questions of law arising out of the facts found would be questions of law arising out of the order of the Tribunal. The latter is the view taken by the Bombay High Court in (1948) 16 ITR 227 : (AIR 1949 Bom 24 ) and approved by the Nagpur High Court in 1952-22 ITR 448 : (AIR 1953 Nag 173). The former is the view held by all the other High Courts. Now the argument in support of the latter view is that on the plain grammatical construction of S. 66(1), any question of law that could be raised on the findings of fact given by the Tribunal, would be questions that arise out of the order, and that, to hold that they meant that the question must have been raised before the Tribunal and decided by it, would be to read into the section words which are notare unable to agree with this contention. Under the British statute when once a decision is given by the Commissioners, it is sufficient that the assessee should express his dissatisfaction with it and ask that the matter be referred to the decision of the High Court. It is then for the Commissioners to draw up a statement of the case and refer it for the decision of the court. The British statute does not cast, as does S. 66(1) of the Act, a duty on the assessee to put in an application stating the questions of law which he desires the Commissioners to refer to the court and requiring them to refer the questions which arise out of that order. In 1953 SCR 463 : (AIR 1953 SC 118 ) this Court has decided that the requirement of S. 63(1) are maters affecting the jurisdiction to make a reference under that section. The attempt of the respondents to equate the position under S. 66(1) of the Act with that under the British statute on the ground that the Tribunal has to draw up a statement of the case and refer it, and that the court is to decide questions of law raised by it, must break down when the real purpose of a statement in a reference is kept in view. A statement of case is in the nature of a pleading wherein all the facts found are set out. There is nothing in it which calls for a decision by the court. It is the question of law referred under S. 66(1) that calls for decision under S. 66(5) and it is that that constitutes the pivotal point on which the jurisdiction of the court hinges. The statement of the case is material only as furnishing the facts for the purpose of enabling the court to decide the question referred. It has been repeatedly laid down by the Privy Council that the Indian Act is not in pari materia with the British statute and that it will not be safe to construe it in the light of English decisions, vide Commissioner of Income-tax Bengal v. Shaw Wallace and Co. 59 Ind App 206 : (AIR 1932 PC 138 ). In view of the difference between S. 66(1) and the corresponding provision in the British statute, we consider that no useful purpose will be served by referring to the English decisions for interpreting S. 66.26. But the main contention still remains that the language of S. 66(1) is wide enough to admit of questions of law which arise on the facts found by the Tribunal and that there is no justification for cutting down its amplitude by importing in effect words into it which are not there. There is considerable force in this argument. But then there are certain features, which distinguish the jurisdiction under S. 66, and they have to be taken into consideration in ascertaining the true import of the words, "any question of law arising out of such order." The jurisdiction of a court in a reference under S. 66 is a special one, different from its ordinary jurisdiction as a civil court. The High Court, hearing a reference under the section, does not exercise any appellate or revisional or supervisory jurisdiction over the Tribunal. It acts purely in an advisory capacity, on a reference which properly comes before it under S. 66(1) and (2). It gives the Tribunals advice, but ultimately it is for them to give effect to that advice. It is of the essence of such a jurisdiction that the court can decide only questions which are referred to it and not any other question. That has been decided by this Court in 1960-1 SCR 249 : 1959-37 ITR 11 : (AIR 1959 SC 1177 ); 1960-3 SCR 417 : (1960) 39 ITR 540 : (AIR 1960 SC 907 ) and 1960-40 ITR 552 : (AIR 1961 SC 107 ). If the true scope of the jurisdiction of the High Court is to give advice when it is sought by the Tribunal, it stands to reason that the Tribunal should have had an occasion to consider the question so that it may decide whether it should refer it for the decision of thesee no force in this contention. Section 66(2) confers on the court a power to direct a reference only where the Tribunal was under a duty to refer under S. 66(1), and it is, therefore, subject to the same limitations as S. 66(1). That has been held by this Court in 1960-1 SCR 249 : 1959-37 ITR 11 : (AIR 1959 SC 1177 ), and in 1960-40 ITR 552 : (AIR 1961 SC 107 ). Moreover, the power of the court to issue direction to Tribunal under S. 66(2) is, as has often been pointed out, in the nature of a mandamus and it is well settled that no mandamus will be issued unless the applicant had made a distinct demand on the appropriate authorities for the very relief which he seeks to enforce by mandamus and that had been refused. Thus, the power of the court to direct a reference under S. 66(2) is subject to two limitations-the question must be one which the Tribunal was bound to refer under S. 66(1) and the applicant must have required the Tribunal to refer it. R(T) is the form prescribed under Rule 22A for an application under S. 66(1), and that shows that the applicant must set out the questions which he desires the Tribunal to refer and that further, those questions must arise out of the order of the Tribunal. It is therefore, clear that under S. 66(2), the court cannot direct the Tribunal to refer a question unless it is one which arises out of the order of the Tribunal and was specified by the applicant in his application under S. 66(1). Now, if we are to hold that the court can allow a new question to be raised on the reference, that would in effect give the applicant a right which is denied to him under S. 66(1) and (2), and enlarge the jurisdiction of the court so as to assimilate it to that of an ordinary civil court of appeal.28. It is again to be noted that, whereas S. 66(1), as it stood prior to the amendment of 1939, conferred on the Commissioner a power to refer a question of law to the court suo motu, that power has been taken away under the present section and it has accordingly been held that under S. 66(1), as it now stands, there is no power in the Tribunal to refer a question of law suo motu for the decision of the court. If, as contended for by the respondents, the court is to be held to have power to entertain in a reference, any question of law, which arises on the facts found by the Tribunal, its jurisdiction under S. 66(5) must be held to be wider than under S. 66(1) and (2). The correct view to take, in our opinion, is that the right of the litigant to asked for a reference, the power of the Tribunal to make one, and the jurisdiction of the court to decide it are all co-extensive and, therefore, a question of law which the applicant cannot require the Tribunal to refer and which the Tribunal is not competent to refer to the court, cannot be entertained by the court under S. 66(5). In view of the above considerations, we are unable to construe the words, "any question of law arising out of such order," as meaning any question of law arising out of the findings in the order of the Tribunal.29. One of the reason given by Chagla, C. J., in, (1948) 16 ITR 227 : (AIR 1949 Bom 24 ), for differing from the decision in1947-15 ITR 442: (AIR 1948 Mad 181), that it is only a question which was raised before the Tribunal that could be said to arise out of its order was that that view must result in great injustice in a case in which the applicant had raised a question before the Tribunal but it had failed to deal with it owing to mistake or inadvertence. In such a case, it was said, the applicant would be deprived, for no fault of his, of a valuable right which the legislature had intended to give him. But we see no difficulty in holding that in those cases the Tribunal must be deemed to have decided the question against the appellant, as Falshaw, J. was disposed to do in (1956) 30 ITR 388 (Punj) (FB). This is only an application of the principle well known to law that a relief asked for and not granted should be deemed to have been refused. It is on this footing that Kania, J. held in 1947-15 ITR 319 : (AIR 1948 Bom 72 (2) (FB)), that, in the circumstances stated above, the court could call upon the Tribunal to state a supplemental case after giving its own decision on the contention. That was also the procedure adopted in (1952) 22 ITR 448: (AIR 1953 Nag 173). Such cases must be exceptional and cannot be founded on for putting a construction different from what the language of S. 66(1) would otherwise warrant.30. There was also some argument as to the position under S. 66(1) when the Tribunal decides an appeal on a question of law not raised before it. That would undoubtedly be a question arising out of the order, and not the less so because it was not argued before it, and this conclusion does not militate against the construction which we have put on the language of S. 66(1).31. The result of the above discussion may thus be summed up :1. When a question is raised before the Tribunal and is dealt with by it, it is clearly one arising out of its order.2. When a question of law is raised before the Tribunal but the Tribunal fails to deal with it, it must be deemed to have been dealt with by it, and is therefore one arising out of its order.3. When a question is not raised before the Tribunal but the Tribunal deals with it, that will also be a question arising out of its order.4. When a question of law is neither raised before the Tribunal nor considered by it, it will not be a question arising out of its order notwithstanding that it may arise on the findings given by it.Stating the position compendiously, it is only a question that has been raised before or decided by the Tribunal that could be held to arise out of itsthe only question on which the parties were at issue before the income-tax authorities was whether the sum of Rs. 9,26,532 was assessable to tax as income received during the year of account 1945-46. That having been decided against the respondents, the Tribunal referred on their application under S. 66(1), the question, whether the sum of Rs. 9,26,532 was properly included in the assessee companys total income for the assessment year 1946-47, and that was the very question which was argued and decided by the High Court. Thus it cannot be said that the respondents had raised any new question before the court. But the appellant contends that while before the income-tax authorities the respondent disputed their liability on the ground that the amount in question had been received in the year previous to the year of account, the contention urged by them before the court was that even on the footing that the income had been received in the year of account, the proviso to S. 10(2) (vii) had no application, and that it was a new question which they were not entitled to raise. We do not agree with this contention. Section 66(1) speaks of a question of law that arises out of the order of the Tribunal. Now a question of law might be a simple one, having its impact at one point, or it may be a complex one, trenching over an area with approaches leading to different points therein. Such a question might involve more than one aspect, requiring to be tackled from different standpoints. All that S. 66(1) requires it that the question of law which is referred to the court for decision and which the court is to decide must be the question which was in issue before the Tribunal. Where the question itself was under issue, there is no further limitation imposed by the section that the reference should be limited to those aspects of the question which had been argued before the Tribunal. It will be an over-refinement of the position to hold that each aspect of a question is itself a distinct question for the purpose of S. 66(1) of the Act. That was the view taken by this Court in1955-1 SCR 185 : (AIR 1954 SC 429 ), and in 1960-40 ITR 552 : (AIR 1961 SC 107 ), and we agree with it. As the question on which the parties were at issue, which was referred to the court under S. 66(1), and decided by it under S. 66(5) is whether the sum of Rs. 926,532 is liable to be included in the taxable income of the respondents, the ground on which the respondents contested their liability before the High Court was one which was within the scope of the question, and the High Court rightly entertainedis no doubt true that sometimes the questions are framed in such general terms, that, construed literally, they might take in questions which were never in issue. In such cases, the true scope of the reference will have to be ascertained and limited by what appears on the statement of the case. In this connection, it is necessary to emphasize that, in framing questions, the Tribunal should be precise and indicate the grounds on which the questions of law are raised. Where, however, the question is sufficiently specific, we are unable to see any ground for holding that only those contentions can be argued in support of it which had been raised before the Tribunal. In our opinion, it is competent to the court in such a case to allow a new contention to be advanced, provided it is within the framework of the question asthe point argued before the Income-tax authorities was that the income was received not in the year of account but in the previous year, the question as framed is sufficient to cover the question which was actually argued before the court namely that in fact the assessment is not proper by reason of the proviso being inapplicable. The new contention does not involve reframing of the issues. On the very terms of the question as referred which are specific, the question is permissible and was open to the respondents. Indeed the very order of reference shows that the Tribunal was conscious that this point also might bear on the controversy so that it cannot be said to be foreign to the scope of the question as framed. In the result, we are of opinion that the question of the applicability of the proviso is really implicit, as was held by Chagla, C. J., in the question which was referred, and therefore it was one which the court had to answer.35. On the merits, the appellant had very little to say. He sought to contend that the proviso thought it came into force on May 5, 1946, was really intended to operate from April 1, 1946, and he referred us to certain other enactments as supporting that inference. But we are construing the proviso. In terms, it is not retrospective, and we cannot import into its construction matters which are ad extra legis, and thereby alter its true effect. Then it was argued that the amount of Rs.9,26,532 having been allowed as deduction in the previous years, may now be treated as profits received during the year of assessment, and thereby subjected to tax. But this is a point entirely new and not covered by the question, and on the view taken by us as to the scope of a reference under S. 66(1), it must be disallowed. | 0 | 10,937 | 3,464 | ### Instruction:
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the income-tax authorities was whether the sum of Rs. 9,26,532 was assessable to tax as income received during the year of account 1945-46. That having been decided against the respondents, the Tribunal referred on their application under S. 66(1), the question, whether the sum of Rs. 9,26,532 was properly included in the assessee companys total income for the assessment year 1946-47, and that was the very question which was argued and decided by the High Court. Thus it cannot be said that the respondents had raised any new question before the court. But the appellant contends that while before the income-tax authorities the respondent disputed their liability on the ground that the amount in question had been received in the year previous to the year of account, the contention urged by them before the court was that even on the footing that the income had been received in the year of account, the proviso to S. 10(2) (vii) had no application, and that it was a new question which they were not entitled to raise. We do not agree with this contention. Section 66(1) speaks of a question of law that arises out of the order of the Tribunal. Now a question of law might be a simple one, having its impact at one point, or it may be a complex one, trenching over an area with approaches leading to different points therein. Such a question might involve more than one aspect, requiring to be tackled from different standpoints. All that S. 66(1) requires it that the question of law which is referred to the court for decision and which the court is to decide must be the question which was in issue before the Tribunal. Where the question itself was under issue, there is no further limitation imposed by the section that the reference should be limited to those aspects of the question which had been argued before the Tribunal. It will be an over-refinement of the position to hold that each aspect of a question is itself a distinct question for the purpose of S. 66(1) of the Act. That was the view taken by this Court in1955-1 SCR 185 : (AIR 1954 SC 429 ), and in 1960-40 ITR 552 : (AIR 1961 SC 107 ), and we agree with it. As the question on which the parties were at issue, which was referred to the court under S. 66(1), and decided by it under S. 66(5) is whether the sum of Rs. 926,532 is liable to be included in the taxable income of the respondents, the ground on which the respondents contested their liability before the High Court was one which was within the scope of the question, and the High Court rightly entertained it.33. It is argued for the appellant that this view would have the effect of doing away with limitations which the legislature has advisedly imposed on the right of al litigant to require references under S. 66(1), as the question might be framed in such general manner as to admit of new questions not argued being raised. It is no doubt true that sometimes the questions are framed in such general terms, that, construed literally, they might take in questions which were never in issue. In such cases, the true scope of the reference will have to be ascertained and limited by what appears on the statement of the case. In this connection, it is necessary to emphasize that, in framing questions, the Tribunal should be precise and indicate the grounds on which the questions of law are raised. Where, however, the question is sufficiently specific, we are unable to see any ground for holding that only those contentions can be argued in support of it which had been raised before the Tribunal. In our opinion, it is competent to the court in such a case to allow a new contention to be advanced, provided it is within the framework of the question as referred.34. In the present case, the question actually referred was whether the assessment in respect of Rs. 9,26,532 was proper. Though the point argued before the Income-tax authorities was that the income was received not in the year of account but in the previous year, the question as framed is sufficient to cover the question which was actually argued before the court namely that in fact the assessment is not proper by reason of the proviso being inapplicable. The new contention does not involve reframing of the issues. On the very terms of the question as referred which are specific, the question is permissible and was open to the respondents. Indeed the very order of reference shows that the Tribunal was conscious that this point also might bear on the controversy so that it cannot be said to be foreign to the scope of the question as framed. In the result, we are of opinion that the question of the applicability of the proviso is really implicit, as was held by Chagla, C. J., in the question which was referred, and therefore it was one which the court had to answer.35. On the merits, the appellant had very little to say. He sought to contend that the proviso thought it came into force on May 5, 1946, was really intended to operate from April 1, 1946, and he referred us to certain other enactments as supporting that inference. But we are construing the proviso. In terms, it is not retrospective, and we cannot import into its construction matters which are ad extra legis, and thereby alter its true effect. Then it was argued that the amount of Rs.9,26,532 having been allowed as deduction in the previous years, may now be treated as profits received during the year of assessment, and thereby subjected to tax. But this is a point entirely new and not covered by the question, and on the view taken by us as to the scope of a reference under S. 66(1), it must be disallowed.
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of its order.4. When a question of law is neither raised before the Tribunal nor considered by it, it will not be a question arising out of its order notwithstanding that it may arise on the findings given by it.Stating the position compendiously, it is only a question that has been raised before or decided by the Tribunal that could be held to arise out of itsthe only question on which the parties were at issue before the income-tax authorities was whether the sum of Rs. 9,26,532 was assessable to tax as income received during the year of account 1945-46. That having been decided against the respondents, the Tribunal referred on their application under S. 66(1), the question, whether the sum of Rs. 9,26,532 was properly included in the assessee companys total income for the assessment year 1946-47, and that was the very question which was argued and decided by the High Court. Thus it cannot be said that the respondents had raised any new question before the court. But the appellant contends that while before the income-tax authorities the respondent disputed their liability on the ground that the amount in question had been received in the year previous to the year of account, the contention urged by them before the court was that even on the footing that the income had been received in the year of account, the proviso to S. 10(2) (vii) had no application, and that it was a new question which they were not entitled to raise. We do not agree with this contention. Section 66(1) speaks of a question of law that arises out of the order of the Tribunal. Now a question of law might be a simple one, having its impact at one point, or it may be a complex one, trenching over an area with approaches leading to different points therein. Such a question might involve more than one aspect, requiring to be tackled from different standpoints. All that S. 66(1) requires it that the question of law which is referred to the court for decision and which the court is to decide must be the question which was in issue before the Tribunal. Where the question itself was under issue, there is no further limitation imposed by the section that the reference should be limited to those aspects of the question which had been argued before the Tribunal. It will be an over-refinement of the position to hold that each aspect of a question is itself a distinct question for the purpose of S. 66(1) of the Act. That was the view taken by this Court in1955-1 SCR 185 : (AIR 1954 SC 429 ), and in 1960-40 ITR 552 : (AIR 1961 SC 107 ), and we agree with it. As the question on which the parties were at issue, which was referred to the court under S. 66(1), and decided by it under S. 66(5) is whether the sum of Rs. 926,532 is liable to be included in the taxable income of the respondents, the ground on which the respondents contested their liability before the High Court was one which was within the scope of the question, and the High Court rightly entertainedis no doubt true that sometimes the questions are framed in such general terms, that, construed literally, they might take in questions which were never in issue. In such cases, the true scope of the reference will have to be ascertained and limited by what appears on the statement of the case. In this connection, it is necessary to emphasize that, in framing questions, the Tribunal should be precise and indicate the grounds on which the questions of law are raised. Where, however, the question is sufficiently specific, we are unable to see any ground for holding that only those contentions can be argued in support of it which had been raised before the Tribunal. In our opinion, it is competent to the court in such a case to allow a new contention to be advanced, provided it is within the framework of the question asthe point argued before the Income-tax authorities was that the income was received not in the year of account but in the previous year, the question as framed is sufficient to cover the question which was actually argued before the court namely that in fact the assessment is not proper by reason of the proviso being inapplicable. The new contention does not involve reframing of the issues. On the very terms of the question as referred which are specific, the question is permissible and was open to the respondents. Indeed the very order of reference shows that the Tribunal was conscious that this point also might bear on the controversy so that it cannot be said to be foreign to the scope of the question as framed. In the result, we are of opinion that the question of the applicability of the proviso is really implicit, as was held by Chagla, C. J., in the question which was referred, and therefore it was one which the court had to answer.35. On the merits, the appellant had very little to say. He sought to contend that the proviso thought it came into force on May 5, 1946, was really intended to operate from April 1, 1946, and he referred us to certain other enactments as supporting that inference. But we are construing the proviso. In terms, it is not retrospective, and we cannot import into its construction matters which are ad extra legis, and thereby alter its true effect. Then it was argued that the amount of Rs.9,26,532 having been allowed as deduction in the previous years, may now be treated as profits received during the year of assessment, and thereby subjected to tax. But this is a point entirely new and not covered by the question, and on the view taken by us as to the scope of a reference under S. 66(1), it must be disallowed.
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Raman Nadar Viswanathan Nadar & Ors Vs. Snehappoo Rasalamma Alias Ammukutty & 4Others | In our opinion, there is no justification in this argument..Assuming without deciding that a family provision is an exception to the rule of pure Hindu Law stated above a provision in a will whereby the testator directs that his properties after his death shall be taken by his nephews or in their absence by his nieces cannot be characterised as a family provision. The object of such a disposition is obviously not to a make a family provision but to chart a course for future devolution of the testators properties.14. The argument was stressed on behalf of the appellants that the will Ex. P-2 was a joint will executed by Krishnan Nadar and Raman Nadar and it was designed to take effect only after the death of both the testators. As the sons of the 1st defendant must necessarily be born before that event the principle in Tagores case, (1872) Ind App Supp 47 (PC) (supra) was not attracted. Reference was made to the following passage from Jarman on Wills, 8th Edition."Two or more persons may make a joint will, which, if properly executed by each, is so far as his own property is concerned, as much his will, and is as well entitled to probate upon his death, as if he had made a separate will. But a joint will made by 2 persons, to take effect after the death of both, will not be admitted to probate during the life of either. Joint wills are revocable at any time by either of the testators during their joint lives, or, after the death of one of them, by the survivor."15. In our opinion there is no warrant for this argument. This will Ex. P. 2 contains separate provisions regarding the devolution of the properties of each of the testators. In regard to the properties of Krishnan Nadar it devises as life estate to the 1st defendant and the remainder to his sons or in their absence to his daughters. In regard to the properties of Raman Nadar the devise is to his sons and in their absence to his daughters.It is, therefore, not possible to accept the argument that the will was intended to operate or to come into effect after the death of both the testators. In regard to Krishnan Nadars properties the life estate devised in favour of the 1st defendant must necessarily take effect and remain in force during the life of the 1st defendant and not after that.It is true that at the end of the will there is a clause that both the testators have the right to revoke the will during the lives and that the Will take effect only subsequent to their death. But the true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory. It must, therefore, be held that as the express devise to the 1st defendant for his life is a disposition intended to take effect after the death of Krishnan Nadar and before the death of the 1st defendant, the last clause in the will cannot be literally correct.16. It was then contended on behalf of the appellants that in any event the High Court was in error in holding that the title of the plaint properties vested in the daughters of the 1st defendant under the terms of the will, Ex. P-2. It appears that during the pendency of the appeal defendant No. 1 Raman Nadar died on May 20, 1969 and the question, therefore, arises whether the daughters are entitled to a life interest in the plaint properties after the death of defendant No. 1. It is manifest from the will that the bequest to the daughters is subject to the prior condition that the defendant No. 1 leaves behind no sons at the date of his death. The relevant portion of Ex. P-2 states:"After the life of the second named, if he leaves behind no sons, the three daughters named above and the daughters, if any, born hereafter may enjoy all the movable and immovable properties that may be found to belong to the first named and the second named either in common or in equal shares...."The bequest to the daughters was, therefore, defeasible on the sons being born to defendant No. 1. Hence, upon the death of defendant No. 1 on May 13, 1969 there was no valid bequest to the daughters. In other words, there was an intestacy and the provisions of the Hindu Succession Act, 1956 (Act No. 30 of 1956),would be applicable.The sons of defendant No. 1 cannot taken under the will because they were unborn on the date of the death of the testator Krishnan Nadar. The daughters also cannot take under the will as the bequest in their favour was subject to the defeasance clause. It is evident that the appellants would be entitled to their lawful share of the properties of Krishnan Nadar under the provisions of the Hindu Succession Act, 1956 and they are entitled to a declaration to that effect and other consequential reliefs. But it is not possible for us to finally dispose of this appeal because there was an issue in the trial Court as to whether the appellants were the legitimate sons of defendant No. 1. The case of the defendants 3 to 5 was that there was no legal marriage between the 1st defendant and the mother of the plaintiffs,. But the assertion of the plaintiffs was that their mother married the 1st defendant after getting herself converted into Hinduism and such marriage was legally valid and the plaintiffs are the legitimate children of the 1st defendant. The trial Court decided the issue in favour of the plaintiffs but the High Court has not gone into the question nor recorded a finding as to whether the plaintiffs are the legitimate sons of defendant No. 1. | 1[ds]8. The sentence neither expresses nor implies that the "sentient being" must be in existence or be present at the time and place of the relinquishment. On the contrary, the whole argument contained in paragraphs 21 to 24 to Chap. I of Dayabhaga shows that a gift is completed by the donors act alone, the acceptance of the donee being not necessary. Indeed, in the very next passage, Dayabhaga speaks of gifts to God as showing that the validity of the gifts does not depend upon acceptance.9. Mr. Sarjoo Prasad suggested that the matter required reconsideration. But it is manifest that the decision of the Judicial Committee in Tagores case, (1872) Ind app Supp 47 (PC) (supra)has stood a great length of time and on the basis of that decision rights have been regulated, arrangements as to property have been made and titles to property have passed. We are hence of the opinion that this a proper case in which the maxim communis error facit jus may be applied.It is, however, not disputed in the present case that on the relevant date none of the three Acts was operative and the doctrine of pure Hindu Law was applicable to the Travancore State:It follows that the principle laid down in Tagores case, (1872) Ind app Supp 47 (PC) (supra), applied and the bequests in favour of the sons of the 1st defendant are void and of no legalour opinion, there is no justification in this argument..Assuming without deciding that a family provision is an exception to the rule of pure Hindu Law stated above a provision in a will whereby the testator directs that his properties after his death shall be taken by his nephews or in their absence by his nieces cannot be characterised as a family provision. The object of such a disposition is obviously not to a make a family provision but to chart a course for future devolution of the testators properties.In our opinion there is no warrant for this argument. This will Ex. P. 2 contains separate provisions regarding the devolution of the properties of each of the testators. In regard to the properties of Krishnan Nadar it devises as life estate to the 1st defendant and the remainder to his sons or in their absence to his daughters. In regard to the properties of Raman Nadar the devise is to his sons and in their absence to his daughters.It is, therefore, not possible to accept the argument that the will was intended to operate or to come into effect after the death of both the testators. In regard to Krishnan Nadars properties the life estate devised in favour of the 1st defendant must necessarily take effect and remain in force during the life of the 1st defendant and not after that.It is true that at the end of the will there is a clause that both the testators have the right to revoke the will during the lives and that the Will take effect only subsequent to their death. But the true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory. It must, therefore, be held that as the express devise to the 1st defendant for his life is a disposition intended to take effect after the death of Krishnan Nadar and before the death of the 1st defendant, the last clause in the will cannot be literallyappears that during the pendency of the appeal defendant No. 1 Raman Nadar died on May 20, 1969 and the question, therefore, arises whether the daughters are entitled to a life interest in the plaint properties after the death of defendant No. 1. It is manifest from the will that the bequest to the daughters is subject to the prior condition that the defendant No. 1 leaves behind no sons at the date of hisbequest to the daughters was, therefore, defeasible on the sons being born to defendant No. 1. Hence, upon the death of defendant No. 1 on May 13, 1969 there was no valid bequest to the daughters. In other words, there was an intestacy and the provisions ofthe Hindu Succession Act, 1956 (Act No. 30 of 1956),would be applicable.The sons of defendant No. 1 cannot taken under the will because they were unborn on the date of the death of the testator Krishnan Nadar. The daughters also cannot take under the will as the bequest in their favour was subject to the defeasance clause. It is evident that the appellants would be entitled to their lawful share of the properties of Krishnan Nadar under the provisions ofthe Hindu Succession Act, 1956 and they are entitled to a declaration to that effect and other consequential reliefs. But it is not possible for us to finally dispose of this appeal because there was an issue in the trial Court as to whether the appellants were the legitimate sons of defendant No. 1. The case of the defendants 3 to 5 was that there was no legal marriage between the 1st defendant and the mother of the plaintiffs,. But the assertion of the plaintiffs was that their mother married the 1st defendant after getting herself converted into Hinduism and such marriage was legally valid and the plaintiffs are the legitimate children of the 1st defendant. The trial Court decided the issue in favour of the plaintiffs but the High Court has not gone into the question nor recorded a finding as to whether the plaintiffs are the legitimate sons of defendant No. 1. | 1 | 4,060 | 1,034 | ### Instruction:
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In our opinion, there is no justification in this argument..Assuming without deciding that a family provision is an exception to the rule of pure Hindu Law stated above a provision in a will whereby the testator directs that his properties after his death shall be taken by his nephews or in their absence by his nieces cannot be characterised as a family provision. The object of such a disposition is obviously not to a make a family provision but to chart a course for future devolution of the testators properties.14. The argument was stressed on behalf of the appellants that the will Ex. P-2 was a joint will executed by Krishnan Nadar and Raman Nadar and it was designed to take effect only after the death of both the testators. As the sons of the 1st defendant must necessarily be born before that event the principle in Tagores case, (1872) Ind App Supp 47 (PC) (supra) was not attracted. Reference was made to the following passage from Jarman on Wills, 8th Edition."Two or more persons may make a joint will, which, if properly executed by each, is so far as his own property is concerned, as much his will, and is as well entitled to probate upon his death, as if he had made a separate will. But a joint will made by 2 persons, to take effect after the death of both, will not be admitted to probate during the life of either. Joint wills are revocable at any time by either of the testators during their joint lives, or, after the death of one of them, by the survivor."15. In our opinion there is no warrant for this argument. This will Ex. P. 2 contains separate provisions regarding the devolution of the properties of each of the testators. In regard to the properties of Krishnan Nadar it devises as life estate to the 1st defendant and the remainder to his sons or in their absence to his daughters. In regard to the properties of Raman Nadar the devise is to his sons and in their absence to his daughters.It is, therefore, not possible to accept the argument that the will was intended to operate or to come into effect after the death of both the testators. In regard to Krishnan Nadars properties the life estate devised in favour of the 1st defendant must necessarily take effect and remain in force during the life of the 1st defendant and not after that.It is true that at the end of the will there is a clause that both the testators have the right to revoke the will during the lives and that the Will take effect only subsequent to their death. But the true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory. It must, therefore, be held that as the express devise to the 1st defendant for his life is a disposition intended to take effect after the death of Krishnan Nadar and before the death of the 1st defendant, the last clause in the will cannot be literally correct.16. It was then contended on behalf of the appellants that in any event the High Court was in error in holding that the title of the plaint properties vested in the daughters of the 1st defendant under the terms of the will, Ex. P-2. It appears that during the pendency of the appeal defendant No. 1 Raman Nadar died on May 20, 1969 and the question, therefore, arises whether the daughters are entitled to a life interest in the plaint properties after the death of defendant No. 1. It is manifest from the will that the bequest to the daughters is subject to the prior condition that the defendant No. 1 leaves behind no sons at the date of his death. The relevant portion of Ex. P-2 states:"After the life of the second named, if he leaves behind no sons, the three daughters named above and the daughters, if any, born hereafter may enjoy all the movable and immovable properties that may be found to belong to the first named and the second named either in common or in equal shares...."The bequest to the daughters was, therefore, defeasible on the sons being born to defendant No. 1. Hence, upon the death of defendant No. 1 on May 13, 1969 there was no valid bequest to the daughters. In other words, there was an intestacy and the provisions of the Hindu Succession Act, 1956 (Act No. 30 of 1956),would be applicable.The sons of defendant No. 1 cannot taken under the will because they were unborn on the date of the death of the testator Krishnan Nadar. The daughters also cannot take under the will as the bequest in their favour was subject to the defeasance clause. It is evident that the appellants would be entitled to their lawful share of the properties of Krishnan Nadar under the provisions of the Hindu Succession Act, 1956 and they are entitled to a declaration to that effect and other consequential reliefs. But it is not possible for us to finally dispose of this appeal because there was an issue in the trial Court as to whether the appellants were the legitimate sons of defendant No. 1. The case of the defendants 3 to 5 was that there was no legal marriage between the 1st defendant and the mother of the plaintiffs,. But the assertion of the plaintiffs was that their mother married the 1st defendant after getting herself converted into Hinduism and such marriage was legally valid and the plaintiffs are the legitimate children of the 1st defendant. The trial Court decided the issue in favour of the plaintiffs but the High Court has not gone into the question nor recorded a finding as to whether the plaintiffs are the legitimate sons of defendant No. 1.
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8. The sentence neither expresses nor implies that the "sentient being" must be in existence or be present at the time and place of the relinquishment. On the contrary, the whole argument contained in paragraphs 21 to 24 to Chap. I of Dayabhaga shows that a gift is completed by the donors act alone, the acceptance of the donee being not necessary. Indeed, in the very next passage, Dayabhaga speaks of gifts to God as showing that the validity of the gifts does not depend upon acceptance.9. Mr. Sarjoo Prasad suggested that the matter required reconsideration. But it is manifest that the decision of the Judicial Committee in Tagores case, (1872) Ind app Supp 47 (PC) (supra)has stood a great length of time and on the basis of that decision rights have been regulated, arrangements as to property have been made and titles to property have passed. We are hence of the opinion that this a proper case in which the maxim communis error facit jus may be applied.It is, however, not disputed in the present case that on the relevant date none of the three Acts was operative and the doctrine of pure Hindu Law was applicable to the Travancore State:It follows that the principle laid down in Tagores case, (1872) Ind app Supp 47 (PC) (supra), applied and the bequests in favour of the sons of the 1st defendant are void and of no legalour opinion, there is no justification in this argument..Assuming without deciding that a family provision is an exception to the rule of pure Hindu Law stated above a provision in a will whereby the testator directs that his properties after his death shall be taken by his nephews or in their absence by his nieces cannot be characterised as a family provision. The object of such a disposition is obviously not to a make a family provision but to chart a course for future devolution of the testators properties.In our opinion there is no warrant for this argument. This will Ex. P. 2 contains separate provisions regarding the devolution of the properties of each of the testators. In regard to the properties of Krishnan Nadar it devises as life estate to the 1st defendant and the remainder to his sons or in their absence to his daughters. In regard to the properties of Raman Nadar the devise is to his sons and in their absence to his daughters.It is, therefore, not possible to accept the argument that the will was intended to operate or to come into effect after the death of both the testators. In regard to Krishnan Nadars properties the life estate devised in favour of the 1st defendant must necessarily take effect and remain in force during the life of the 1st defendant and not after that.It is true that at the end of the will there is a clause that both the testators have the right to revoke the will during the lives and that the Will take effect only subsequent to their death. But the true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory. It must, therefore, be held that as the express devise to the 1st defendant for his life is a disposition intended to take effect after the death of Krishnan Nadar and before the death of the 1st defendant, the last clause in the will cannot be literallyappears that during the pendency of the appeal defendant No. 1 Raman Nadar died on May 20, 1969 and the question, therefore, arises whether the daughters are entitled to a life interest in the plaint properties after the death of defendant No. 1. It is manifest from the will that the bequest to the daughters is subject to the prior condition that the defendant No. 1 leaves behind no sons at the date of hisbequest to the daughters was, therefore, defeasible on the sons being born to defendant No. 1. Hence, upon the death of defendant No. 1 on May 13, 1969 there was no valid bequest to the daughters. In other words, there was an intestacy and the provisions ofthe Hindu Succession Act, 1956 (Act No. 30 of 1956),would be applicable.The sons of defendant No. 1 cannot taken under the will because they were unborn on the date of the death of the testator Krishnan Nadar. The daughters also cannot take under the will as the bequest in their favour was subject to the defeasance clause. It is evident that the appellants would be entitled to their lawful share of the properties of Krishnan Nadar under the provisions ofthe Hindu Succession Act, 1956 and they are entitled to a declaration to that effect and other consequential reliefs. But it is not possible for us to finally dispose of this appeal because there was an issue in the trial Court as to whether the appellants were the legitimate sons of defendant No. 1. The case of the defendants 3 to 5 was that there was no legal marriage between the 1st defendant and the mother of the plaintiffs,. But the assertion of the plaintiffs was that their mother married the 1st defendant after getting herself converted into Hinduism and such marriage was legally valid and the plaintiffs are the legitimate children of the 1st defendant. The trial Court decided the issue in favour of the plaintiffs but the High Court has not gone into the question nor recorded a finding as to whether the plaintiffs are the legitimate sons of defendant No. 1.
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NATIONAL INSURANCE COMPANY LTD Vs. BIRENDER | Rule 5(2) stipulates that the family pension as per the normal rules would be payable to the family members only after the period of delivery of financial assistance is completed. The validity of this provision is not put in issue. Suffice it to say that the view taken by the High Court in Ajmero (supra) is a departure from the scheme envisaged by the 2006 Rules, in particular, Rule 5(2). That cannot be countenanced. 18. As a matter of fact, in the present case, the High Court committed manifest error in assuming that the respondent Nos. 1 and 2 would be eligible to receive financial assistance under the 2006 Rules. The eligibility to receive such financial assistance has been spelt out in Rule 3 of the 2006 Rules read with the provision of Pension/Family Pension Scheme, 1964. It appears that major sons and married daughters are not included in the definition. However, we need not dilate on that aspect in the present proceedings any further. It has come in the evidence of Gobind Singh, Clerk in SDM Office (PW-1) that the legal representatives of the deceased have not submitted any request for getting financial assistance till he had deposed. Indeed, respondent No. 1, who had entered the witness box, did depose that they had applied for getting salary of their deceased mother. The fact remains that there is no clear evidence on record that respondent Nos. 1 and 2 are held to be eligible to get financial assistance or in fact, they are getting such financial assistance under the 2006 Rules. The High Court, therefore, instead of providing for deduction of the amount receivable by the legal representatives of the deceased on this count (under the 2006 Rules), from the compensation amount, should have independently determined the compensation amount and ordered payment thereof subject to legal representatives of the deceased filing affidavit/declaration before the executing Court that they have not received nor would they claim any amount towards financial assistance under the 2006 Rules, so as to become entitled to withdraw the entire compensation amount. 19. Reverting to the determination of compensation amount, it is noticed that the Tribunal proceeded to determine the compensation amount on the basis of net-salary drawn by the deceased for the relevant period as Rs.16,918/- per month, while taking note of the fact that her gross-salary was Rs.23,123/- per month (presumably below taxable income). Concededly, any deduction from the gross- salary other than tax amount cannot be reckoned. In that, the actual salary less tax amount ought to have been taken into consideration by the Tribunal for determining the compensation amount, in light of the dictum of the Constitution Bench of this Court in paragraph 59.3 of Pranay Sethi (supra). 20. Similarly, the High Court despite having taken note of the submission made by the respondent Nos. 1 and 2 that the deduction for personal expenses of the deceased should be reckoned only as one-third (1/3 rd ) amount for determining loss of dependency, maintained the deduction of 50% towards that head as ordered by the Tribunal. This Court in Pranay Sethi (supra), in paragraph 37, adverted to the dictum of this Court in Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121 ( para 30) with approval, wherein it is held that if the dependant family members are 2 to 3, as in this case, the deduction towards personal and living expenses of the deceased should be taken as one-third (1/3 rd ). In other words, the deduction towards personal expenses to the extent of 50% is excessive and not just and proper considering the fact that the respondent Nos. 1 and 2 alongwith their respective families were staying with the deceased at the relevant time and were largely dependant on her income. 21. Be that as it may, the Tribunal, for excluding the amount received by the deceased as family pension due to demise of her husband, had noted in paragraph 26, as under: - 26. Learned counsel for the claimants further requested that about to family pension being drawn by the deceased also be calculated for the purpose of assessing the compensation. This contention and assertion of learned counsel for the claimants does not carry any conviction with the Tribunal because the deceased was getting family pension in her own right as the widow of the deceased and cannot be termed as her income for the purpose of computing the amount of compensation. The High Court, without reversing the said finding, proceeded to include the amount of Rs.7,000/- per month received by the deceased as pension amount after demise of her husband. We are in agreement with the view taken by the Tribunal and for the same reason, have to reverse the conclusion recorded by the High Court to include the said amount as loss of dependency. That could not have been taken into account, as the same was payable only to the deceased being widow and not her income as such for the purpose of computing the amount of compensation. 22. Considering the above, respondent Nos. 1 and 2 would be entitled for compensation to be reckoned on the basis of loss of dependency, due to loss of gross salary (less tax amount, if any) of the deceased and future prospects and deduction of only one-third (1/3 rd ) amount towards personal expenses of the deceased. As regards the multiplier 13 applied by the Tribunal and the High Court, the same needs no interference. As a result, on the facts and in the circumstances of this case, the amount payable towards compensation will have to be recalculated on the following basis: - Loss of dependency due to loss of income calculated at Rs.31,26,229.60/- [(Rs.23,123/- x 12 x 13) + (30% future prospects) – (1/3 rd deduction for personal expenses)]. In addition, the claimants would be entitled for a sum of Rs.70,000/- towards conventional heads in terms of dictum in paragraph 59.8 of Pranay Sethi (supra). | 1[ds]14. The legal representatives of the deceased could move application for compensation by virtue of clause (c) of Section 166(1). The major married son who is also earning and not fully dependant on the deceased, would be still covered by the expression legal representative of the deceased. This Court in Manjuri Bera (supra) had expounded that liability to pay compensation under the Act does not cease because of absence of dependency of the concerned legal representativeIn paragraph 15 of the said decision, while adverting to the provisions of Section 140 of the Act, the Court observed that even if there is no loss of dependency, the claimant, if he was a legal representative, will be entitled to compensation. In the concurring judgment of Justice S.H. Kapadia, as His Lordship then was, it is observed that there is distinction between right to apply for compensation and entitlement to compensation. The compensation constitutes part of the estate of the deceased. As a result, the legal representative of the deceased would inherit the estate. Indeed, in that case, the Court was dealing with the case of a married daughter of the deceased and the efficacy of Section 140 of the Act. Nevertheless, the principle underlying the exposition in this decision would clearly come to the aid of the respondent Nos. 1 and 2 (claimants) even though they are major sons of the deceased and also earning15. It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the concerned legal representative was fully dependant on the deceased and not to limit the claim towards conventional heads only. The evidence on record in the present case would suggest that the claimants were working as agricultural labourers on contract basis and were earning meagre income between Rs.1,00,000/- and Rs.1,50,000/- per annum. In that sense, they were largely dependant on the earning of their mother and in fact, were staying with her, who met with an accident at the young age of 48 years14. The legal representatives of the deceased could move application for compensation by virtue of clause (c) of Section 166(1). The major married son who is also earning and not fully dependant on the deceased, would be still covered by the expression legal representative of the deceased. This Court in Manjuri Bera (supra) had expounded that liability to pay compensation under the Act does not cease because of absence of dependency of the concerned legal. Notably, the expression legal representative has not been defined in the ActThe learned Judge of the High Court has, however, after adverting to the decision of the same High Court in Ajmero (supra), went on to observe that 50% of the amount receivable by the legal representatives of the deceased towards financial assistance under the 2006 Rules is required to be deducted from the compensation amount. In the relied upon decision, the same learned Judge had occasion to observe as follows: -… However, perusal of the judgment would reveal that the Court has not adverted to the issue that had the Rules of 2006 extending assistance to family of a deceased employee been not in existence, family would have been entitled to pension to the extent of 50% of the last drawn pay. As per the settled position in law, the pensionary benefits available to family of a deceased employee are not amenable for deduction for computing loss of dependency. There is nothing on record suggestive of the fact that in addition to compassionate assistance under the Rules, family of the deceased is being paid pension till the age of superannuation. Rather Rule 5(2) of the 2006 Rules specifically denies family pension as per normal rules17. The view so taken by the High Court is not the correct reading of the decision of three-Judge Bench of this Court in Shashi Sharma (supra) for more than one reason. First, this Court was conscious of the fact that under Rule 5(2) of the 2006 Rules, the family pension receivable by the family would be payable, however, only after the period, during which the financial assistance is received, is completed. In that context, in paragraph 24 of the reported decision, the Court clearly noted that the amount towards family pension cannot be deducted from the claim amount for determination of a just compensation under the Act. Further, the High Court has erroneously assumed that the family of the deceased would be entitled for family pension amount immediately after the death of the deceased employee. That is in the teeth of the scheme of the 2006 Rules, in particular Rule 5(2) thereof. The said Rules provide for financial assistance on compassionate grounds, as also, other benefits to the family members of the deceased employee and as a package thereof, Rule 5(2) stipulates that the family pension as per the normal rules would be payable to the family members only after the period of delivery of financial assistance is completed. The validity of this provision is not put in issue. Suffice it to say that the view taken by the High Court in Ajmero (supra) is a departure from the scheme envisaged by the 2006 Rules, in particular, Rule 5(2). That cannot be countenanced18. As a matter of fact, in the present case, the High Court committed manifest error in assuming that the respondent Nos. 1 and 2 would be eligible to receive financial assistance under the 2006 Rules. The eligibility to receive such financial assistance has been spelt out in Rule 3 of the 2006 Rules read with the provision of Pension/Family Pension Scheme, 1964. It appears that major sons and married daughters are not included in the definition. However, we need not dilate on that aspect in the present proceedings any further. It has come in the evidence of Gobind Singh, Clerk in SDM Office (PW-1) that the legal representatives of the deceased have not submitted any request for getting financial assistance till he had deposed. Indeed, respondent No. 1, who had entered the witness box, did depose that they had applied for getting salary of their deceased mother. The fact remains that there is no clear evidence on record that respondent Nos. 1 and 2 are held to be eligible to get financial assistance or in fact, they are getting such financial assistance under the 2006 Rules. The High Court, therefore, instead of providing for deduction of the amount receivable by the legal representatives of the deceased on this count (under the 2006 Rules), from the compensation amount, should have independently determined the compensation amount and ordered payment thereof subject to legal representatives of the deceased filing affidavit/declaration before the executing Court that they have not received nor would they claim any amount towards financial assistance under the 2006 Rules, so as to become entitled to withdraw the entire compensation amount19. Reverting to the determination of compensation amount, it is noticed that the Tribunal proceeded to determine the compensation amount on the basis of net-salary drawn by the deceased for the relevant period as Rs.16,918/- per month, while taking note of the fact that her gross-salary was Rs.23,123/- per month (presumably below taxable income). Concededly, any deduction from the gross- salary other than tax amount cannot be reckoned. In that, the actual salary less tax amount ought to have been taken into consideration by the Tribunal for determining the compensation amount, in light of the dictum of the Constitution Bench of this Court in paragraph 59.3 of Pranay Sethi (supra)20. Similarly, the High Court despite having taken note of the submission made by the respondent Nos. 1 and 2 that the deduction for personal expenses of the deceased should be reckoned only as one-third (1/3 rd ) amount for determining loss of dependency, maintained the deduction of 50% towards that head as ordered by the Tribunal. This Court in Pranay Sethi (supra), in paragraph 37, adverted to the dictum of this Court in Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121 ( para 30) with approval, wherein it is held that if the dependant family members are 2 to 3, as in this case, the deduction towards personal and living expenses of the deceased should be taken as one-third (1/3 rd ). In other words, the deduction towards personal expenses to the extent of 50% is excessive and not just and proper considering the fact that the respondent Nos. 1 and 2 alongwith their respective families were staying with the deceased at the relevant time and were largely dependant on her income21. Be that as it may, the Tribunal, for excluding the amount received by the deceased as family pension due to demise of her husband, had noted in paragraph 26, as under: -26. Learned counsel for the claimants further requested that about to family pension being drawn by the deceased also be calculated for the purpose of assessing the compensation. This contention and assertion of learned counsel for the claimants does not carry any conviction with the Tribunal because the deceased was getting family pension in her own right as the widow of the deceased and cannot be termed as her income for the purpose of computing the amount of compensationThe High Court, without reversing the said finding, proceeded to include the amount of Rs.7,000/- per month received by the deceased as pension amount after demise of her husband. We are in agreement with the view taken by the Tribunal and for the same reason, have to reverse the conclusion recorded by the High Court to include the said amount as loss of dependency. That could not have been taken into account, as the same was payable only to the deceased being widow and not her income as such for the purpose of computing the amount of compensation22. Considering the above, respondent Nos. 1 and 2 would be entitled for compensation to be reckoned on the basis of loss of dependency, due to loss of gross salary (less tax amount, if any) of the deceased and future prospects and deduction of only one-third (1/3 rd ) amount towards personal expenses of the deceased. As regards the multiplier 13 applied by the Tribunal and the High Court, the same needs no interference.As a result, on the facts and in the circumstances of this case, the amount payable towards compensation will have to be recalculated on the following basis: -Loss of dependency due to loss of income calculated at Rs.31,26,229.60/- [(Rs.23,123/- x 12 x 13) + (30% future prospects) – (1/3 rd deduction for personal expenses)]. In addition, the claimants would be entitled for a sum of Rs.70,000/- towards conventional heads in terms of dictum in paragraph 59.8 of Pranay Sethi (supra). | 1 | 5,659 | 2,064 | ### 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:
Rule 5(2) stipulates that the family pension as per the normal rules would be payable to the family members only after the period of delivery of financial assistance is completed. The validity of this provision is not put in issue. Suffice it to say that the view taken by the High Court in Ajmero (supra) is a departure from the scheme envisaged by the 2006 Rules, in particular, Rule 5(2). That cannot be countenanced. 18. As a matter of fact, in the present case, the High Court committed manifest error in assuming that the respondent Nos. 1 and 2 would be eligible to receive financial assistance under the 2006 Rules. The eligibility to receive such financial assistance has been spelt out in Rule 3 of the 2006 Rules read with the provision of Pension/Family Pension Scheme, 1964. It appears that major sons and married daughters are not included in the definition. However, we need not dilate on that aspect in the present proceedings any further. It has come in the evidence of Gobind Singh, Clerk in SDM Office (PW-1) that the legal representatives of the deceased have not submitted any request for getting financial assistance till he had deposed. Indeed, respondent No. 1, who had entered the witness box, did depose that they had applied for getting salary of their deceased mother. The fact remains that there is no clear evidence on record that respondent Nos. 1 and 2 are held to be eligible to get financial assistance or in fact, they are getting such financial assistance under the 2006 Rules. The High Court, therefore, instead of providing for deduction of the amount receivable by the legal representatives of the deceased on this count (under the 2006 Rules), from the compensation amount, should have independently determined the compensation amount and ordered payment thereof subject to legal representatives of the deceased filing affidavit/declaration before the executing Court that they have not received nor would they claim any amount towards financial assistance under the 2006 Rules, so as to become entitled to withdraw the entire compensation amount. 19. Reverting to the determination of compensation amount, it is noticed that the Tribunal proceeded to determine the compensation amount on the basis of net-salary drawn by the deceased for the relevant period as Rs.16,918/- per month, while taking note of the fact that her gross-salary was Rs.23,123/- per month (presumably below taxable income). Concededly, any deduction from the gross- salary other than tax amount cannot be reckoned. In that, the actual salary less tax amount ought to have been taken into consideration by the Tribunal for determining the compensation amount, in light of the dictum of the Constitution Bench of this Court in paragraph 59.3 of Pranay Sethi (supra). 20. Similarly, the High Court despite having taken note of the submission made by the respondent Nos. 1 and 2 that the deduction for personal expenses of the deceased should be reckoned only as one-third (1/3 rd ) amount for determining loss of dependency, maintained the deduction of 50% towards that head as ordered by the Tribunal. This Court in Pranay Sethi (supra), in paragraph 37, adverted to the dictum of this Court in Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121 ( para 30) with approval, wherein it is held that if the dependant family members are 2 to 3, as in this case, the deduction towards personal and living expenses of the deceased should be taken as one-third (1/3 rd ). In other words, the deduction towards personal expenses to the extent of 50% is excessive and not just and proper considering the fact that the respondent Nos. 1 and 2 alongwith their respective families were staying with the deceased at the relevant time and were largely dependant on her income. 21. Be that as it may, the Tribunal, for excluding the amount received by the deceased as family pension due to demise of her husband, had noted in paragraph 26, as under: - 26. Learned counsel for the claimants further requested that about to family pension being drawn by the deceased also be calculated for the purpose of assessing the compensation. This contention and assertion of learned counsel for the claimants does not carry any conviction with the Tribunal because the deceased was getting family pension in her own right as the widow of the deceased and cannot be termed as her income for the purpose of computing the amount of compensation. The High Court, without reversing the said finding, proceeded to include the amount of Rs.7,000/- per month received by the deceased as pension amount after demise of her husband. We are in agreement with the view taken by the Tribunal and for the same reason, have to reverse the conclusion recorded by the High Court to include the said amount as loss of dependency. That could not have been taken into account, as the same was payable only to the deceased being widow and not her income as such for the purpose of computing the amount of compensation. 22. Considering the above, respondent Nos. 1 and 2 would be entitled for compensation to be reckoned on the basis of loss of dependency, due to loss of gross salary (less tax amount, if any) of the deceased and future prospects and deduction of only one-third (1/3 rd ) amount towards personal expenses of the deceased. As regards the multiplier 13 applied by the Tribunal and the High Court, the same needs no interference. As a result, on the facts and in the circumstances of this case, the amount payable towards compensation will have to be recalculated on the following basis: - Loss of dependency due to loss of income calculated at Rs.31,26,229.60/- [(Rs.23,123/- x 12 x 13) + (30% future prospects) – (1/3 rd deduction for personal expenses)]. In addition, the claimants would be entitled for a sum of Rs.70,000/- towards conventional heads in terms of dictum in paragraph 59.8 of Pranay Sethi (supra).
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### Explanation:
of the deceased employee and as a package thereof, Rule 5(2) stipulates that the family pension as per the normal rules would be payable to the family members only after the period of delivery of financial assistance is completed. The validity of this provision is not put in issue. Suffice it to say that the view taken by the High Court in Ajmero (supra) is a departure from the scheme envisaged by the 2006 Rules, in particular, Rule 5(2). That cannot be countenanced18. As a matter of fact, in the present case, the High Court committed manifest error in assuming that the respondent Nos. 1 and 2 would be eligible to receive financial assistance under the 2006 Rules. The eligibility to receive such financial assistance has been spelt out in Rule 3 of the 2006 Rules read with the provision of Pension/Family Pension Scheme, 1964. It appears that major sons and married daughters are not included in the definition. However, we need not dilate on that aspect in the present proceedings any further. It has come in the evidence of Gobind Singh, Clerk in SDM Office (PW-1) that the legal representatives of the deceased have not submitted any request for getting financial assistance till he had deposed. Indeed, respondent No. 1, who had entered the witness box, did depose that they had applied for getting salary of their deceased mother. The fact remains that there is no clear evidence on record that respondent Nos. 1 and 2 are held to be eligible to get financial assistance or in fact, they are getting such financial assistance under the 2006 Rules. The High Court, therefore, instead of providing for deduction of the amount receivable by the legal representatives of the deceased on this count (under the 2006 Rules), from the compensation amount, should have independently determined the compensation amount and ordered payment thereof subject to legal representatives of the deceased filing affidavit/declaration before the executing Court that they have not received nor would they claim any amount towards financial assistance under the 2006 Rules, so as to become entitled to withdraw the entire compensation amount19. Reverting to the determination of compensation amount, it is noticed that the Tribunal proceeded to determine the compensation amount on the basis of net-salary drawn by the deceased for the relevant period as Rs.16,918/- per month, while taking note of the fact that her gross-salary was Rs.23,123/- per month (presumably below taxable income). Concededly, any deduction from the gross- salary other than tax amount cannot be reckoned. In that, the actual salary less tax amount ought to have been taken into consideration by the Tribunal for determining the compensation amount, in light of the dictum of the Constitution Bench of this Court in paragraph 59.3 of Pranay Sethi (supra)20. Similarly, the High Court despite having taken note of the submission made by the respondent Nos. 1 and 2 that the deduction for personal expenses of the deceased should be reckoned only as one-third (1/3 rd ) amount for determining loss of dependency, maintained the deduction of 50% towards that head as ordered by the Tribunal. This Court in Pranay Sethi (supra), in paragraph 37, adverted to the dictum of this Court in Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121 ( para 30) with approval, wherein it is held that if the dependant family members are 2 to 3, as in this case, the deduction towards personal and living expenses of the deceased should be taken as one-third (1/3 rd ). In other words, the deduction towards personal expenses to the extent of 50% is excessive and not just and proper considering the fact that the respondent Nos. 1 and 2 alongwith their respective families were staying with the deceased at the relevant time and were largely dependant on her income21. Be that as it may, the Tribunal, for excluding the amount received by the deceased as family pension due to demise of her husband, had noted in paragraph 26, as under: -26. Learned counsel for the claimants further requested that about to family pension being drawn by the deceased also be calculated for the purpose of assessing the compensation. This contention and assertion of learned counsel for the claimants does not carry any conviction with the Tribunal because the deceased was getting family pension in her own right as the widow of the deceased and cannot be termed as her income for the purpose of computing the amount of compensationThe High Court, without reversing the said finding, proceeded to include the amount of Rs.7,000/- per month received by the deceased as pension amount after demise of her husband. We are in agreement with the view taken by the Tribunal and for the same reason, have to reverse the conclusion recorded by the High Court to include the said amount as loss of dependency. That could not have been taken into account, as the same was payable only to the deceased being widow and not her income as such for the purpose of computing the amount of compensation22. Considering the above, respondent Nos. 1 and 2 would be entitled for compensation to be reckoned on the basis of loss of dependency, due to loss of gross salary (less tax amount, if any) of the deceased and future prospects and deduction of only one-third (1/3 rd ) amount towards personal expenses of the deceased. As regards the multiplier 13 applied by the Tribunal and the High Court, the same needs no interference.As a result, on the facts and in the circumstances of this case, the amount payable towards compensation will have to be recalculated on the following basis: -Loss of dependency due to loss of income calculated at Rs.31,26,229.60/- [(Rs.23,123/- x 12 x 13) + (30% future prospects) – (1/3 rd deduction for personal expenses)]. In addition, the claimants would be entitled for a sum of Rs.70,000/- towards conventional heads in terms of dictum in paragraph 59.8 of Pranay Sethi (supra).
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National Insurance Co. Ltd Vs. V. Chinnamma | Such a statutory defence available to the insurer would be obliterated in view of the decision of this Court in Satpal Singhs case (supra)." 11. Asha Rani (supra) was followed by this Court in Oriental Insurance C. Ltd. vs. Devireddy Konda Reddy and Others [(2003) 2 SCC 339] holding: "10. The inevitable conclusion, therefore, is that provisions of the Act do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods carriage and the insurer would have no liability therefore." 12. Yet again in National Insurance Co Ltd. Vs. Ajit Kumar and Others [JT 2003 (7) SC 520 ] this Court held: "11. The difference in the language of "goods vehicle" as appearing in the old Act and "goods carriage" in the Act is not significance. A bare reading of the provisions makes it clear that the legislative intent was to prohibit goods vehicle from carrying any passenger. This is clear from the expression "in addition to passenger" as contained in definition of "goods vehicle" in the old Act. The position becomes further clear because the expression used is "goods carriage" is solely for the "carriage of goods". Carrying of passengers in a goods carriage is not contemplated in the Act. There is no provision similar to clause (ii) of the proviso appended to section 95 of the old Act prescribing requirement of insurance policy. Even section 147 of the Act mandates compulsory coverage against death of or bodily injury to any passenger of "public vehicle". The proviso makes it further clear that compulsory coverage in respect of drivers and conductors of public service vehicle and employees in goods vehicle would be limited to liability under the Workmens Compensation Act, 1923 (in short `WC Act). There is no reference to any passenger in "goods carriage"." 13. The effect of 1994 amendment came up for consideration before a 3- Judge Bench of this Court in National Insurance Co. ltd. vs. Baljit Kaur and Others [(2004) 2 SCC 1] wherein again it was held: "19. In Asha Rani (supra), it has been noticed that sub-clause (i) of clause (b) of sub-section (1) of Section 147 of the 1988 Act speaks of liability which may be incurred by the owner of a vehicle in respect of death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place. Furthermore, an owner of a passenger-carrying vehicle must pay premium for covering the risks of the passengers travelling in the vehicle. The premium in view of the 1994 Amendment would only cover a third party as also the owner of the goods or his authorised representative and not any passenger carried in a goods vehicle whether for hire or reward or otherwise.20. It is therefore, manifest that in spite of the amendment of 1994, the effect of the provision contained in Section 147 with respect to persons other than the owner of the goods or his authorized representative remains the same. Although the owner of the goods or his authorized representative would now be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor was any premium paid to the extent of the benefit of insurance to such category of people." (Emphasis supplied) 14. An insurance for an owner of the goods or his authorized representative travelling in a vehicle became compulsory only with effect from 14.11.1994 i.e., from the date of coming into force of Amending Act 54 of 1994.15. Furthermore, a tractor is not even a goods carriage. The "goods carriage" has been defined in Section 2(14) to mean "any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods" whereas "tractor" has been defined in Section 2(44) to mean "a motor vehicle which is not itself constructed to carry any load (other than equipment used for the purpose of propulsion); but excludes a road-roller". The "trailer" has been defined in Section 2(46) to mean "any vehicle, other than a semi-trailer and a side-car, drawn or intended to be drawn by a motor vehicle."16. A tractor fitted with a trailer may or may not answer the definition of goods carriage contained in Section 2(14) of the Motor Vehicles Act. The tractor was meant to be used for agricultural purposes. The trailer attached to the tractor, thus, necessarily is required to be used for agricultural purpose, unless registered otherwise. It may be, as has been contended by Mrs. K. Sharda Devi, that carriage of vegetables being agricultural produce would lead to an inference that the tractor was being used for agricultural purposes but the same by itself would not be construed to mean that the tractor and trailer can be used for carriage of goods by another person for his business activities. The deceased was a businessman. He used to deal in vegetables. After he purchased the vegetables, he was to transport the same to market for the purpose of sale thereof and not for any agricultural purpose. The tractor and trailer, therefore, were not being used for agricultural purposes. However, even if it be assumed that the trailer would answer the description of the "goods carriage" as contained in Section 2(14) of the Motor Vehicles Act, the case would be covered by the decisions of this Court in Asha Rani (supra) and other decisions following the same, as the accident had taken place on 24.11.1991, i.e., much prior to coming into force of 1994 amendment.17. For the reasons aforementioned, the impugned judgments cannot be sustained which are set aside accordingly. 18. | 1[ds]14. An insurance for an owner of the goods or his authorized representative travelling in a vehicle became compulsory only with effect from 14.11.1994 i.e., from the date of coming into force of Amending Act 54 of 1994.15. Furthermore, a tractor is not even a goods carriage. The "goods carriage" has been defined in Section 2(14) to mean "any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods" whereas "tractor" has been defined in Section 2(44) to mean "a motor vehicle which is not itself constructed to carry any load (other than equipment used for the purpose of propulsion); but excludes a road-roller". The "trailer" has been defined in Section 2(46) to mean "any vehicle, other than a semi-trailer and a side-car, drawn or intended to be drawn by a motor vehicle."16. A tractor fitted with a trailer may or may not answer the definition of goods carriage contained in Section 2(14) of the Motor Vehicles Act. The tractor was meant to be used for agricultural purposes. The trailer attached to the tractor, thus, necessarily is required to be used for agricultural purpose, unless registered otherwise. It may be, as has been contended by Mrs. K. Sharda Devi, that carriage of vegetables being agricultural produce would lead to an inference that the tractor was being used for agricultural purposes but the same by itself would not be construed to mean that the tractor and trailer can be used for carriage of goods by another person for his business activities. The deceased was a businessman. He used to deal in vegetables. After he purchased the vegetables, he was to transport the same to market for the purpose of sale thereof and not for any agricultural purpose. The tractor and trailer, therefore, were not being used for agricultural purposes. However, even if it be assumed that the trailer would answer the description of the "goods carriage" as contained in Section 2(14) of the Motor Vehicles Act, the case would be covered by the decisions of this Court in Asha Rani (supra) and other decisions following the same, as the accident had taken place on 24.11.1991, i.e., much prior to coming into force of 1994 amendment.17. For the reasons aforementioned, the impugned judgments cannot be sustained which are set aside accordingly | 1 | 2,579 | 471 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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Such a statutory defence available to the insurer would be obliterated in view of the decision of this Court in Satpal Singhs case (supra)." 11. Asha Rani (supra) was followed by this Court in Oriental Insurance C. Ltd. vs. Devireddy Konda Reddy and Others [(2003) 2 SCC 339] holding: "10. The inevitable conclusion, therefore, is that provisions of the Act do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods carriage and the insurer would have no liability therefore." 12. Yet again in National Insurance Co Ltd. Vs. Ajit Kumar and Others [JT 2003 (7) SC 520 ] this Court held: "11. The difference in the language of "goods vehicle" as appearing in the old Act and "goods carriage" in the Act is not significance. A bare reading of the provisions makes it clear that the legislative intent was to prohibit goods vehicle from carrying any passenger. This is clear from the expression "in addition to passenger" as contained in definition of "goods vehicle" in the old Act. The position becomes further clear because the expression used is "goods carriage" is solely for the "carriage of goods". Carrying of passengers in a goods carriage is not contemplated in the Act. There is no provision similar to clause (ii) of the proviso appended to section 95 of the old Act prescribing requirement of insurance policy. Even section 147 of the Act mandates compulsory coverage against death of or bodily injury to any passenger of "public vehicle". The proviso makes it further clear that compulsory coverage in respect of drivers and conductors of public service vehicle and employees in goods vehicle would be limited to liability under the Workmens Compensation Act, 1923 (in short `WC Act). There is no reference to any passenger in "goods carriage"." 13. The effect of 1994 amendment came up for consideration before a 3- Judge Bench of this Court in National Insurance Co. ltd. vs. Baljit Kaur and Others [(2004) 2 SCC 1] wherein again it was held: "19. In Asha Rani (supra), it has been noticed that sub-clause (i) of clause (b) of sub-section (1) of Section 147 of the 1988 Act speaks of liability which may be incurred by the owner of a vehicle in respect of death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place. Furthermore, an owner of a passenger-carrying vehicle must pay premium for covering the risks of the passengers travelling in the vehicle. The premium in view of the 1994 Amendment would only cover a third party as also the owner of the goods or his authorised representative and not any passenger carried in a goods vehicle whether for hire or reward or otherwise.20. It is therefore, manifest that in spite of the amendment of 1994, the effect of the provision contained in Section 147 with respect to persons other than the owner of the goods or his authorized representative remains the same. Although the owner of the goods or his authorized representative would now be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor was any premium paid to the extent of the benefit of insurance to such category of people." (Emphasis supplied) 14. An insurance for an owner of the goods or his authorized representative travelling in a vehicle became compulsory only with effect from 14.11.1994 i.e., from the date of coming into force of Amending Act 54 of 1994.15. Furthermore, a tractor is not even a goods carriage. The "goods carriage" has been defined in Section 2(14) to mean "any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods" whereas "tractor" has been defined in Section 2(44) to mean "a motor vehicle which is not itself constructed to carry any load (other than equipment used for the purpose of propulsion); but excludes a road-roller". The "trailer" has been defined in Section 2(46) to mean "any vehicle, other than a semi-trailer and a side-car, drawn or intended to be drawn by a motor vehicle."16. A tractor fitted with a trailer may or may not answer the definition of goods carriage contained in Section 2(14) of the Motor Vehicles Act. The tractor was meant to be used for agricultural purposes. The trailer attached to the tractor, thus, necessarily is required to be used for agricultural purpose, unless registered otherwise. It may be, as has been contended by Mrs. K. Sharda Devi, that carriage of vegetables being agricultural produce would lead to an inference that the tractor was being used for agricultural purposes but the same by itself would not be construed to mean that the tractor and trailer can be used for carriage of goods by another person for his business activities. The deceased was a businessman. He used to deal in vegetables. After he purchased the vegetables, he was to transport the same to market for the purpose of sale thereof and not for any agricultural purpose. The tractor and trailer, therefore, were not being used for agricultural purposes. However, even if it be assumed that the trailer would answer the description of the "goods carriage" as contained in Section 2(14) of the Motor Vehicles Act, the case would be covered by the decisions of this Court in Asha Rani (supra) and other decisions following the same, as the accident had taken place on 24.11.1991, i.e., much prior to coming into force of 1994 amendment.17. For the reasons aforementioned, the impugned judgments cannot be sustained which are set aside accordingly. 18.
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14. An insurance for an owner of the goods or his authorized representative travelling in a vehicle became compulsory only with effect from 14.11.1994 i.e., from the date of coming into force of Amending Act 54 of 1994.15. Furthermore, a tractor is not even a goods carriage. The "goods carriage" has been defined in Section 2(14) to mean "any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods" whereas "tractor" has been defined in Section 2(44) to mean "a motor vehicle which is not itself constructed to carry any load (other than equipment used for the purpose of propulsion); but excludes a road-roller". The "trailer" has been defined in Section 2(46) to mean "any vehicle, other than a semi-trailer and a side-car, drawn or intended to be drawn by a motor vehicle."16. A tractor fitted with a trailer may or may not answer the definition of goods carriage contained in Section 2(14) of the Motor Vehicles Act. The tractor was meant to be used for agricultural purposes. The trailer attached to the tractor, thus, necessarily is required to be used for agricultural purpose, unless registered otherwise. It may be, as has been contended by Mrs. K. Sharda Devi, that carriage of vegetables being agricultural produce would lead to an inference that the tractor was being used for agricultural purposes but the same by itself would not be construed to mean that the tractor and trailer can be used for carriage of goods by another person for his business activities. The deceased was a businessman. He used to deal in vegetables. After he purchased the vegetables, he was to transport the same to market for the purpose of sale thereof and not for any agricultural purpose. The tractor and trailer, therefore, were not being used for agricultural purposes. However, even if it be assumed that the trailer would answer the description of the "goods carriage" as contained in Section 2(14) of the Motor Vehicles Act, the case would be covered by the decisions of this Court in Asha Rani (supra) and other decisions following the same, as the accident had taken place on 24.11.1991, i.e., much prior to coming into force of 1994 amendment.17. For the reasons aforementioned, the impugned judgments cannot be sustained which are set aside accordingly
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Deputy Custodian, Evacuee Property, New Delhiand Others Vs. Official Receiver Of The Estate Of Daulat Ramsurana,Delhi | observe that the High Court thought that this decision afforded substantial guidance in determining the question of construction with which it was concerned in the present appeal. After quoting the material observations made by Ghulam Hassan, J. in Ebrahim Aboobakers case, 1953 SCR 691 : (AIR 1953 SC 298 ) the High Court has observed that in view of law laid down by their Lordships of the Supreme Court it must be held that as soon as the order of adjudication was made on the 17th June, 1950, the property of the insolvent vested in the Official Receiver for the purposes mentioned in the Provincial Insolvency Act, and so, it was not open to the Custodian to issue a declaration under S. 7(1) of the Act. With respect, we are unable to see how the decision of this Court in Ebrahim Aboobakers case 1953 SCR 691 : (AIR 1953 SC 298 ) can have any relevance or materiality in construing S. 7(1) of the Act for the purpose of deciding the dispute between the parties before us. The main test on which the validity of the proceedings taken against Ebrahim Aboobakar was successfully challenged, was that the alleged evacuee having died, a proper and valid enquiry could not be held. That test cannot be applied in the present case effectively. The alleged evacuee was alive at the date of the enquiry and there was no infirmity in the proceedings taken in that behalf. Having taken the view that the decision of this Court in Ebrahim Aboobakers case was decisively in favour of the respondents contention, the High Court did not feel called upon to address itself to the question of construction of S. 7(1) in the light of the other relevant considerations to which we have referred.14. Reverting then to S. 7(2) of the Act, it is noticeable that as a result of this provision, if a notice has been issued under sub-sec. (1) in respect of any property, such property shall, pending the determination of the question whether it is evacuee property or otherwise, be incapable of being transferred or charged in any way, except with the leave of the Custodian, and no person shall be capable of taking any benefit from such transfer or charge except with such leave. It is remarkable that the legislature has taken the precaution of prescribing a blanket ban on transfers of all properties in respect of which proceedings have commenced under S. 7(1). This ban operates even in respect of properties which may ultimately be found to be not evacuee properties, and that means the intention of the legislature clearly was to leave all properties as they were when proceedings have been commenced in respect of them under S. 7(1).15. Thus, the position appears to be that transfers made by intending evacuees before they migrated from India come within the definition of evacuee property, and declaration can be made in respect of properties so transferred under S. 7(1). Transfers made pending the proceedings cannot defeat the purpose of the enquiry under S. 7(1) and a declaration can be made in spite of such transfers pending the enquiry. The death of an alleged evacuee does not interrupt the continuance of the proceedings and the declaration can be made even after his death that his properties were evacuee properties. If that be so, could it have been the intention of the legislature to permit transfers of their properties by evacuees between the date of their migration and the date of the commencement of the proceedings under S. 7(1)? If the view taken by the High Court is right, then it follows that wherever properties have been transferred by evacuees after their migration and before the proceedings under S. 7(1) commenced, they would be beyond the reach of the Act. In our opinion, it is very difficult, if not impossible, to assume that such could have been the intention of the legislature. The risk posed by transfers which intending evacuees were naturally inclined to make to save their fortunes was so grave at the relevant time that the legislature has taken the precaution of making appropriate provisions to save the economy of the country; and so, it seems to us that the consequence which inevitably flows from the adoption of the construction for which Mr. Pathak contends is so patently inconsistent with the clear and unambiguous object of the Act that it would not be reasonable to accept that construction. In our opinion, the construction of S. 7 (1) presents a problem which can be resolved not merely by the adoption of the mechanical rule of construction based on grammar, but by a liberal construction which takes into account the bearing and purport of the relevant words used in S. 7(1), considered in the light of the other relevant provisions of the Act and the principal object of the Act.16. Mr. Pathak no doubt attempted to suggest that the omission to deal with the category of transfers to which we have just referred may have been deliberate because he points out that the legislature may have intended that if the properties of the evacuees were compulsorily acquired under the Land Acquisition Act, or had vested in the Official Receivers under S. 28(7) of the Provincial Insolvency Act, they should be exempted from the proceedings under S. 7(1) of the Act. We are not impressed by the argument. If the legislature wanted to save these categories of transactions where the evacuees title was lost, it could have easily made a suitable provision in that behalf. We feel no difficulty in holding that the legislature could not have intended to permit private transfers of their properties by evacuees after they migrated from India, provided these transfers were completed before the commencement of the proceedings under S. 7(1). We are, therefore, satisfied that the view taken by the High Court does not correctly represent the true scope and effect of the provisions contained in S. 7(1) of Act. | 1[ds]5. The argument thus presented for the appellants prima facie appears to be attractive, but on a close examination of the relevant provisions of sections 7 and 8 of the Act, it becomes plain that the said argument proceeds on a misconception of the effect of the two section read together. It is true that S. 8 (1) (a) provides. that any property declared to be evacuee property under S. 7 shall be deemed to have vested in the Custodian for the State in the case of the property of an evacuee as defined in sub-clause (i) of clause (d) of section 2, from the date on which he leaves or left any place in a State for any place outside the territories now forming part of India. It has been found by the appropriate authorities that Daulat Ram became an evacuee under S. 2(d)(i) of the Act, and so, there can be no doubt that after the declaration was made in respect of his property under Section 7(1), the vesting in the Custodian will be deemed to have taken place on the date of his migration. But this position does not assist the appellants in the matter of construing S. 7(1), and the decision of the point raised by the appellants must ultimately depend upon the construction of the said section. If the view taken by the High Court is right that before a declaration can be made under S. 7(1), it must be shown that the property which is the subject-matter of the proceedings under the said provision is, at the date of the declaration, evacuee property, then the result would be that if the said property is not property of the evacuee at the relevant time, no declaration can be made under S. 7(1) and there would be no scope for the retrospective operation of the vesting of the property in the Custodian under S. 8(1).S. 8(1) can come into operation only if and alter a notification has been validly and properly made under S. 7(1). In other words S. 8(1) provides for a statutory consequence of a valid declaration made under S. 7(1). That is why the said section cannot be pressed into service for construing S.argument is misconceived. The relevant provisions of the two sections of the Provincial Insolvency Act do not disclose anything inconsistent with the relevant provisions of the Act, and so, there is no occasion to invoke the provisions of S. 4(1) in order to establish the conclusion that the provisions of the Act will prevail over the said provisions of the Insolvency Act. S. 28(7) read with ..S. 27 of the Insolvency Act merely provides that when an order of adjudication is made under S.27, the insolvents property vests in the official Receiver as from the date of the presentation of the petition made against the debtor. Neither S. 7(1), nor S. 8 . of the Act can be said to be inconsistent with these provisions. That is why we do not think any argument can be validly based on the provisions of S. 4(1) of the Act in repelling the claim made by the respondent in the present proceedings.There is considerable force in this argument. The rules of grammar may suggest that when the section says that the property is evacuee property, it prima facie indicates that the property should bear that character at the time when the opinion isscheme of S. 40 is clear. The provisions of S. 40(1) read with the other relevant clauses of the said section indicate beyond any doubt that the legislature intended to prohibit transfers made by intending evacuees with the object of converting their properties into cash and taking it away from India. It was thought that unless this drastic measure was adopted, the economic interests of the country would be put in great jeopardy because intending evacuees could openly and conveniently dispose of their properties and leave the country with cash in their pocket thereby materially affecting the national economy of our country. That is why in defining evacuee property, it has expressly provided that this definition would take in properties which had been transferred by the intending evacuees prior to their migration from India after the 14th August, 1947, and the inclusive part of the definition covers all modes of transfers which become ineffective by reason of the provisions contained in S. 40.Thus, it is clear that if the intending evacuees transferred their properties before migration, their properties would be deemed to be evacuee properties for the purpose of S. 7 (1) and the transferees would have to submit to the vesting of the said properties in the Custodian under S. 8 (1) of theour opinion, it is very difficult, if not impossible, to assume that such could have been the intention of the legislature. The risk posed by transfers which intending evacuees were naturally inclined to make to save their fortunes was so grave at the relevant time that the legislature has taken the precaution of making appropriate provisions to save the economy of the country; and so, it seems to us that the consequence which inevitably flows from the adoption of the construction for which Mr. Pathak contends is so patently inconsistent with the clear and unambiguous object of the Act that it would not be reasonable to accept that construction. In our opinion, the construction of S. 7 (1) presents a problem which can be resolved not merely by the adoption of the mechanical rule of construction based on grammar, but by a liberal construction which takes into account the bearing and purport of the relevant words used in S. 7(1), considered in the light of the other relevant provisions of the Act and the principal object of theare not impressed by the argument. If the legislature wanted to save these categories of transactions where the evacuees title was lost, it could have easily made a suitable provision in that behalf. We feel no difficulty in holding that the legislature could not have intended to permit private transfers of their properties by evacuees after they migrated from India, provided these transfers were completed before the commencement of the proceedings under S. 7(1). We are, therefore, satisfied that the view taken by the High Court does not correctly represent the true scope and effect of the provisions contained in S. 7(1) of Act.If this construction is not accepted, it would clearly lead to very anomalous consequences. We have already noticed that have inclusive part of the definition prescribed by S. 2(f) brings within the scope of the definition properties which are transferred by an Indian citizen before he migrated to Pakistan.Thus, the position appears to be that transfers made by intending evacuees before they migrated from India come within the definition of evacuee property, and declaration can be made in respect of properties so transferred under S. 7(1). Transfers made pending the proceedings cannot defeat the purpose of the enquiry under S. 7(1) and a declaration can be made in spite of such transfers pending the enquiry. The death of an alleged evacuee does not interrupt the continuance of the proceedings and the declaration can be made even after his death that his properties were evacuee properties. If that be so, could it have been the intention of the legislature to permit transfers of their properties by evacuees between the date of their migration and the date of the commencement of the proceedings under S. 7(1)? If the view taken by the High Court is right, then it follows that wherever properties have been transferred by evacuees after their migration and before the proceedings under S. 7(1) commenced, they would be beyond the reach of the Act. Inour opinion, it is very difficult, if not impossible, to assume that such could have been the intention of the legislature. The risk posed by transfers which intending evacuees were naturally inclined to make to save their fortunes was so grave at the relevant time that the legislature has taken the precaution of making appropriate provisions to save the economy of the country; and so, it seems to us that the consequence which inevitably flows from the adoption of the construction for which Mr. Pathak contends is so patently inconsistent with the clear and unambiguous object of the Act that it would not be reasonable to accept that construction. In our opinion, the construction of S. 7 (1) presents a problem which can be resolved not merely by the adoption of the mechanical rule of construction based on grammar, but by a liberal construction which takes into account the bearing and purport of the relevant words used in S. 7(1), considered in the light of the other relevant provisions of the Act and the principal object of the | 1 | 4,793 | 1,644 | ### 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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observe that the High Court thought that this decision afforded substantial guidance in determining the question of construction with which it was concerned in the present appeal. After quoting the material observations made by Ghulam Hassan, J. in Ebrahim Aboobakers case, 1953 SCR 691 : (AIR 1953 SC 298 ) the High Court has observed that in view of law laid down by their Lordships of the Supreme Court it must be held that as soon as the order of adjudication was made on the 17th June, 1950, the property of the insolvent vested in the Official Receiver for the purposes mentioned in the Provincial Insolvency Act, and so, it was not open to the Custodian to issue a declaration under S. 7(1) of the Act. With respect, we are unable to see how the decision of this Court in Ebrahim Aboobakers case 1953 SCR 691 : (AIR 1953 SC 298 ) can have any relevance or materiality in construing S. 7(1) of the Act for the purpose of deciding the dispute between the parties before us. The main test on which the validity of the proceedings taken against Ebrahim Aboobakar was successfully challenged, was that the alleged evacuee having died, a proper and valid enquiry could not be held. That test cannot be applied in the present case effectively. The alleged evacuee was alive at the date of the enquiry and there was no infirmity in the proceedings taken in that behalf. Having taken the view that the decision of this Court in Ebrahim Aboobakers case was decisively in favour of the respondents contention, the High Court did not feel called upon to address itself to the question of construction of S. 7(1) in the light of the other relevant considerations to which we have referred.14. Reverting then to S. 7(2) of the Act, it is noticeable that as a result of this provision, if a notice has been issued under sub-sec. (1) in respect of any property, such property shall, pending the determination of the question whether it is evacuee property or otherwise, be incapable of being transferred or charged in any way, except with the leave of the Custodian, and no person shall be capable of taking any benefit from such transfer or charge except with such leave. It is remarkable that the legislature has taken the precaution of prescribing a blanket ban on transfers of all properties in respect of which proceedings have commenced under S. 7(1). This ban operates even in respect of properties which may ultimately be found to be not evacuee properties, and that means the intention of the legislature clearly was to leave all properties as they were when proceedings have been commenced in respect of them under S. 7(1).15. Thus, the position appears to be that transfers made by intending evacuees before they migrated from India come within the definition of evacuee property, and declaration can be made in respect of properties so transferred under S. 7(1). Transfers made pending the proceedings cannot defeat the purpose of the enquiry under S. 7(1) and a declaration can be made in spite of such transfers pending the enquiry. The death of an alleged evacuee does not interrupt the continuance of the proceedings and the declaration can be made even after his death that his properties were evacuee properties. If that be so, could it have been the intention of the legislature to permit transfers of their properties by evacuees between the date of their migration and the date of the commencement of the proceedings under S. 7(1)? If the view taken by the High Court is right, then it follows that wherever properties have been transferred by evacuees after their migration and before the proceedings under S. 7(1) commenced, they would be beyond the reach of the Act. In our opinion, it is very difficult, if not impossible, to assume that such could have been the intention of the legislature. The risk posed by transfers which intending evacuees were naturally inclined to make to save their fortunes was so grave at the relevant time that the legislature has taken the precaution of making appropriate provisions to save the economy of the country; and so, it seems to us that the consequence which inevitably flows from the adoption of the construction for which Mr. Pathak contends is so patently inconsistent with the clear and unambiguous object of the Act that it would not be reasonable to accept that construction. In our opinion, the construction of S. 7 (1) presents a problem which can be resolved not merely by the adoption of the mechanical rule of construction based on grammar, but by a liberal construction which takes into account the bearing and purport of the relevant words used in S. 7(1), considered in the light of the other relevant provisions of the Act and the principal object of the Act.16. Mr. Pathak no doubt attempted to suggest that the omission to deal with the category of transfers to which we have just referred may have been deliberate because he points out that the legislature may have intended that if the properties of the evacuees were compulsorily acquired under the Land Acquisition Act, or had vested in the Official Receivers under S. 28(7) of the Provincial Insolvency Act, they should be exempted from the proceedings under S. 7(1) of the Act. We are not impressed by the argument. If the legislature wanted to save these categories of transactions where the evacuees title was lost, it could have easily made a suitable provision in that behalf. We feel no difficulty in holding that the legislature could not have intended to permit private transfers of their properties by evacuees after they migrated from India, provided these transfers were completed before the commencement of the proceedings under S. 7(1). We are, therefore, satisfied that the view taken by the High Court does not correctly represent the true scope and effect of the provisions contained in S. 7(1) of Act.
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of the presentation of the petition made against the debtor. Neither S. 7(1), nor S. 8 . of the Act can be said to be inconsistent with these provisions. That is why we do not think any argument can be validly based on the provisions of S. 4(1) of the Act in repelling the claim made by the respondent in the present proceedings.There is considerable force in this argument. The rules of grammar may suggest that when the section says that the property is evacuee property, it prima facie indicates that the property should bear that character at the time when the opinion isscheme of S. 40 is clear. The provisions of S. 40(1) read with the other relevant clauses of the said section indicate beyond any doubt that the legislature intended to prohibit transfers made by intending evacuees with the object of converting their properties into cash and taking it away from India. It was thought that unless this drastic measure was adopted, the economic interests of the country would be put in great jeopardy because intending evacuees could openly and conveniently dispose of their properties and leave the country with cash in their pocket thereby materially affecting the national economy of our country. That is why in defining evacuee property, it has expressly provided that this definition would take in properties which had been transferred by the intending evacuees prior to their migration from India after the 14th August, 1947, and the inclusive part of the definition covers all modes of transfers which become ineffective by reason of the provisions contained in S. 40.Thus, it is clear that if the intending evacuees transferred their properties before migration, their properties would be deemed to be evacuee properties for the purpose of S. 7 (1) and the transferees would have to submit to the vesting of the said properties in the Custodian under S. 8 (1) of theour opinion, it is very difficult, if not impossible, to assume that such could have been the intention of the legislature. The risk posed by transfers which intending evacuees were naturally inclined to make to save their fortunes was so grave at the relevant time that the legislature has taken the precaution of making appropriate provisions to save the economy of the country; and so, it seems to us that the consequence which inevitably flows from the adoption of the construction for which Mr. Pathak contends is so patently inconsistent with the clear and unambiguous object of the Act that it would not be reasonable to accept that construction. In our opinion, the construction of S. 7 (1) presents a problem which can be resolved not merely by the adoption of the mechanical rule of construction based on grammar, but by a liberal construction which takes into account the bearing and purport of the relevant words used in S. 7(1), considered in the light of the other relevant provisions of the Act and the principal object of theare not impressed by the argument. If the legislature wanted to save these categories of transactions where the evacuees title was lost, it could have easily made a suitable provision in that behalf. We feel no difficulty in holding that the legislature could not have intended to permit private transfers of their properties by evacuees after they migrated from India, provided these transfers were completed before the commencement of the proceedings under S. 7(1). We are, therefore, satisfied that the view taken by the High Court does not correctly represent the true scope and effect of the provisions contained in S. 7(1) of Act.If this construction is not accepted, it would clearly lead to very anomalous consequences. We have already noticed that have inclusive part of the definition prescribed by S. 2(f) brings within the scope of the definition properties which are transferred by an Indian citizen before he migrated to Pakistan.Thus, the position appears to be that transfers made by intending evacuees before they migrated from India come within the definition of evacuee property, and declaration can be made in respect of properties so transferred under S. 7(1). Transfers made pending the proceedings cannot defeat the purpose of the enquiry under S. 7(1) and a declaration can be made in spite of such transfers pending the enquiry. The death of an alleged evacuee does not interrupt the continuance of the proceedings and the declaration can be made even after his death that his properties were evacuee properties. If that be so, could it have been the intention of the legislature to permit transfers of their properties by evacuees between the date of their migration and the date of the commencement of the proceedings under S. 7(1)? If the view taken by the High Court is right, then it follows that wherever properties have been transferred by evacuees after their migration and before the proceedings under S. 7(1) commenced, they would be beyond the reach of the Act. Inour opinion, it is very difficult, if not impossible, to assume that such could have been the intention of the legislature. The risk posed by transfers which intending evacuees were naturally inclined to make to save their fortunes was so grave at the relevant time that the legislature has taken the precaution of making appropriate provisions to save the economy of the country; and so, it seems to us that the consequence which inevitably flows from the adoption of the construction for which Mr. Pathak contends is so patently inconsistent with the clear and unambiguous object of the Act that it would not be reasonable to accept that construction. In our opinion, the construction of S. 7 (1) presents a problem which can be resolved not merely by the adoption of the mechanical rule of construction based on grammar, but by a liberal construction which takes into account the bearing and purport of the relevant words used in S. 7(1), considered in the light of the other relevant provisions of the Act and the principal object of the
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Ramautar Lal Jain Vs. Maya Kaur & 13 Ors | facts it was not possible to hold that the Appeal Board was in error in holding that the firm was a different entity.6. This Court in Dhani Devi v. Sant Bihar, (1969) 2 SCR 567 = (AIR 1970 SC 759 ) held that in the case of death of an applicant before the final disposal of his application for the grant of permit in respect of his vehicle the Regional Transport Authority has power to substitute the person succeeding to the possession of the vehicles in place of the deceased applicant and to allow the successor to prosecute the application. The ratio of the decision is that as the relief sought for in the application is dependent upon and related to the possession of the vehicles the application is capable of being revived at the instance of the person succeeding to the possession of the vehicles.7. A persons in possession of a transport vehicle is not entitled to a permit as a matter of right. The only right is to make the application for the grant of a permit. There is no provision in the Act as to what happens on the death of an applicant for permit during the pendency of the application. The Regional Transport Authority has jurisdiction and discretion in the matter of allowing or a refusing substitution.8. If a person dies after obtaining the permit the Regional Transport Authority has power under S. 61 (2) of the Act to transfer the permit to the person succeeding to the possession of the vehicle in place of the deceased applicant. The Regional Transport Authority may similarly deal with the case of an applicant dying during the pendency of an application under Section 57 (8) of the Act for varying the conditions of the permit. An application for renewal of a permit under S.58 of the Act may raise a similar situation and the Regional Transport Authority may equally deal with it.9. In the recent unreported decision in M/s. Ram Lal Jain v. Minister of Transport, (Civil Appeal No. 2606 of 1969 decided on 28-11-1973) = (reported in AIR 1974 SC 326 ) this court dealt with another appeal preferred by the same appellant against the judgment of the Patna High Court. In that appeal the application made by Ram Autar Lal Jain was allowed to be prosecuted by the firm of M/s. Ram Autar Lal Jain and permit was granted to the appellant. The Minister rejected the application of the firm of M/s. Ram Autar Lal Jain on two grounds. First the firm not being an heir to Ram Autar Lal Jain should not have been allowed to prosecute the application before the Regional Transport Authority. Secondly, the appellant did not satisfy the criterion set up by the Regional Transport Authority in so far as the appellant was neither a newcomer nor a small operator. The second ground is on merits. The firm of M/s. Ram Autar Lal Jain challenged the order before the Patna High Court. The Patna High Court dismissed the petition. This Court dismissed the appeal on the ground that where the heirs of the deceased applicant are not in possession of a vehicle the decision in Dhani Devi case, (1969) 2 SCR 507 = AIR 1970 SC 759 ) (supra) would not apply.10. In Dhani Deiv case, (1969) 2 SCR 507 = (AIR 1970 SC 759 ) (supra) the Regional Transport Authority transferred to her all the permits held by her husband for other routes. The Regional Transport Authority allowed Dhani Devi to prosecute the application filed by her husband and finally granted permit to her on that application. This Court found in Dhani Devi case, (1969) 2 SCR 527 = (AIR 1979 SE 759) (supra) that the High Court was in error in holding that the Regional Transport Authority acted without jurisdiction in allowing Dhani Devi to prosecute her husbands application.11. In the case of death of an applicant for the grant of a stage carriage permit before the grant of a permit the heirs can apply for substitution in place of the original applicant. There is no legal right to the grant of permit. The Regional Transport Authority has jurisdiction and discretion in the matter of allowing or refusing substitution.12. If the proceedings are likely to be delayed or a substitution will be detrimental to the interest of the public, the Regional Transport Authority is not bound to allow substitution. There is jurisdiction to grant or allow or refuse substitution. The Regional Transport Authority will exercise discretion in a judicious manner in the facts and circumstances of each case as to whether a substitution may be allowed.13. It appears that this Court in the unreported decision in M/s. Ram Autar Lal Jain case, Civil Appeal No. 2606 of 1969, D/- 28-11-1973 = (now reported in AIR 1974 SC 326 ) (supra) found that the absence of possession of a vehicle by the successor of the applicant was a proper exercise of discretion by the authorities on the facts of that case.14. In the present case, the application of the firm for permission to continue the proceedings after the death of Ram Autar Lal Jain was notified in the Gazette. Objections were invited. No objections were filed by any one. The Regional Transport Authority granted the permit in the name of the firm. The Appeal Board held that Regional Transport Authority had no jurisdiction to grant permit in favour of the appellant. The Regional Transport Authority acted within jurisdiction in allowing substitution. There was no jurisdictional error of the Regional Transport Authority. It is a different matter whether the order was justified on merits. The Appeal Board and the Minister did not consider whether the order of the Regional Transport Authority was justified on the merits of the case but merely held that the order was without jurisdiction.15. The decision of the Appeal Board as well as of the Minister was wrong in holding that the Regional Transport Authority had acted beyond jurisdiction.16 | 1[ds]11. In the case of death of an applicant for the grant of a stage carriage permit before the grant of a permit the heirs can apply for substitution in place of the original applicant. There is no legal right to the grant of permit. The Regional Transport Authority has jurisdiction and discretion in the matter of allowing or refusing substitution.12. If the proceedings are likely to be delayed or a substitution will be detrimental to the interest of the public, the Regional Transport Authority is not bound to allow substitution. There is jurisdiction to grant or allow or refuse substitution. The Regional Transport Authority will exercise discretion in a judicious manner in the facts and circumstances of each case as to whether a substitution may be allowed.In the present case, the application of the firm for permission to continue the proceedings after the death of Ram Autar Lal Jain was notified in the Gazette. Objections were invited. No objections were filed by any one. The Regional Transport Authority granted the permit in the name of the firm. The Appeal Board held that Regional Transport Authority had no jurisdiction to grant permit in favour of the appellant. The Regional Transport Authority acted within jurisdiction in allowing substitution. There was no jurisdictional error of the Regional Transport Authority. It is a different matter whether the order was justified on merits. The Appeal Board and the Minister did not consider whether the order of the Regional Transport Authority was justified on the merits of the case but merely held that the order was without jurisdiction.15. The decision of the Appeal Board as well as of the Minister was wrong in holding that the Regional Transport Authority had acted beyond jurisdiction.This Court in Dhani Devi v. Sant Bihar, (1969) 2 SCR 567 = (AIR 1970 SC 759 ) held that in the case of death of an applicant before the final disposal of his application for the grant of permit in respect of his vehicle the Regional Transport Authority has power to substitute the person succeeding to the possession of the vehicles in place of the deceased applicant and to allow the successor to prosecute the application. The ratio of the decision is that as the relief sought for in the application is dependent upon and related to the possession of the vehicles the application is capable of being revived at the instance of the person succeeding to the possession of the vehicles.In the case of death of an applicant for the grant of a stage carriage permit before the grant of a permit the heirs can apply for substitution in place of the original applicant. There is no legal right to the grant of permit. The Regional Transport Authority has jurisdiction and discretion in the matter of allowing or refusing substitution.12. If the proceedings are likely to be delayed or a substitution will be detrimental to the interest of the public, the Regional Transport Authority is not bound to allow substitution. There is jurisdiction to grant or allow or refuse substitution. The Regional Transport Authority will exercise discretion in a judicious manner in the facts and circumstances of each case as to whether a substitution may be allowed.It appears that this Court in the unreported decision in M/s. Ram Autar Lal Jain case, Civil Appeal No. 2606 of 1969, D/= (now reported in AIR 1974 SC 326 ) (supra) found that the absence of possession of a vehicle by the successor of the applicant was a proper exercise of discretion by the authorities on the facts of that case.14.In the present case, the application of the firm for permission to continue the proceedings after the death of Ram Autar Lal Jain was notified in the Gazette. Objections were invited. No objections were filed by any one. The Regional Transport Authority granted the permit in the name of the firm. The Appeal Board held that Regional Transport Authority had no jurisdiction to grant permit in favour of the appellant. The Regional Transport Authority acted within jurisdiction in allowing substitution. There was no jurisdictional error of the Regional Transport Authority. It is a different matter whether the order was justified on merits. The Appeal Board and the Minister did not consider whether the order of the Regional Transport Authority was justified on the merits of the case but merely held that the order was without jurisdiction.15. The decision of the Appeal Board as well as of the Minister was wrong in holding that the Regional Transport Authority had acted beyond jurisdiction. | 1 | 1,558 | 807 | ### Instruction:
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facts it was not possible to hold that the Appeal Board was in error in holding that the firm was a different entity.6. This Court in Dhani Devi v. Sant Bihar, (1969) 2 SCR 567 = (AIR 1970 SC 759 ) held that in the case of death of an applicant before the final disposal of his application for the grant of permit in respect of his vehicle the Regional Transport Authority has power to substitute the person succeeding to the possession of the vehicles in place of the deceased applicant and to allow the successor to prosecute the application. The ratio of the decision is that as the relief sought for in the application is dependent upon and related to the possession of the vehicles the application is capable of being revived at the instance of the person succeeding to the possession of the vehicles.7. A persons in possession of a transport vehicle is not entitled to a permit as a matter of right. The only right is to make the application for the grant of a permit. There is no provision in the Act as to what happens on the death of an applicant for permit during the pendency of the application. The Regional Transport Authority has jurisdiction and discretion in the matter of allowing or a refusing substitution.8. If a person dies after obtaining the permit the Regional Transport Authority has power under S. 61 (2) of the Act to transfer the permit to the person succeeding to the possession of the vehicle in place of the deceased applicant. The Regional Transport Authority may similarly deal with the case of an applicant dying during the pendency of an application under Section 57 (8) of the Act for varying the conditions of the permit. An application for renewal of a permit under S.58 of the Act may raise a similar situation and the Regional Transport Authority may equally deal with it.9. In the recent unreported decision in M/s. Ram Lal Jain v. Minister of Transport, (Civil Appeal No. 2606 of 1969 decided on 28-11-1973) = (reported in AIR 1974 SC 326 ) this court dealt with another appeal preferred by the same appellant against the judgment of the Patna High Court. In that appeal the application made by Ram Autar Lal Jain was allowed to be prosecuted by the firm of M/s. Ram Autar Lal Jain and permit was granted to the appellant. The Minister rejected the application of the firm of M/s. Ram Autar Lal Jain on two grounds. First the firm not being an heir to Ram Autar Lal Jain should not have been allowed to prosecute the application before the Regional Transport Authority. Secondly, the appellant did not satisfy the criterion set up by the Regional Transport Authority in so far as the appellant was neither a newcomer nor a small operator. The second ground is on merits. The firm of M/s. Ram Autar Lal Jain challenged the order before the Patna High Court. The Patna High Court dismissed the petition. This Court dismissed the appeal on the ground that where the heirs of the deceased applicant are not in possession of a vehicle the decision in Dhani Devi case, (1969) 2 SCR 507 = AIR 1970 SC 759 ) (supra) would not apply.10. In Dhani Deiv case, (1969) 2 SCR 507 = (AIR 1970 SC 759 ) (supra) the Regional Transport Authority transferred to her all the permits held by her husband for other routes. The Regional Transport Authority allowed Dhani Devi to prosecute the application filed by her husband and finally granted permit to her on that application. This Court found in Dhani Devi case, (1969) 2 SCR 527 = (AIR 1979 SE 759) (supra) that the High Court was in error in holding that the Regional Transport Authority acted without jurisdiction in allowing Dhani Devi to prosecute her husbands application.11. In the case of death of an applicant for the grant of a stage carriage permit before the grant of a permit the heirs can apply for substitution in place of the original applicant. There is no legal right to the grant of permit. The Regional Transport Authority has jurisdiction and discretion in the matter of allowing or refusing substitution.12. If the proceedings are likely to be delayed or a substitution will be detrimental to the interest of the public, the Regional Transport Authority is not bound to allow substitution. There is jurisdiction to grant or allow or refuse substitution. The Regional Transport Authority will exercise discretion in a judicious manner in the facts and circumstances of each case as to whether a substitution may be allowed.13. It appears that this Court in the unreported decision in M/s. Ram Autar Lal Jain case, Civil Appeal No. 2606 of 1969, D/- 28-11-1973 = (now reported in AIR 1974 SC 326 ) (supra) found that the absence of possession of a vehicle by the successor of the applicant was a proper exercise of discretion by the authorities on the facts of that case.14. In the present case, the application of the firm for permission to continue the proceedings after the death of Ram Autar Lal Jain was notified in the Gazette. Objections were invited. No objections were filed by any one. The Regional Transport Authority granted the permit in the name of the firm. The Appeal Board held that Regional Transport Authority had no jurisdiction to grant permit in favour of the appellant. The Regional Transport Authority acted within jurisdiction in allowing substitution. There was no jurisdictional error of the Regional Transport Authority. It is a different matter whether the order was justified on merits. The Appeal Board and the Minister did not consider whether the order of the Regional Transport Authority was justified on the merits of the case but merely held that the order was without jurisdiction.15. The decision of the Appeal Board as well as of the Minister was wrong in holding that the Regional Transport Authority had acted beyond jurisdiction.16
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11. In the case of death of an applicant for the grant of a stage carriage permit before the grant of a permit the heirs can apply for substitution in place of the original applicant. There is no legal right to the grant of permit. The Regional Transport Authority has jurisdiction and discretion in the matter of allowing or refusing substitution.12. If the proceedings are likely to be delayed or a substitution will be detrimental to the interest of the public, the Regional Transport Authority is not bound to allow substitution. There is jurisdiction to grant or allow or refuse substitution. The Regional Transport Authority will exercise discretion in a judicious manner in the facts and circumstances of each case as to whether a substitution may be allowed.In the present case, the application of the firm for permission to continue the proceedings after the death of Ram Autar Lal Jain was notified in the Gazette. Objections were invited. No objections were filed by any one. The Regional Transport Authority granted the permit in the name of the firm. The Appeal Board held that Regional Transport Authority had no jurisdiction to grant permit in favour of the appellant. The Regional Transport Authority acted within jurisdiction in allowing substitution. There was no jurisdictional error of the Regional Transport Authority. It is a different matter whether the order was justified on merits. The Appeal Board and the Minister did not consider whether the order of the Regional Transport Authority was justified on the merits of the case but merely held that the order was without jurisdiction.15. The decision of the Appeal Board as well as of the Minister was wrong in holding that the Regional Transport Authority had acted beyond jurisdiction.This Court in Dhani Devi v. Sant Bihar, (1969) 2 SCR 567 = (AIR 1970 SC 759 ) held that in the case of death of an applicant before the final disposal of his application for the grant of permit in respect of his vehicle the Regional Transport Authority has power to substitute the person succeeding to the possession of the vehicles in place of the deceased applicant and to allow the successor to prosecute the application. The ratio of the decision is that as the relief sought for in the application is dependent upon and related to the possession of the vehicles the application is capable of being revived at the instance of the person succeeding to the possession of the vehicles.In the case of death of an applicant for the grant of a stage carriage permit before the grant of a permit the heirs can apply for substitution in place of the original applicant. There is no legal right to the grant of permit. The Regional Transport Authority has jurisdiction and discretion in the matter of allowing or refusing substitution.12. If the proceedings are likely to be delayed or a substitution will be detrimental to the interest of the public, the Regional Transport Authority is not bound to allow substitution. There is jurisdiction to grant or allow or refuse substitution. The Regional Transport Authority will exercise discretion in a judicious manner in the facts and circumstances of each case as to whether a substitution may be allowed.It appears that this Court in the unreported decision in M/s. Ram Autar Lal Jain case, Civil Appeal No. 2606 of 1969, D/= (now reported in AIR 1974 SC 326 ) (supra) found that the absence of possession of a vehicle by the successor of the applicant was a proper exercise of discretion by the authorities on the facts of that case.14.In the present case, the application of the firm for permission to continue the proceedings after the death of Ram Autar Lal Jain was notified in the Gazette. Objections were invited. No objections were filed by any one. The Regional Transport Authority granted the permit in the name of the firm. The Appeal Board held that Regional Transport Authority had no jurisdiction to grant permit in favour of the appellant. The Regional Transport Authority acted within jurisdiction in allowing substitution. There was no jurisdictional error of the Regional Transport Authority. It is a different matter whether the order was justified on merits. The Appeal Board and the Minister did not consider whether the order of the Regional Transport Authority was justified on the merits of the case but merely held that the order was without jurisdiction.15. The decision of the Appeal Board as well as of the Minister was wrong in holding that the Regional Transport Authority had acted beyond jurisdiction.
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State through CBI New Delhi Vs. Jitender Kumar Singh | the Special Judge trying non-PC offences does not arise. As already indicated, trying of a PC offence is a jurisdictional fact to exercise the powers under Sub-section (3) of Section 4. Jurisdiction of the Special Judge, as such, has not been divested, but the exercise of jurisdiction, depends upon the jurisdictional fact of trying a PC offence. We are, therefore, concerned with the exercise of jurisdiction and not the existence of jurisdiction of the Special Judge. 39. The meaning and content of the expression “jurisdictional fact” has been considered by this Court in Carona Ltd. v. Parvathy Swaminathan & Sons (2007) 8 SCC 559 , and noticed that where the jurisdiction of a Court or a Tribunal is dependent on the existence of a particular state of affairs, that state of affairs may be described as preliminary to, or collective to the merits of the issue. Existence of a jurisdictional fact is thus a sine qua non or condition precedent to the assumption of jurisdiction by a Court. In Ramesh Chandra Sankla v. Vikram Cement & Ors. (2008) 14 SCC 58 , this Court held that by erroneously assuming existence of the jurisdictional fact, a Court cannot confer upon itself jurisdiction which otherwise it does not possess. 40. We have already indicated that the jurisdictional fact so as to try non-PC offences is “trying any case” under the PC Act. As noticed by this Court in Ratilal Bhanji Mithani v. State of Maharashtra (1979) 2 SCC 179 , the trial of a warrant case starts with the framing of charge. Prior to that the proceedings are only an inquiry. The Court held as follows:- “Once a charge is framed, the Magistrate has no power under Section 227 or any other provision of the Code to cancel the charge, and reverse the proceedings to the stage of Section 253 and discharge the accused. The trial in a warrant case starts with the framing of charge; prior to it, the proceedings are only an inquiry. After the framing of the charge if the accused pleads not guilty, the Magistrate is required to proceed with the trial in the manner provided in Sections 254 to 258 to a logical end. Once a charge is framed in a warrant case, instituted either on complaint or a police report, the Magistrate has no power under the Code to discharge the accused, and thereafter, he can either acquit or convict the accused unless he decides to proceed under Section 349 and 562 of the Code of 1898 (which correspond to Sections 325 and 360 of the Code of 1973).” 41. We may now examine whether, in both these appeals, the above test has been satisfied. First, we may deal with Criminal Appeal No. 943 of 2008. CBI, in this appeal, as already indicated, submitted the charge-sheet on 1.11.2001 for the offences against A-1, who is a public servant, as well as against non-public servants. Learned Special Judge had, on 25.3.2003, framed the charges against the accused persons under Section 120B read Sections with 467, 471 and 420 IPC and also under Sections 13(1)(d) and 13(2) of the PC Act and substantive offences under Sections 420, 467 and 471 IPC and also substantive offences under Sections 13(1)(d) and 13(2) of the PC Act against the public servants. Therefore, charges have been framed against the public servants as well as non-public servants after hearing the prosecution and defence counsel, by the special Judge on 25.3.2003 in respect of PC offences as well as non-PC offences. As already indicated, under sub-section (3) of Section 4, when trying any case, a Special Judge may also try any offence other than the offence specified in Section 3 and be charged in the same trial. The Special Judge, in the instant case, has framed charges against the public servant as well as against the non-public servant for offences punishable under Section 3(1) of PC Act as well as for the offences punishable under Section 120B read with Sections 467, 471 and 420 IPC and, therefore, the existence of jurisdictional fact that is “trying a case” under the PC Act has been satisfied. 42. The Special Judge after framing the charge for PC and non-PC offences posted the case for examination of prosecution witnesses, thereafter the sole public servant died on 2.6.2003. Before that, the Special Judge, in the instant case, has also exercised his powers under sub-section (3) of Section 4 of the PC Act and hence cannot be divested with the jurisdiction to proceed against the non-public servant, even if the sole public servant dies after framing of the charges. On death, the charge against the public servant alone abates and since the special Judge has already exercised his jurisdiction under sub-section (3) of Section 4 of the PC Act, that jurisdiction cannot be divested due to the death of the sole public servant.43. We can visualize a situation where a public servant dies at the fag end of the trial, by that time, several witnesses might have been examined and to hold that the entire trial would be vitiated due to death of a sole public servant would defeat the entire object and purpose of the PC Act, which is enacted for effective combating of corruption and to expedite cases related to corruption and bribery. The purpose of the PC Act is to make anti-corruption laws more effective in order to expedite the proceedings, provisions for day-to-day trial of cases, transparency with regard to grant of stay and exercise of powers of revision on interlocutory orders have also been provided under the PC Act. Consequently, once the power has been exercised by the Special Judge under sub-section (3) of Section 4 of the PC Act to proceed against non-PC offences along with PC offences, the mere fact that the sole public servant dies after the exercise of powers under sub-section (3) of Section 4, will not divest the jurisdiction of the Special Judge or vitiate the proceedings pending before him. | 1[ds]28. Thus, the scheme of the PC Act makes it quite clear that even a private person who is involved in an offence mentioned in Section 3(1) of the PC Act, is required to be tried only by a Special Judge, and by no other Court. Moreover, it is not necessary that in every offence under the PC Act, a public servant must necessarily be an accused. In other words, the existence of a public servant for facing the trial before the Special Court is not a must and even in his absence, private persons can be tried for PC as well as non-PC offences, depending upon the facts of the case.29. We, therefore, make it clear that it is not the law that only along with the junction of a public servant in array of parties, the Special Judge can proceed against private persons who have committed offences punishable under the PC Act.In other words, an accused person, either a public servant or non-public servant, who has been charged for an offence under Section 3(1) of the PC Act, could also be charged for an offence under IPC, in the event of which, the Special Judge has got the jurisdiction to try such offences against the public servant as well as against a non-public servant. The legal position is also settled by the Judgment of this Court in Vivek Gupta v. CBI and another (2003) 8 SCC 628 , wherein this Court held that a public servant who is charged of an offence under the provisions of the PC Act may also be charged by the Special Judge at the same trial of any offence under IPC if the same is committed in a manner contemplated under Section 220 of the Code. This Court also held, even if a non-public servant, though charged only of offences under Section 420 and Section 120B read with Section 420 IPC, he could also be tried by the Special Judge with the aid of sub-section (3) of Section 4 of the PC Act. We fully endorse that view.35. We are, however, in Criminal Appeal No.161 of 2011, concerned with a situation where no charge has been framed against the public servant, while he was alive, under Section 3(1) nor any charge was framed against a private person for any offence under Section 3(1) of the PC Act. The Special Judge, therefore, had no occasion tounder Section 3(1) of the PC Act, either against a public servant or a private person, so as to try any offence other than an offence specified in Section 3, meaning thereby, non-PC offences against private person, like the appellant.36. The Special Judge appointed under Section 3(1) could exercise the powers under sub-section (3) to Section 4 to try non-PC offence. Therefore, trying a case by a Special Judge under Section 3(1) is a sine-qua-non for exercising jurisdiction by the Special Judge for trying any offence, other than an offence specified in Section 3.under Section 3(1) is, therefore, a jurisdictional fact for the Special Judge to exercise powers to try any offence other than an offence specified in Section 3.37. Exclusion of the jurisdiction of ordinary Criminal Court, so far as offences under the PC Act are concerned, has been explicitly expressed under Section 4(1) of the PC Act, which does not find a place in respect of non-PC offences in sub-section (3) of Section 4 of the PC Act. Further, it is not obligatory on the part of a Special Judge to try non-PC offences. The expressiongives an element of discretion on the part of the Special Judge which will depend upon the facts of each case and the inter-relation between PC offences and non-PC offences.38. A Special Judge exercising powers under the PC Act is not expected to try non-PC offences totally unconnected with any PC offences under Section 3(1) of the PC Act and in the event of a Special Judge not trying any offence under Section 3(1) of the PC Act, the question of the Special Judge trying non-PC offences does not arise. As already indicated, trying of a PC offence is a jurisdictional fact to exercise the powers under Sub-section (3) of Section 4. Jurisdiction of the Special Judge, as such, has not been divested, but the exercise of jurisdiction, depends upon the jurisdictional fact of trying a PC offence. We are, therefore, concerned with the exercise of jurisdiction and not the existence of jurisdiction of the Special Judge.The Special Judge after framing the charge for PC and non-PC offences posted the case for examination of prosecution witnesses, thereafter the sole public servant died on 2.6.2003. Before that, the Special Judge, in the instant case, has also exercised his powers under sub-section (3) of Section 4 of the PC Act and hence cannot be divested with the jurisdiction to proceed against the non-public servant, even if the sole public servant dies after framing of the charges. On death, the charge against the public servant alone abates and since the special Judge has already exercised his jurisdiction under sub-section (3) of Section 4 of the PC Act, that jurisdiction cannot be divested due to the death of the sole public servant.43. We can visualize a situation where a public servant dies at the fag end of the trial, by that time, several witnesses might have been examined and to hold that the entire trial would be vitiated due to death of a sole public servant would defeat the entire object and purpose of the PC Act, which is enacted for effective combating of corruption and to expedite cases related to corruption and bribery. The purpose of the PC Act is to make anti-corruption laws more effective in order to expedite the proceedings, provisions for day-to-day trial of cases, transparency with regard to grant of stay and exercise of powers of revision on interlocutory orders have also been provided under the PC Act. Consequently, once the power has been exercised by the Special Judge under sub-section (3) of Section 4 of the PC Act to proceed against non-PC offences along with PC offences, the mere fact that the sole public servant dies after the exercise of powers under sub-section (3) of Section 4, will not divest the jurisdiction of the Special Judge or vitiate the proceedings pending before him.We may now examine Criminal Appeal No. 161 of 2011, where the FIR was registered on 2.7.1996 and the charge-sheet was filed before the Special Judge on 14.9.2001 for the offences under Sections 120B, 420, IPC read with Sections 13(2) and 13(1) of the PC Act. Accused 9 and 10 died even before the charge-sheet was sent to the Special Judge. The charge against the sole public servant under the PC Act could also not be framed since he died on 18.2.2005. The Special Judge also could not frame any charge against non-public servants. As already indicated, under sub-section (3) of Section 4, the special Judge could try non-PC offences only whenrelating to PC offences. In the instant case, no PC offence has been committed by any of the non-public servants so as to fall under Section 3(1) of the PC Act. Consequently, there was no occasion for the special Judge to try any case relating to offences under the PC Act against the Appellant. The trying of any case under the PC Act against a public servant or a non-public servant, as already indicated, is a sine-qua-non for exercising powers under sub-section (3) of Section 4 of PC Act. In the instant case, since no PC offence has been committed by any of the non-public servants and no charges have been framed against the public servant, while he was alive, the Special Judge had no occasion to try any case against any of them under the PC Act, since no charge has been framed prior to the death of the public servant. The jurisdictional fact, as already discussed above, does not exist so far as this appeal is concerned, so as to exercise jurisdiction by the Special Judge to deal with non-PC | 1 | 7,985 | 1,527 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
the Special Judge trying non-PC offences does not arise. As already indicated, trying of a PC offence is a jurisdictional fact to exercise the powers under Sub-section (3) of Section 4. Jurisdiction of the Special Judge, as such, has not been divested, but the exercise of jurisdiction, depends upon the jurisdictional fact of trying a PC offence. We are, therefore, concerned with the exercise of jurisdiction and not the existence of jurisdiction of the Special Judge. 39. The meaning and content of the expression “jurisdictional fact” has been considered by this Court in Carona Ltd. v. Parvathy Swaminathan & Sons (2007) 8 SCC 559 , and noticed that where the jurisdiction of a Court or a Tribunal is dependent on the existence of a particular state of affairs, that state of affairs may be described as preliminary to, or collective to the merits of the issue. Existence of a jurisdictional fact is thus a sine qua non or condition precedent to the assumption of jurisdiction by a Court. In Ramesh Chandra Sankla v. Vikram Cement & Ors. (2008) 14 SCC 58 , this Court held that by erroneously assuming existence of the jurisdictional fact, a Court cannot confer upon itself jurisdiction which otherwise it does not possess. 40. We have already indicated that the jurisdictional fact so as to try non-PC offences is “trying any case” under the PC Act. As noticed by this Court in Ratilal Bhanji Mithani v. State of Maharashtra (1979) 2 SCC 179 , the trial of a warrant case starts with the framing of charge. Prior to that the proceedings are only an inquiry. The Court held as follows:- “Once a charge is framed, the Magistrate has no power under Section 227 or any other provision of the Code to cancel the charge, and reverse the proceedings to the stage of Section 253 and discharge the accused. The trial in a warrant case starts with the framing of charge; prior to it, the proceedings are only an inquiry. After the framing of the charge if the accused pleads not guilty, the Magistrate is required to proceed with the trial in the manner provided in Sections 254 to 258 to a logical end. Once a charge is framed in a warrant case, instituted either on complaint or a police report, the Magistrate has no power under the Code to discharge the accused, and thereafter, he can either acquit or convict the accused unless he decides to proceed under Section 349 and 562 of the Code of 1898 (which correspond to Sections 325 and 360 of the Code of 1973).” 41. We may now examine whether, in both these appeals, the above test has been satisfied. First, we may deal with Criminal Appeal No. 943 of 2008. CBI, in this appeal, as already indicated, submitted the charge-sheet on 1.11.2001 for the offences against A-1, who is a public servant, as well as against non-public servants. Learned Special Judge had, on 25.3.2003, framed the charges against the accused persons under Section 120B read Sections with 467, 471 and 420 IPC and also under Sections 13(1)(d) and 13(2) of the PC Act and substantive offences under Sections 420, 467 and 471 IPC and also substantive offences under Sections 13(1)(d) and 13(2) of the PC Act against the public servants. Therefore, charges have been framed against the public servants as well as non-public servants after hearing the prosecution and defence counsel, by the special Judge on 25.3.2003 in respect of PC offences as well as non-PC offences. As already indicated, under sub-section (3) of Section 4, when trying any case, a Special Judge may also try any offence other than the offence specified in Section 3 and be charged in the same trial. The Special Judge, in the instant case, has framed charges against the public servant as well as against the non-public servant for offences punishable under Section 3(1) of PC Act as well as for the offences punishable under Section 120B read with Sections 467, 471 and 420 IPC and, therefore, the existence of jurisdictional fact that is “trying a case” under the PC Act has been satisfied. 42. The Special Judge after framing the charge for PC and non-PC offences posted the case for examination of prosecution witnesses, thereafter the sole public servant died on 2.6.2003. Before that, the Special Judge, in the instant case, has also exercised his powers under sub-section (3) of Section 4 of the PC Act and hence cannot be divested with the jurisdiction to proceed against the non-public servant, even if the sole public servant dies after framing of the charges. On death, the charge against the public servant alone abates and since the special Judge has already exercised his jurisdiction under sub-section (3) of Section 4 of the PC Act, that jurisdiction cannot be divested due to the death of the sole public servant.43. We can visualize a situation where a public servant dies at the fag end of the trial, by that time, several witnesses might have been examined and to hold that the entire trial would be vitiated due to death of a sole public servant would defeat the entire object and purpose of the PC Act, which is enacted for effective combating of corruption and to expedite cases related to corruption and bribery. The purpose of the PC Act is to make anti-corruption laws more effective in order to expedite the proceedings, provisions for day-to-day trial of cases, transparency with regard to grant of stay and exercise of powers of revision on interlocutory orders have also been provided under the PC Act. Consequently, once the power has been exercised by the Special Judge under sub-section (3) of Section 4 of the PC Act to proceed against non-PC offences along with PC offences, the mere fact that the sole public servant dies after the exercise of powers under sub-section (3) of Section 4, will not divest the jurisdiction of the Special Judge or vitiate the proceedings pending before him.
### Response:
1
### Explanation:
We are, however, in Criminal Appeal No.161 of 2011, concerned with a situation where no charge has been framed against the public servant, while he was alive, under Section 3(1) nor any charge was framed against a private person for any offence under Section 3(1) of the PC Act. The Special Judge, therefore, had no occasion tounder Section 3(1) of the PC Act, either against a public servant or a private person, so as to try any offence other than an offence specified in Section 3, meaning thereby, non-PC offences against private person, like the appellant.36. The Special Judge appointed under Section 3(1) could exercise the powers under sub-section (3) to Section 4 to try non-PC offence. Therefore, trying a case by a Special Judge under Section 3(1) is a sine-qua-non for exercising jurisdiction by the Special Judge for trying any offence, other than an offence specified in Section 3.under Section 3(1) is, therefore, a jurisdictional fact for the Special Judge to exercise powers to try any offence other than an offence specified in Section 3.37. Exclusion of the jurisdiction of ordinary Criminal Court, so far as offences under the PC Act are concerned, has been explicitly expressed under Section 4(1) of the PC Act, which does not find a place in respect of non-PC offences in sub-section (3) of Section 4 of the PC Act. Further, it is not obligatory on the part of a Special Judge to try non-PC offences. The expressiongives an element of discretion on the part of the Special Judge which will depend upon the facts of each case and the inter-relation between PC offences and non-PC offences.38. A Special Judge exercising powers under the PC Act is not expected to try non-PC offences totally unconnected with any PC offences under Section 3(1) of the PC Act and in the event of a Special Judge not trying any offence under Section 3(1) of the PC Act, the question of the Special Judge trying non-PC offences does not arise. As already indicated, trying of a PC offence is a jurisdictional fact to exercise the powers under Sub-section (3) of Section 4. Jurisdiction of the Special Judge, as such, has not been divested, but the exercise of jurisdiction, depends upon the jurisdictional fact of trying a PC offence. We are, therefore, concerned with the exercise of jurisdiction and not the existence of jurisdiction of the Special Judge.The Special Judge after framing the charge for PC and non-PC offences posted the case for examination of prosecution witnesses, thereafter the sole public servant died on 2.6.2003. Before that, the Special Judge, in the instant case, has also exercised his powers under sub-section (3) of Section 4 of the PC Act and hence cannot be divested with the jurisdiction to proceed against the non-public servant, even if the sole public servant dies after framing of the charges. On death, the charge against the public servant alone abates and since the special Judge has already exercised his jurisdiction under sub-section (3) of Section 4 of the PC Act, that jurisdiction cannot be divested due to the death of the sole public servant.43. We can visualize a situation where a public servant dies at the fag end of the trial, by that time, several witnesses might have been examined and to hold that the entire trial would be vitiated due to death of a sole public servant would defeat the entire object and purpose of the PC Act, which is enacted for effective combating of corruption and to expedite cases related to corruption and bribery. The purpose of the PC Act is to make anti-corruption laws more effective in order to expedite the proceedings, provisions for day-to-day trial of cases, transparency with regard to grant of stay and exercise of powers of revision on interlocutory orders have also been provided under the PC Act. Consequently, once the power has been exercised by the Special Judge under sub-section (3) of Section 4 of the PC Act to proceed against non-PC offences along with PC offences, the mere fact that the sole public servant dies after the exercise of powers under sub-section (3) of Section 4, will not divest the jurisdiction of the Special Judge or vitiate the proceedings pending before him.We may now examine Criminal Appeal No. 161 of 2011, where the FIR was registered on 2.7.1996 and the charge-sheet was filed before the Special Judge on 14.9.2001 for the offences under Sections 120B, 420, IPC read with Sections 13(2) and 13(1) of the PC Act. Accused 9 and 10 died even before the charge-sheet was sent to the Special Judge. The charge against the sole public servant under the PC Act could also not be framed since he died on 18.2.2005. The Special Judge also could not frame any charge against non-public servants. As already indicated, under sub-section (3) of Section 4, the special Judge could try non-PC offences only whenrelating to PC offences. In the instant case, no PC offence has been committed by any of the non-public servants so as to fall under Section 3(1) of the PC Act. Consequently, there was no occasion for the special Judge to try any case relating to offences under the PC Act against the Appellant. The trying of any case under the PC Act against a public servant or a non-public servant, as already indicated, is a sine-qua-non for exercising powers under sub-section (3) of Section 4 of PC Act. In the instant case, since no PC offence has been committed by any of the non-public servants and no charges have been framed against the public servant, while he was alive, the Special Judge had no occasion to try any case against any of them under the PC Act, since no charge has been framed prior to the death of the public servant. The jurisdictional fact, as already discussed above, does not exist so far as this appeal is concerned, so as to exercise jurisdiction by the Special Judge to deal with non-PC
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Nathia Agarwalla & Another Vs. Musst. Jahanara Begum & Others | execution of a decree for ejectment passed by a competent civil Court. Although this sub-section takes away the right of ejectment in other ways, if any, it recognises that ejectment is possible provided there is a decree of a competent civil Court.8. We may now consider the first subsection. Certain matters appear on its face. The sub-section does not speak of an ejectment decree, but of the right of the landlord to eject his tenant. It begins by stating "notwithstanding anything in any contract or in any law for the time being in force" but it does not include decrees for ejectment already obtained, in the non-obstante clause. Such decrees could have easily been named, to include them within the protective provisions, but they were not. The operative parts of the sub-section protect tenants under two circumstances which are mentioned as (a) and (b). Taking (b) first: if the tenant effects improvements on the land which he is not entitled to effect, the landlord may not eject him unless he pays reasonable compensation. Who will assess the compensation is laid down in S. 6 but that section specifically mentions a suit for ejectment and not execution proceeding. All this seems to suggest that S. 5 (1)(b) is intended to operate on rights of the landlord which are being enforced by a suit but not on rights already enforced and determined. By speaking of the curtailment of the landlords right and by omitting to provide for decrees into which the rights merge and by mentioning the provisions of S 6 are to be invoked in a suit for ejectment, it appears that the decrees as such are not put under the same embargo.9. So far there is nothing in S. 5 which would suggest that its provisions cover decrees in which the rights had passed before the coming into force of the Act. It remains to see whether S. 5 (1) (a) strikes a different note. Part (a) of S. 5 (1) is constructed on very similar lines and does not admit a different approach. It protects tenants of land from ejectment by the landlord in those cases in which the tenant entitled to build on the land under his contract has actually built a permanent structure within five years from the date of his contract, or has without such right built with the knowledge and acquiescence of the landlord. Such tenant may not be ejected except for non-payment of rent.Clause (a) applies alike to contracts made before or after the commencement of the Act. This creates some doubt but as it intends to operate on the rights of the landlord seeking to enforce them against a tenant who claims that he cannot be ejected, the clause must again contemplate a suit and not execution proceedings. There is nothing to distinguish Cl. (a) from Cl. (b) in so far as execution of decrees already granted is concerned.10. The decision of the Assam High Court in AIR 1960 Assam 24 (supra) expressed the same conclusion but on a slightly different reasoning. The conclusion is further strengthened when one reads the cognate sections of the earlier Assam Acts passed by the same Legislature. Section 14 of the Sylhet Non-Agricultural Urban Areas Tenancy Act, 1947 (Assam Act X of 1947) now repealed by the Act we are considering, provided in clear terms that proceedings in execution were included. It reads as follows :"14. Pending suits.The provisions of this Act shall have effect in respect of all suits or proceedings in execution, for ejectment of a person, who would under the provisions of this Act be an occupancy tenant, which are pending at the date of commencement of this Act."11. Similarly, S. 6 (1) of the Assam Urban Areas Rent Control Act, 1949 (Assam Act XIII of 1949) and S. 6 (1) of the Assam Urban Areas Rent Control Act, 1946 (Assam Act III of 1946) provided specially for execution proceedings. These two sections read the same and only one of them may be read. Section 6 (1) of Act XIII of 1949 read :"6. Bar against passing and execution of decree and orders(1) No order or decree for the recovery of possession of any house shall be made or executed by any Court so long as the tenant pays rent to the full extent allowable under this Act and perform the conditions of the tenancy:Provided that nothing in this sub-section shall apply in a suit or proceedings for eviction of the tenant from the house -(a) where the tenant has done any act contrary to the provisions of Cl. (m), Cl. (o) or Cl. (p) of S. 108 of the Transfer of Property Act, 1882 or to the spirit of the aforesaid clauses in areas where the Act does not apply, or(b) where the tenant has been guilty of conduct which is a nuisance or an annoyance to the occupiers of the adjoining or neighbouring houses, or(c) where the house is bona fide required by the landlord either for purposes of repairs or re-building, or for his own occupation or for the occupation of any person for whose benefit the house is held, or where the landlord can show any other cause which may be deemed satisfactory by the Court or(d) where the tenant sublets the house or any part thereof or otherwise transfers his interest in the house or any part thereof without permission in writing from the landlord.* * * *"* * * *"12. These enactments, which are quite explicit show, that where the Assam Legislature wished it, it included execution proceedings within the protection. Being aware that if execution proceedings are to be included they need to be mentioned and having at hand the former sections as models, the departure appears to be deliberate. The language chosen places the right under an embargo but does not say that decrees already won would become unexecutable thus stating, clearly that they were not to he affected. The decision under appeal was, therefore, right13. | 0[ds]These enactments, which are quite explicit show, that where the Assam Legislature wished it, it included execution proceedings within the protection. Being aware that if execution proceedings are to be included they need to be mentioned and having at hand the former sections as models, the departure appears to be deliberate. The language chosen places the right under an embargo but does not say that decrees already won would become unexecutable thus stating, clearly that they were not to he affected. The decision under appeal was, therefore, right | 0 | 2,704 | 102 | ### 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:
execution of a decree for ejectment passed by a competent civil Court. Although this sub-section takes away the right of ejectment in other ways, if any, it recognises that ejectment is possible provided there is a decree of a competent civil Court.8. We may now consider the first subsection. Certain matters appear on its face. The sub-section does not speak of an ejectment decree, but of the right of the landlord to eject his tenant. It begins by stating "notwithstanding anything in any contract or in any law for the time being in force" but it does not include decrees for ejectment already obtained, in the non-obstante clause. Such decrees could have easily been named, to include them within the protective provisions, but they were not. The operative parts of the sub-section protect tenants under two circumstances which are mentioned as (a) and (b). Taking (b) first: if the tenant effects improvements on the land which he is not entitled to effect, the landlord may not eject him unless he pays reasonable compensation. Who will assess the compensation is laid down in S. 6 but that section specifically mentions a suit for ejectment and not execution proceeding. All this seems to suggest that S. 5 (1)(b) is intended to operate on rights of the landlord which are being enforced by a suit but not on rights already enforced and determined. By speaking of the curtailment of the landlords right and by omitting to provide for decrees into which the rights merge and by mentioning the provisions of S 6 are to be invoked in a suit for ejectment, it appears that the decrees as such are not put under the same embargo.9. So far there is nothing in S. 5 which would suggest that its provisions cover decrees in which the rights had passed before the coming into force of the Act. It remains to see whether S. 5 (1) (a) strikes a different note. Part (a) of S. 5 (1) is constructed on very similar lines and does not admit a different approach. It protects tenants of land from ejectment by the landlord in those cases in which the tenant entitled to build on the land under his contract has actually built a permanent structure within five years from the date of his contract, or has without such right built with the knowledge and acquiescence of the landlord. Such tenant may not be ejected except for non-payment of rent.Clause (a) applies alike to contracts made before or after the commencement of the Act. This creates some doubt but as it intends to operate on the rights of the landlord seeking to enforce them against a tenant who claims that he cannot be ejected, the clause must again contemplate a suit and not execution proceedings. There is nothing to distinguish Cl. (a) from Cl. (b) in so far as execution of decrees already granted is concerned.10. The decision of the Assam High Court in AIR 1960 Assam 24 (supra) expressed the same conclusion but on a slightly different reasoning. The conclusion is further strengthened when one reads the cognate sections of the earlier Assam Acts passed by the same Legislature. Section 14 of the Sylhet Non-Agricultural Urban Areas Tenancy Act, 1947 (Assam Act X of 1947) now repealed by the Act we are considering, provided in clear terms that proceedings in execution were included. It reads as follows :"14. Pending suits.The provisions of this Act shall have effect in respect of all suits or proceedings in execution, for ejectment of a person, who would under the provisions of this Act be an occupancy tenant, which are pending at the date of commencement of this Act."11. Similarly, S. 6 (1) of the Assam Urban Areas Rent Control Act, 1949 (Assam Act XIII of 1949) and S. 6 (1) of the Assam Urban Areas Rent Control Act, 1946 (Assam Act III of 1946) provided specially for execution proceedings. These two sections read the same and only one of them may be read. Section 6 (1) of Act XIII of 1949 read :"6. Bar against passing and execution of decree and orders(1) No order or decree for the recovery of possession of any house shall be made or executed by any Court so long as the tenant pays rent to the full extent allowable under this Act and perform the conditions of the tenancy:Provided that nothing in this sub-section shall apply in a suit or proceedings for eviction of the tenant from the house -(a) where the tenant has done any act contrary to the provisions of Cl. (m), Cl. (o) or Cl. (p) of S. 108 of the Transfer of Property Act, 1882 or to the spirit of the aforesaid clauses in areas where the Act does not apply, or(b) where the tenant has been guilty of conduct which is a nuisance or an annoyance to the occupiers of the adjoining or neighbouring houses, or(c) where the house is bona fide required by the landlord either for purposes of repairs or re-building, or for his own occupation or for the occupation of any person for whose benefit the house is held, or where the landlord can show any other cause which may be deemed satisfactory by the Court or(d) where the tenant sublets the house or any part thereof or otherwise transfers his interest in the house or any part thereof without permission in writing from the landlord.* * * *"* * * *"12. These enactments, which are quite explicit show, that where the Assam Legislature wished it, it included execution proceedings within the protection. Being aware that if execution proceedings are to be included they need to be mentioned and having at hand the former sections as models, the departure appears to be deliberate. The language chosen places the right under an embargo but does not say that decrees already won would become unexecutable thus stating, clearly that they were not to he affected. The decision under appeal was, therefore, right13.
### Response:
0
### Explanation:
These enactments, which are quite explicit show, that where the Assam Legislature wished it, it included execution proceedings within the protection. Being aware that if execution proceedings are to be included they need to be mentioned and having at hand the former sections as models, the departure appears to be deliberate. The language chosen places the right under an embargo but does not say that decrees already won would become unexecutable thus stating, clearly that they were not to he affected. The decision under appeal was, therefore, right
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Commnr. Of Central Excise, Meerut Vs. M/S. Motherson Sumi Systems Ltd. | M/s. Motherson Sumi Systems Ltd., respondent No.1 herein (hereinafter referred to as the respondent) is a manufacturer of wiring harnesses. The manufacture is carried out according to specific orders of automotive and air conditioning industry, against specific contracts. In some cases the appellant received certain component parts of wiring harness, free of charge, from their buyers. These components were also incorporated in the wiring harness. In such cases, the value of the free supply component parts were not added to the price of wiring harnesses while fixing their assessable value and paying excise duty on them. Appellant searched the premises of the respondent and came to know that the respondent was not paying duty on the free supplies received by it from their buyers and thus suppressed the information with the intention to evade payment of duty.2. Consequently, a show cause notice was issued proposing to demand duty of Rs.96,01,561/- for the period from March, 1995 to January, 1997 on clearance of wiring harness by the respondent. The show cause notice also sought to invoke the extended period of limitation under Section 11A of the Central Excise & Salt Act, 1944. Reply to show cause notice was also filed.3. By his order dated 27th February, 2001, Commissioner confirmed the demanded duty and also imposed a penalty of the same amount and further penalty of Rs.5 lacs and Rs.7 lacs on the Managing Director and DGM (Marketing) of the respondents company.4. Aggrieved by the aforesaid order of the Commissioner, respondents filed appeal before the Tribunal. The point on merits was not gone into by the Tribunal but on the point of limitation the case was decided in favour of the assessee. 5. Counsel for the parties state that on merits the issue involved in the present case is concluded against the revenue and in favour of the assessee by a judgment of this Court in the case of International Auto Ltd. v. Commissioner of Central Excise, Bihar reported in 2005 (183) ELT 239(SC). 6. Keeping in view the facts and circumstances of the case and especially in view of the fact that the point on merits is concluded against the revenue and in favour of the assessee by a judgment of this court in the case of International Auto Ltd.(supra), we dismiss these appeals filed by the revenue without going into the question of limitation. | 0[ds]6. Keeping in view the facts and circumstances of the case and especially in view of the fact that the point on merits is concluded against the revenue and in favour of the assessee by a judgment of this court in the case of International Auto Ltd.(supra), we dismiss these appeals filed by the revenue without going into the question of limitation. | 0 | 437 | 72 | ### 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:
M/s. Motherson Sumi Systems Ltd., respondent No.1 herein (hereinafter referred to as the respondent) is a manufacturer of wiring harnesses. The manufacture is carried out according to specific orders of automotive and air conditioning industry, against specific contracts. In some cases the appellant received certain component parts of wiring harness, free of charge, from their buyers. These components were also incorporated in the wiring harness. In such cases, the value of the free supply component parts were not added to the price of wiring harnesses while fixing their assessable value and paying excise duty on them. Appellant searched the premises of the respondent and came to know that the respondent was not paying duty on the free supplies received by it from their buyers and thus suppressed the information with the intention to evade payment of duty.2. Consequently, a show cause notice was issued proposing to demand duty of Rs.96,01,561/- for the period from March, 1995 to January, 1997 on clearance of wiring harness by the respondent. The show cause notice also sought to invoke the extended period of limitation under Section 11A of the Central Excise & Salt Act, 1944. Reply to show cause notice was also filed.3. By his order dated 27th February, 2001, Commissioner confirmed the demanded duty and also imposed a penalty of the same amount and further penalty of Rs.5 lacs and Rs.7 lacs on the Managing Director and DGM (Marketing) of the respondents company.4. Aggrieved by the aforesaid order of the Commissioner, respondents filed appeal before the Tribunal. The point on merits was not gone into by the Tribunal but on the point of limitation the case was decided in favour of the assessee. 5. Counsel for the parties state that on merits the issue involved in the present case is concluded against the revenue and in favour of the assessee by a judgment of this Court in the case of International Auto Ltd. v. Commissioner of Central Excise, Bihar reported in 2005 (183) ELT 239(SC). 6. Keeping in view the facts and circumstances of the case and especially in view of the fact that the point on merits is concluded against the revenue and in favour of the assessee by a judgment of this court in the case of International Auto Ltd.(supra), we dismiss these appeals filed by the revenue without going into the question of limitation.
### Response:
0
### Explanation:
6. Keeping in view the facts and circumstances of the case and especially in view of the fact that the point on merits is concluded against the revenue and in favour of the assessee by a judgment of this court in the case of International Auto Ltd.(supra), we dismiss these appeals filed by the revenue without going into the question of limitation.
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MASTER AYUSH Vs. THE BRANCH MANAGER, RELIANCE GENERAL INSURANCE CO. LTD. & ANR | loss into monetary terms. There has to be a measure of calculated guesswork and conjecture. An assessment, as best as can, in the circumstances, should be made. xxx xxx xxx 27. One factor which must be kept in mind while assessing the compensation in a case like the present one is that the claim can be awarded only once. The claimant cannot come back to court for enhancement of award at a later stage praying that something extra has been spent. Therefore, the courts or the Tribunals assessing the compensation in a case of 100% disability, especially where there is mental disability also, should take a liberal view of the matter when awarding the compensation. While awarding this amount, we are not only taking the physical disability but also the mental disability and various other factors. This child will remain bedridden for life. Her mental age will be that of a nine-month-old child. Effectively, while her body grows, she will remain a small baby. We are dealing with a girl who will physically become a woman but will mentally remain a 9-month-old child. This girl will miss out playing with her friends. She cannot communicate; she cannot enjoy the pleasures of life; she cannot even be amused by watching cartoons or films; she will miss out the fun of childhood, the excitement of youth; the pleasures of a marital life; she cannot have children who she can love, let alone grandchildren. She will have no pleasure. Hers is a vegetable existence. Therefore, we feel in the peculiar facts and circumstances of the case even after taking a very conservative view of the matter an amount payable for the pain and suffering of this child should be at least Rs 15,00,000. 7. The High Court had assessed, in the aforesaid case, the notional income of the victim as Rs.15,000/- p.a. which was not found to be justified by this Court. It was observed that the girl would be entitled to minimum wages payable to a skilled workman. The appellant was from the State of Haryana. The minimum wages in that State on the date of accident were Rs.4846/- per month. In the present appeal, the minimum wages for 2010-11 in the State of Karnataka for employments not covered under any of the scheduled employments can be ascertained from the following extract of notification for minimum wages published in the Gazette on 19.02.2007: 24.Employment not covered in any of the Scheduled Employments Notification No. KAE 79 LMW 2005 dated 17.03.2006 Published in Gazette dated 19.02.2007 Cost of Living Allowance to be paid over and above 2703 points Cost of Living Index: 3944-2703=1241 points Minimum wages and VDA from 01-04-2010 to 31-03-2011 S C H E D U L E Sl. No. Class of Employment Minimum rates of wages payable for different zones Basic VDA Total 1 2 3 4 5 1 Highly Skilled 2691.80 1116.90 3808.70 2 Skilled 2591.80 1116.90 3708.70 3 Semi-Skilled 2041.80 1116.90 3158.70 4 Unskilled 1891.80 1116.90 3008.70 VDA: All Categories of employees: 3 paise per point per day over and above 2703 points. 8. Hence, as per the above extract, the minimum wages payable to a skilled workman in 2010-11 is to the tune of Rs. 3708.70. In this view, the minimum wages as on the date of accident is rounded off to Rs.3700/-. The compensation, therefore, is to be assessed on the basis of the said minimum wages on the assumption that the appellant would have been able to earn after attaining majority. 9. In addition to the skilled minimum wages, the appellant would be also entitled to 40% for future prospects in view of the judgment of this Court in National Insurance Company Limited v. Pranay Sethi & Ors (2017) 16 SCC 680 . 10. Thus, the compensation works out to be Rs.3700/- plus 40%, which amounts to Rs.5180/- per month. The multiplier of 18 would be applicable in view of the age of the appellant. The loss of future earnings due to the Permanent Disability for life thus works out to be Rs.11,18,880/-, i.e., (3700+1480=5180) x 12 x 18. 11. As per the medical certificate produced by the appellant, with Advanced Reciprocating Gait Orthosis (ARGO) with bilateral elbow crutches, the appellant can perform independent ambulation. Therefore, the condition of the appellant is not entirely comparable to Kajal who was confined to bed with mental age of 9 months old child. The appellant herein is not able to move his both legs and had complete sensory loss in the legs, urinary incontinence and bowel constipation and bed sore. 12. The determination of damages in personal injury cases is not easy. The mental and physical loss cannot be computed in terms of money but there is no other way to compensate the victim except by payment of just compensation. Therefore, we find that in view of the physical condition, the appellant is entitled to one attendant for the rest of his life though he may be able to walk with the help of assistant device. The device also requires to be replaced every 5 years. Therefore, it is reasonable to award cost of 2 devices i.e., Rs.10 lakhs. The appellant has not only lost his childhood but also adult life. Therefore, loss of marriage prospects would also be required to be awarded. The learned Tribunal has rejected the claim of taxi expenses for the reason that the taxi driver has not been produced. It is impossible to produce the numerous taxi drivers. Still further, the Tribunal should have realized the condition of the child who had complete sensory loss in the legs. Therefore, if the parents of the child have taken him in a taxi, probably that was the only option available to them. Accordingly, we award a sum of Rs.2 lakhs as conveyance charges. 13. No compensation is warranted to be payable under the heading food and nourishment or towards loss of childhood as it stands subsumed in the compensation assessed under the other different heads. | 1[ds]5. PW-1- Krishna Sapalya is the father of the appellant who was working as Secretary, Gram Panchayat. The learned Tribunal has observed that the father has not placed any material to show his occupation or income. We do not agree with such finding of the Tribunal as once he has stated that he is a Secretary of Gram Panchayat, he has disclosed his occupation. As a Secretary of Gram Panchayat, he is a government servant.This Court had recognized that Schedule II of the Act could be used as a guide for the multiplier to be applied in each case. This Court in the aforesaid case held as under:6. It is impossible to equate human suffering and personal deprivation with money. However, this is what the Act enjoins upon the courts to do. The court has to make a judicious attempt to award damages, so as to compensate the claimant for the loss suffered by the victim. On the one hand, the compensation should not be assessed very conservatively, but on the other hand, the compensation should also not be assessed in so liberal a fashion so as to make it a bounty to the claimant. The court while assessing the compensation should have regard to the degree of deprivation and the loss caused by such deprivation. Such compensation is what is termed as just compensation. The compensation or damages assessed for personal injuries should be substantial to compensate the injured for the deprivation suffered by the injured throughout his/her life. They should not be just token damages.xxx xxx xxx12. The assessment of damages in personal injury cases raises great difficulties. It is not easy to convert the physical and mental loss into monetary terms. There has to be a measure of calculated guesswork and conjecture. An assessment, as best as can, in the circumstances, should be made.xxx xxx xxx27. One factor which must be kept in mind while assessing the compensation in a case like the present one is that the claim can be awarded only once. The claimant cannot come back to court for enhancement of award at a later stage praying that something extra has been spent. Therefore, the courts or the Tribunals assessing the compensation in a case of 100% disability, especially where there is mental disability also, should take a liberal view of the matter when awarding the compensation. While awarding this amount, we are not only taking the physical disability but also the mental disability and various other factors. This child will remain bedridden for life. Her mental age will be that of a nine-month-old child. Effectively, while her body grows, she will remain a small baby. We are dealing with a girl who will physically become a woman but will mentally remain a 9-month-old child. This girl will miss out playing with her friends. She cannot communicate; she cannot enjoy the pleasures of life; she cannot even be amused by watching cartoons or films; she will miss out the fun of childhood, the excitement of youth; the pleasures of a marital life; she cannot have children who she can love, let alone grandchildren. She will have no pleasure. Hers is a vegetable existence. Therefore, we feel in the peculiar facts and circumstances of the case even after taking a very conservative view of the matter an amount payable for the pain and suffering of this child should be at least Rs 15,00,000.7. The High Court had assessed, in the aforesaid case, the notional income of the victim as Rs.15,000/- p.a. which was not found to be justified by this Court. It was observed that the girl would be entitled to minimum wages payable to a skilled workman. The appellant was from the State of Haryana. The minimum wages in that State on the date of accident were Rs.4846/- per month.8. Hence, as per the above extract, the minimum wages payable to a skilled workman in 2010-11 is to the tune of Rs. 3708.70. In this view, the minimum wages as on the date of accident is rounded off to Rs.3700/-. The compensation, therefore, is to be assessed on the basis of the said minimum wages on the assumption that the appellant would have been able to earn after attaining majority.9. In addition to the skilled minimum wages, the appellant would be also entitled to 40% for future prospects in view of the judgment of this Court in National Insurance Company Limited v. Pranay Sethi & Ors (2017) 16 SCC 680 .10. Thus, the compensation works out to be Rs.3700/- plus 40%, which amounts to Rs.5180/- per month. The multiplier of 18 would be applicable in view of the age of the appellant. The loss of future earnings due to the Permanent Disability for life thus works out to be Rs.11,18,880/-, i.e., (3700+1480=5180) x 12 x 18.11. As per the medical certificate produced by the appellant, with Advanced Reciprocating Gait Orthosis (ARGO) with bilateral elbow crutches, the appellant can perform independent ambulation. Therefore, the condition of the appellant is not entirely comparable to Kajal who was confined to bed with mental age of 9 months old child. The appellant herein is not able to move his both legs and had complete sensory loss in the legs, urinary incontinence and bowel constipation and bed sore.12. The determination of damages in personal injury cases is not easy. The mental and physical loss cannot be computed in terms of money but there is no other way to compensate the victim except by payment of just compensation. Therefore, we find that in view of the physical condition, the appellant is entitled to one attendant for the rest of his life though he may be able to walk with the help of assistant device. The device also requires to be replaced every 5 years. Therefore, it is reasonable to award cost of 2 devices i.e., Rs.10 lakhs. The appellant has not only lost his childhood but also adult life. Therefore, loss of marriage prospects would also be required to be awarded. The learned Tribunal has rejected the claim of taxi expenses for the reason that the taxi driver has not been produced. It is impossible to produce the numerous taxi drivers. Still further, the Tribunal should have realized the condition of the child who had complete sensory loss in the legs. Therefore, if the parents of the child have taken him in a taxi, probably that was the only option available to them. Accordingly, we award a sum of Rs.2 lakhs as conveyance charges.13. No compensation is warranted to be payable under the heading food and nourishment or towardsas it stands subsumed in the compensation assessed under the other different heads. | 1 | 2,336 | 1,240 | ### 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:
loss into monetary terms. There has to be a measure of calculated guesswork and conjecture. An assessment, as best as can, in the circumstances, should be made. xxx xxx xxx 27. One factor which must be kept in mind while assessing the compensation in a case like the present one is that the claim can be awarded only once. The claimant cannot come back to court for enhancement of award at a later stage praying that something extra has been spent. Therefore, the courts or the Tribunals assessing the compensation in a case of 100% disability, especially where there is mental disability also, should take a liberal view of the matter when awarding the compensation. While awarding this amount, we are not only taking the physical disability but also the mental disability and various other factors. This child will remain bedridden for life. Her mental age will be that of a nine-month-old child. Effectively, while her body grows, she will remain a small baby. We are dealing with a girl who will physically become a woman but will mentally remain a 9-month-old child. This girl will miss out playing with her friends. She cannot communicate; she cannot enjoy the pleasures of life; she cannot even be amused by watching cartoons or films; she will miss out the fun of childhood, the excitement of youth; the pleasures of a marital life; she cannot have children who she can love, let alone grandchildren. She will have no pleasure. Hers is a vegetable existence. Therefore, we feel in the peculiar facts and circumstances of the case even after taking a very conservative view of the matter an amount payable for the pain and suffering of this child should be at least Rs 15,00,000. 7. The High Court had assessed, in the aforesaid case, the notional income of the victim as Rs.15,000/- p.a. which was not found to be justified by this Court. It was observed that the girl would be entitled to minimum wages payable to a skilled workman. The appellant was from the State of Haryana. The minimum wages in that State on the date of accident were Rs.4846/- per month. In the present appeal, the minimum wages for 2010-11 in the State of Karnataka for employments not covered under any of the scheduled employments can be ascertained from the following extract of notification for minimum wages published in the Gazette on 19.02.2007: 24.Employment not covered in any of the Scheduled Employments Notification No. KAE 79 LMW 2005 dated 17.03.2006 Published in Gazette dated 19.02.2007 Cost of Living Allowance to be paid over and above 2703 points Cost of Living Index: 3944-2703=1241 points Minimum wages and VDA from 01-04-2010 to 31-03-2011 S C H E D U L E Sl. No. Class of Employment Minimum rates of wages payable for different zones Basic VDA Total 1 2 3 4 5 1 Highly Skilled 2691.80 1116.90 3808.70 2 Skilled 2591.80 1116.90 3708.70 3 Semi-Skilled 2041.80 1116.90 3158.70 4 Unskilled 1891.80 1116.90 3008.70 VDA: All Categories of employees: 3 paise per point per day over and above 2703 points. 8. Hence, as per the above extract, the minimum wages payable to a skilled workman in 2010-11 is to the tune of Rs. 3708.70. In this view, the minimum wages as on the date of accident is rounded off to Rs.3700/-. The compensation, therefore, is to be assessed on the basis of the said minimum wages on the assumption that the appellant would have been able to earn after attaining majority. 9. In addition to the skilled minimum wages, the appellant would be also entitled to 40% for future prospects in view of the judgment of this Court in National Insurance Company Limited v. Pranay Sethi & Ors (2017) 16 SCC 680 . 10. Thus, the compensation works out to be Rs.3700/- plus 40%, which amounts to Rs.5180/- per month. The multiplier of 18 would be applicable in view of the age of the appellant. The loss of future earnings due to the Permanent Disability for life thus works out to be Rs.11,18,880/-, i.e., (3700+1480=5180) x 12 x 18. 11. As per the medical certificate produced by the appellant, with Advanced Reciprocating Gait Orthosis (ARGO) with bilateral elbow crutches, the appellant can perform independent ambulation. Therefore, the condition of the appellant is not entirely comparable to Kajal who was confined to bed with mental age of 9 months old child. The appellant herein is not able to move his both legs and had complete sensory loss in the legs, urinary incontinence and bowel constipation and bed sore. 12. The determination of damages in personal injury cases is not easy. The mental and physical loss cannot be computed in terms of money but there is no other way to compensate the victim except by payment of just compensation. Therefore, we find that in view of the physical condition, the appellant is entitled to one attendant for the rest of his life though he may be able to walk with the help of assistant device. The device also requires to be replaced every 5 years. Therefore, it is reasonable to award cost of 2 devices i.e., Rs.10 lakhs. The appellant has not only lost his childhood but also adult life. Therefore, loss of marriage prospects would also be required to be awarded. The learned Tribunal has rejected the claim of taxi expenses for the reason that the taxi driver has not been produced. It is impossible to produce the numerous taxi drivers. Still further, the Tribunal should have realized the condition of the child who had complete sensory loss in the legs. Therefore, if the parents of the child have taken him in a taxi, probably that was the only option available to them. Accordingly, we award a sum of Rs.2 lakhs as conveyance charges. 13. No compensation is warranted to be payable under the heading food and nourishment or towards loss of childhood as it stands subsumed in the compensation assessed under the other different heads.
### Response:
1
### Explanation:
to equate human suffering and personal deprivation with money. However, this is what the Act enjoins upon the courts to do. The court has to make a judicious attempt to award damages, so as to compensate the claimant for the loss suffered by the victim. On the one hand, the compensation should not be assessed very conservatively, but on the other hand, the compensation should also not be assessed in so liberal a fashion so as to make it a bounty to the claimant. The court while assessing the compensation should have regard to the degree of deprivation and the loss caused by such deprivation. Such compensation is what is termed as just compensation. The compensation or damages assessed for personal injuries should be substantial to compensate the injured for the deprivation suffered by the injured throughout his/her life. They should not be just token damages.xxx xxx xxx12. The assessment of damages in personal injury cases raises great difficulties. It is not easy to convert the physical and mental loss into monetary terms. There has to be a measure of calculated guesswork and conjecture. An assessment, as best as can, in the circumstances, should be made.xxx xxx xxx27. One factor which must be kept in mind while assessing the compensation in a case like the present one is that the claim can be awarded only once. The claimant cannot come back to court for enhancement of award at a later stage praying that something extra has been spent. Therefore, the courts or the Tribunals assessing the compensation in a case of 100% disability, especially where there is mental disability also, should take a liberal view of the matter when awarding the compensation. While awarding this amount, we are not only taking the physical disability but also the mental disability and various other factors. This child will remain bedridden for life. Her mental age will be that of a nine-month-old child. Effectively, while her body grows, she will remain a small baby. We are dealing with a girl who will physically become a woman but will mentally remain a 9-month-old child. This girl will miss out playing with her friends. She cannot communicate; she cannot enjoy the pleasures of life; she cannot even be amused by watching cartoons or films; she will miss out the fun of childhood, the excitement of youth; the pleasures of a marital life; she cannot have children who she can love, let alone grandchildren. She will have no pleasure. Hers is a vegetable existence. Therefore, we feel in the peculiar facts and circumstances of the case even after taking a very conservative view of the matter an amount payable for the pain and suffering of this child should be at least Rs 15,00,000.7. The High Court had assessed, in the aforesaid case, the notional income of the victim as Rs.15,000/- p.a. which was not found to be justified by this Court. It was observed that the girl would be entitled to minimum wages payable to a skilled workman. The appellant was from the State of Haryana. The minimum wages in that State on the date of accident were Rs.4846/- per month.8. Hence, as per the above extract, the minimum wages payable to a skilled workman in 2010-11 is to the tune of Rs. 3708.70. In this view, the minimum wages as on the date of accident is rounded off to Rs.3700/-. The compensation, therefore, is to be assessed on the basis of the said minimum wages on the assumption that the appellant would have been able to earn after attaining majority.9. In addition to the skilled minimum wages, the appellant would be also entitled to 40% for future prospects in view of the judgment of this Court in National Insurance Company Limited v. Pranay Sethi & Ors (2017) 16 SCC 680 .10. Thus, the compensation works out to be Rs.3700/- plus 40%, which amounts to Rs.5180/- per month. The multiplier of 18 would be applicable in view of the age of the appellant. The loss of future earnings due to the Permanent Disability for life thus works out to be Rs.11,18,880/-, i.e., (3700+1480=5180) x 12 x 18.11. As per the medical certificate produced by the appellant, with Advanced Reciprocating Gait Orthosis (ARGO) with bilateral elbow crutches, the appellant can perform independent ambulation. Therefore, the condition of the appellant is not entirely comparable to Kajal who was confined to bed with mental age of 9 months old child. The appellant herein is not able to move his both legs and had complete sensory loss in the legs, urinary incontinence and bowel constipation and bed sore.12. The determination of damages in personal injury cases is not easy. The mental and physical loss cannot be computed in terms of money but there is no other way to compensate the victim except by payment of just compensation. Therefore, we find that in view of the physical condition, the appellant is entitled to one attendant for the rest of his life though he may be able to walk with the help of assistant device. The device also requires to be replaced every 5 years. Therefore, it is reasonable to award cost of 2 devices i.e., Rs.10 lakhs. The appellant has not only lost his childhood but also adult life. Therefore, loss of marriage prospects would also be required to be awarded. The learned Tribunal has rejected the claim of taxi expenses for the reason that the taxi driver has not been produced. It is impossible to produce the numerous taxi drivers. Still further, the Tribunal should have realized the condition of the child who had complete sensory loss in the legs. Therefore, if the parents of the child have taken him in a taxi, probably that was the only option available to them. Accordingly, we award a sum of Rs.2 lakhs as conveyance charges.13. No compensation is warranted to be payable under the heading food and nourishment or towardsas it stands subsumed in the compensation assessed under the other different heads.
|
Signode India Limited Vs. Commr.Of Cen.Excise & Customs-Ii | Court in respect of the lis decided by the Bangalore Bench of the learned Tribunal.5. To appreciate the issues arising in the present case, Section 65(23) which defines "cargo handling service"; Section 65(105)(zr) which deals with the "taxable service rendered by a cargo handling agency"; Section 65 (76b) which defines "packaging activity" and Section 65(105)(zzzf) which makes "service rendered in connection with packaging activity" exigible to the service needs to be extracted below :-"Section 65-In this Chapter, unless the context otherwise requires:-(23) "cargo handling service" means loading, unloading, packing or unpacking of cargo and includes cargo handling services provided for freight in special containers or for non-containerised freight, services provided by a container freight terminal or any other freight terminal, for all modes of transport and cargo handling service incidental to freight, but does not include handling of export cargo or passenger baggage or mere transportation of goods;(76b) "packaging activity" means packaging of goods including pouch filling, bottling, labelling or imprinting of the package, but does not include any packaging activity that amounts to "manufacture" within the meaning of clause (f) of Section 2 of the Central Excise Act, 1944.Section 105 - "taxable service" means any service provided or to be provided:-(zr) to any person, by a cargo handling agency in relation to cargo handling services;(zzzf) to any person, by any other person, in relation to packaging activity."6. Sections 65(76b) and 65(105)(zzzf) were both inserted by the Finance Act, 2005 with effect from 16.06.2005. The above amendment, to our mind, is sufficiently indicative of legislative intent that packaging activity is different from cargo handling activity. A view, which would make the appellant liable to tax for the pre-amended period (prior to 16.06.2005) on the basis that the activity undertaken by it involves rendering of cargo handling service would run counter to the expressed legislative intention in a situation where its liability, for the post amendment period, on the basis that the appellant is engaged in "packaging activity" has not been disputed by the Revenue.7. At this stage notice must also be had of the fact that there is no dispute on the fact that the liability sought to be fastened on the appellant is on account of the activity undertaken by the appellant in the manufacturing unit of the principal manufacturer, namely, Tata Refractories Limited. It is also not in dispute that such activity is prior to the goods leaving the factory gate and the charges paid to the appellant for rendering the service forms a part of the assessable value of the manufactured goods of the principal manufacturer, namely, Tata Refractories Limited. In such a situation, we will really have to discern what is the distinction between the two expressions "Cargo Handling Service" and "Packaging Activity", as defined in the respective provisions of the Act.8. A careful reading of Section 65(23) of the Act, which defines Cargo Handling Service would go to show that though the word packing is included therein, the same is referable to the word "Cargo" whereas in Section 65(76b) "Packing Activity" is defined to mean "Packaging of Goods".9. The distinction between the two expressions, namely, "cargo" and "goods" in the two different provisions of the Act becomes evident if cargo is understood to denote goods which are ready for transportation whereas packaging of goods is a stage prior i.e. before they became cargo and in fact on completion of such packaging the goods become cargo. The position becomes more clear if the dictionary meaning of the word "cargo" is taken into account, as set out below:As per Black Law Dictionary, the word "cargo" means "Goods transported by a vessel, airplane, or vehicle; According to Oxford Dictionary of English, "cargo" means goods carried on a ship, aircraft, or motorvehicle and as per Websters Comprehensive Dictionary, "cargo" is Goods and merchandise taken on board a vessel.10. Admittedly, the appellant has nothing to do with the transportation of goods which it packs within the factory unit of the principal manufacturer prior to the goods leaving the factory.11. There is yet another aspect of the case which would require a mention. In a Circular bearing F.No.B.11/1/2002-TRU dated 01.08.2002 issued by the Central Board of Excise and Customs, services liable to tax under the category of "cargo handling services", has been clarified to mean services provided by cargo handling agencies which is, in effect what Section 105(zr) provides for.12. Clause 3 of the circular is in the following terms:"3. The services which are liable to tax under this category are the services provided by cargo handling agencies who undertake the activity of packing, unpacking, loading and unloading of goods meant to be transported by any means of transportation namely truck, rail, ship or aircraft. Well known examples of cargo handling service or services provided in relation to cargo handling by the Container Corporation of India, Airport Authority of India, Inland Container Depot, Container Freight Stations. This is only an illustrative list. There are several other firms that are engaged in the business of cargo handling services."Clause 3, extracted above, makes the position abundantly clear that even the department had understood services provided by Cargo handling agencies undertaking the activities of packing, unpacking, loading and unloading of goods meant to be transported by any means of transportation, namely truck, rail, ship or aircraft as services liable to tax as "cargo handling services".13. Clause 3.2 of the circular makes it clear that mere transportation of goods is not covered in the category of cargo handling. Clause 15 of the circular also makes it clear that an individual undertaking the activity of loading or unloading the cargo would not be liable to pay service tax on such activity as being an activity undertaken by a cargo handling agency.14. It is nobodys case before us that the appellant is a cargo handling agency. All activity undertaken by the appellant, though related to packing activity, is at a stage when the goods are yet to clear the factory gate as manufactured goods for onward transportation. | 1[ds]6. Sections 65(76b) and 65(105)(zzzf) were both inserted by the Finance Act, 2005 with effect from 16.06.2005. The above amendment, to our mind, is sufficiently indicative of legislative intent that packaging activity is different from cargo handling activity. A view, which would make the appellant liable to tax for the pre-amended period (prior to 16.06.2005) on the basis that the activity undertaken by it involves rendering of cargo handling service would run counter to the expressed legislative intention in a situation where its liability, for the post amendment period, on the basis that the appellant is engaged in "packaging activity" has not been disputed by the Revenue.7. At this stage notice must also be had of the fact that there is no dispute on the fact that the liability sought to be fastened on the appellant is on account of the activity undertaken by the appellant in the manufacturing unit of the principal manufacturer, namely, Tata Refractories Limited. It is also not in dispute that such activity is prior to the goods leaving the factory gate and the charges paid to the appellant for rendering the service forms a part of the assessable value of the manufactured goods of the principal manufacturer, namely, Tata Refractories Limited. In such a situation, we will really have to discern what is the distinction between the two expressions "Cargo Handling Service" and "Packaging Activity", as defined in the respective provisions of the Act.8. A careful reading of Section 65(23) of the Act, which defines Cargo Handling Service would go to show that though the word packing is included therein, the same is referable to the word "Cargo" whereas in Section 65(76b) "Packing Activity" is defined to mean "Packaging of Goods".Admittedly, the appellant has nothing to do with the transportation of goods which it packs within the factory unit of the principal manufacturer prior to the goods leaving the factory.11. There is yet another aspect of the case which would require a mention. In a Circular bearing F.No.B.11/1/2002-TRU dated 01.08.2002 issued by the Central Board of Excise and Customs, services liable to tax under the category of "cargo handling services", has been clarified to mean services provided by cargo handling agencies which is, in effect what Section 105(zr) provides for.Clause 3.2 of the circular makes it clear that mere transportation of goods is not covered in the category of cargo handling. Clause 15 of the circular also makes it clear that an individual undertaking the activity of loading or unloading the cargo would not be liable to pay service tax on such activity as being an activity undertaken by a cargo handling agency.14. It is nobodys case before us that the appellant is a cargo handling agency. All activity undertaken by the appellant, though related to packing activity, is at a stage when the goods are yet to clear the factory gate as manufactured goods for onward transportation. | 1 | 1,472 | 555 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
Court in respect of the lis decided by the Bangalore Bench of the learned Tribunal.5. To appreciate the issues arising in the present case, Section 65(23) which defines "cargo handling service"; Section 65(105)(zr) which deals with the "taxable service rendered by a cargo handling agency"; Section 65 (76b) which defines "packaging activity" and Section 65(105)(zzzf) which makes "service rendered in connection with packaging activity" exigible to the service needs to be extracted below :-"Section 65-In this Chapter, unless the context otherwise requires:-(23) "cargo handling service" means loading, unloading, packing or unpacking of cargo and includes cargo handling services provided for freight in special containers or for non-containerised freight, services provided by a container freight terminal or any other freight terminal, for all modes of transport and cargo handling service incidental to freight, but does not include handling of export cargo or passenger baggage or mere transportation of goods;(76b) "packaging activity" means packaging of goods including pouch filling, bottling, labelling or imprinting of the package, but does not include any packaging activity that amounts to "manufacture" within the meaning of clause (f) of Section 2 of the Central Excise Act, 1944.Section 105 - "taxable service" means any service provided or to be provided:-(zr) to any person, by a cargo handling agency in relation to cargo handling services;(zzzf) to any person, by any other person, in relation to packaging activity."6. Sections 65(76b) and 65(105)(zzzf) were both inserted by the Finance Act, 2005 with effect from 16.06.2005. The above amendment, to our mind, is sufficiently indicative of legislative intent that packaging activity is different from cargo handling activity. A view, which would make the appellant liable to tax for the pre-amended period (prior to 16.06.2005) on the basis that the activity undertaken by it involves rendering of cargo handling service would run counter to the expressed legislative intention in a situation where its liability, for the post amendment period, on the basis that the appellant is engaged in "packaging activity" has not been disputed by the Revenue.7. At this stage notice must also be had of the fact that there is no dispute on the fact that the liability sought to be fastened on the appellant is on account of the activity undertaken by the appellant in the manufacturing unit of the principal manufacturer, namely, Tata Refractories Limited. It is also not in dispute that such activity is prior to the goods leaving the factory gate and the charges paid to the appellant for rendering the service forms a part of the assessable value of the manufactured goods of the principal manufacturer, namely, Tata Refractories Limited. In such a situation, we will really have to discern what is the distinction between the two expressions "Cargo Handling Service" and "Packaging Activity", as defined in the respective provisions of the Act.8. A careful reading of Section 65(23) of the Act, which defines Cargo Handling Service would go to show that though the word packing is included therein, the same is referable to the word "Cargo" whereas in Section 65(76b) "Packing Activity" is defined to mean "Packaging of Goods".9. The distinction between the two expressions, namely, "cargo" and "goods" in the two different provisions of the Act becomes evident if cargo is understood to denote goods which are ready for transportation whereas packaging of goods is a stage prior i.e. before they became cargo and in fact on completion of such packaging the goods become cargo. The position becomes more clear if the dictionary meaning of the word "cargo" is taken into account, as set out below:As per Black Law Dictionary, the word "cargo" means "Goods transported by a vessel, airplane, or vehicle; According to Oxford Dictionary of English, "cargo" means goods carried on a ship, aircraft, or motorvehicle and as per Websters Comprehensive Dictionary, "cargo" is Goods and merchandise taken on board a vessel.10. Admittedly, the appellant has nothing to do with the transportation of goods which it packs within the factory unit of the principal manufacturer prior to the goods leaving the factory.11. There is yet another aspect of the case which would require a mention. In a Circular bearing F.No.B.11/1/2002-TRU dated 01.08.2002 issued by the Central Board of Excise and Customs, services liable to tax under the category of "cargo handling services", has been clarified to mean services provided by cargo handling agencies which is, in effect what Section 105(zr) provides for.12. Clause 3 of the circular is in the following terms:"3. The services which are liable to tax under this category are the services provided by cargo handling agencies who undertake the activity of packing, unpacking, loading and unloading of goods meant to be transported by any means of transportation namely truck, rail, ship or aircraft. Well known examples of cargo handling service or services provided in relation to cargo handling by the Container Corporation of India, Airport Authority of India, Inland Container Depot, Container Freight Stations. This is only an illustrative list. There are several other firms that are engaged in the business of cargo handling services."Clause 3, extracted above, makes the position abundantly clear that even the department had understood services provided by Cargo handling agencies undertaking the activities of packing, unpacking, loading and unloading of goods meant to be transported by any means of transportation, namely truck, rail, ship or aircraft as services liable to tax as "cargo handling services".13. Clause 3.2 of the circular makes it clear that mere transportation of goods is not covered in the category of cargo handling. Clause 15 of the circular also makes it clear that an individual undertaking the activity of loading or unloading the cargo would not be liable to pay service tax on such activity as being an activity undertaken by a cargo handling agency.14. It is nobodys case before us that the appellant is a cargo handling agency. All activity undertaken by the appellant, though related to packing activity, is at a stage when the goods are yet to clear the factory gate as manufactured goods for onward transportation.
### Response:
1
### Explanation:
6. Sections 65(76b) and 65(105)(zzzf) were both inserted by the Finance Act, 2005 with effect from 16.06.2005. The above amendment, to our mind, is sufficiently indicative of legislative intent that packaging activity is different from cargo handling activity. A view, which would make the appellant liable to tax for the pre-amended period (prior to 16.06.2005) on the basis that the activity undertaken by it involves rendering of cargo handling service would run counter to the expressed legislative intention in a situation where its liability, for the post amendment period, on the basis that the appellant is engaged in "packaging activity" has not been disputed by the Revenue.7. At this stage notice must also be had of the fact that there is no dispute on the fact that the liability sought to be fastened on the appellant is on account of the activity undertaken by the appellant in the manufacturing unit of the principal manufacturer, namely, Tata Refractories Limited. It is also not in dispute that such activity is prior to the goods leaving the factory gate and the charges paid to the appellant for rendering the service forms a part of the assessable value of the manufactured goods of the principal manufacturer, namely, Tata Refractories Limited. In such a situation, we will really have to discern what is the distinction between the two expressions "Cargo Handling Service" and "Packaging Activity", as defined in the respective provisions of the Act.8. A careful reading of Section 65(23) of the Act, which defines Cargo Handling Service would go to show that though the word packing is included therein, the same is referable to the word "Cargo" whereas in Section 65(76b) "Packing Activity" is defined to mean "Packaging of Goods".Admittedly, the appellant has nothing to do with the transportation of goods which it packs within the factory unit of the principal manufacturer prior to the goods leaving the factory.11. There is yet another aspect of the case which would require a mention. In a Circular bearing F.No.B.11/1/2002-TRU dated 01.08.2002 issued by the Central Board of Excise and Customs, services liable to tax under the category of "cargo handling services", has been clarified to mean services provided by cargo handling agencies which is, in effect what Section 105(zr) provides for.Clause 3.2 of the circular makes it clear that mere transportation of goods is not covered in the category of cargo handling. Clause 15 of the circular also makes it clear that an individual undertaking the activity of loading or unloading the cargo would not be liable to pay service tax on such activity as being an activity undertaken by a cargo handling agency.14. It is nobodys case before us that the appellant is a cargo handling agency. All activity undertaken by the appellant, though related to packing activity, is at a stage when the goods are yet to clear the factory gate as manufactured goods for onward transportation.
|
Reva Investment Pvt.Ltd Vs. Commnr.Of Gift Tax,Gujarat-Ii | section lays down that "subject to the other provisions contained in the Act, there shall be charged for every assessment year commencing on and from the 1st day of April, 1958, a tax referred to as gift tax in respect of gifts made by a person during the previous year at the rate or rates specified in Schedule I. (Emphasis supplied). 9. Section 4 makes provisions for gifts to include some transfer Sub-section (1) clause (a), which is relevant for the purpose of the cse, reads as under : "4(1) For the purpose of this Act -(a) where property is transferred otherwise than for adequate consideration, the amount by which the [value of the property as on the date of the transfer and determined in the manner laid down in Schedule II] exceeds the value of the consideration shall be deemed to be a gift made by the transferor.[Provided that nothing contained in this clause shall apply in any case where the property is transferred to the Government or where the value of the consideration for the transfer is determined or approved by the Central Government or the Reserve Bank of India]" 10. Ordinarily, a gift is a transfer of property without consideration, but for the purpose of the Act a transfer for inadequate consideration is to be deemed to be a gift under section 4(1)(a). By the inclusive definition in Section 2(xii) of the Act a `deemed gift is also a gift. The provision of deemed gift in section 4(1)(a) is intended to bring within the purview of the tax such transactions which are entered between the parties to evade the tax. 11. The question which arises for determination in this case is whether the transaction made by the assessee can be said to be a `deemed gift under Section 4(1)(a) of the Act. For invoking the deeming provisions of section 4(1)(a) of the Act inquiries have to be made regarding - (i) the existence of a `transfer of property (ii) the extent of consideration given i.e. whether the consideration is adequate. It is necessary for the assessing officer to show that the property has been transferred otherwise than for adequate consideration. The finding as to inadequacy of the consideration is the essential sine-qua-non for application of the provisions of `deemed gift. The provision is to be construed in a broad commercial sense and not in a narrow sense. In order to hold that a particular transfer is not for adequate consideration the difference between a true value of the property transferred and the consideration that passed for the same must be appreciated in contest of the facts of the particular case. If the transaction involves transfer of certain property in lieu of certain other property received then the process of evaluation of the two items of property should be similar and on such evaluation if it is found that here is appreciable difference between the value of the two properties then the transaction will be taken as a `deemed gift to the extent as provided in the Section. It is to be found that the transaction was on inadequate consideration and the partied deliberately showed the valuation of the two properties as the same to evade tax. Such a conclusion cannot be drawn merely because according to the assessing officer there is some difference between the valuation of the property transferred and the consideration received.12. In the present case, as noted earlier, the face value of the share of the 12 fully paid subsidiary companies of the assessee was Rs. 5,69,400/- which was taken to be the value of the jewellery that was transferred in exchange by the assessee to the subsidiary companies. The subsidiary companies had not other asset. The value of the jewellery as determined by the assessing officer being Rs. 13,91,350/- the real value of the shares may be said to be Rs. 13,91,350/-, but there was thus not gift involved in the transaction for whatever is the value of the jewellery is infact the value of the shares transferred in consideration. In the circumstances the assessing officer committed an error in treating the transaction between the parties as a `deemed gift.13. At this stage we may notice a few decision of different High Courts to which our attention was drawn. In the case of Biresar Sarkar v. Gift Tax Officer, 1997(223) ITR 404 (Cal)] the High Court allowed the writ petition and quashed the notice under section 16 of the Act, inter alia, on the ground that as far as the question of inadequacy of the consideration is concerned no answer could be given by the respondent authorities as to the adoption of different standards for the purpose of evaluating the value of the assets transferred and for evaluation the consideration received.14. The Madras High Court in the case of C.G.T. v. Indo Traders and Agencies (Madras) P. Ltd., 1981(131) ITR 313 (Mad)] observed that the provision is designed to check evasion of tax by persons transferring properties for inadequate consideration; If a person had effected a gift which would be without consideration, he would be liable to be taxed under the Act; the same person may, in order to avoid the tax, transfer properties for a paltry consideration so as to get out of the operation of the Act then he can be made liable under section 4(1)(a). It is this attempt at evasion which was sought to be thwarted by enacting Section 4(1)(a).15. A similar view was taken by the Kerala High Court in the case of Commissioner of Income-Tax v. Jacobs (P) ltd., 19999(237) ITR 433.16. The High Court of Madras in the case of Commissioner of Gift-Tax v. D. Surendranath Reddy, 1998(233) ITR 21 observed that adequate consideration is not necessarily, what is ultimately determined by some-one else as market value; unless the price was such as to shock the conscience of the court, it would not be possible to hold that the transaction is otherwise than for adequate consideration. | 1[ds]e question which arises for determination in this case is whether the transaction made by the assessee can be said to be a `deemed gift under Section 4(1)(a) of the Act.For invoking the deeming provisions of section 4(1)(a) of the Act inquiries have to be made regarding - (i) the existence of a `transfer of property (ii) the extent of consideration given i.e. whether the consideration is adequate. It is necessary for the assessing officer to show that the property has been transferred otherwise than for adequate consideration. The finding as to inadequacy of the consideration is the essential sine-qua-non for application of the provisions of `deemed gift. The provision is to be construed in a broad commercial sense and not in a narrow sense. In order to hold that a particular transfer is not for adequate consideration the difference between a true value of the property transferred and the consideration that passed for the same must be appreciated in contest of the facts of the particular case. If the transaction involves transfer of certain property in lieu of certain other property received then the process of evaluation of the two items of property should be similar and on such evaluation if it is found that here is appreciable difference between the value of the two properties then the transaction will be taken as a `deemed gift to the extent as provided in the Section. It is to be found that the transaction was on inadequate consideration and the partied deliberately showed the valuation of the two properties as the same to evade tax. Such a conclusion cannot be drawn merely because according to the assessing officer there is some difference between the valuation of the property transferred and the consideration received.12. In the present case, as noted earlier, the face value of the share of the 12 fully paid subsidiary companies of the assessee was Rs. 5,69,400/- which was taken to be the value of the jewellery that was transferred in exchange by the assessee to the subsidiary companies. The subsidiary companies had not other asset. The value of the jewellery as determined by the assessing officer being Rs. 13,91,350/- the real value of the shares may be said to be Rs. 13,91,350/-, but there was thus not gift involved in the transaction for whatever is the value of the jewellery is infact the value of the shares transferred in consideration. In the circumstances the assessing officer committed an error in treating the transaction between the parties as a `deemed gift.13. At this stage we may notice a few decision of different High Courts to which our attention was drawn. In the case of Biresar Sarkar v. Gift Tax Officer, 1997(223) ITR 404 (Cal)] the High Court allowed the writ petition and quashed the notice under section 16 of the Act, inter alia, on the ground that as far as the question of inadequacy of the consideration is concerned no answer could be given by the respondent authorities as to the adoption of different standards for the purpose of evaluating the value of the assets transferred and for evaluation the consideration received.14. The Madras High Court in the case of C.G.T. v. Indo Traders and Agencies (Madras) P. Ltd., 1981(131) ITR 313 (Mad)] observed that the provision is designed to check evasion of tax by persons transferring properties for inadequate consideration; If a person had effected a gift which would be without consideration, he would be liable to be taxed under the Act; the same person may, in order to avoid the tax, transfer properties for a paltry consideration so as to get out of the operation of the Act then he can be made liable under section 4(1)(a). It is this attempt at evasion which was sought to be thwarted by enacting Section 4(1)(a).15. A similar view was taken by the Kerala High Court in the case of Commissioner of Income-Tax v. Jacobs (P) ltd., 19999(237) ITR 433.16. The High Court of Madras in the case of Commissioner of Gift-Tax v. D. Surendranath Reddy, 1998(233) ITR 21 observed that adequate consideration is not necessarily, what is ultimately determined by some-one else as market value; unless the price was such as to shock the conscience of the court, it would not be possible to hold that the transaction is otherwise than for adequate consideration. | 1 | 2,150 | 826 | ### 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:
section lays down that "subject to the other provisions contained in the Act, there shall be charged for every assessment year commencing on and from the 1st day of April, 1958, a tax referred to as gift tax in respect of gifts made by a person during the previous year at the rate or rates specified in Schedule I. (Emphasis supplied). 9. Section 4 makes provisions for gifts to include some transfer Sub-section (1) clause (a), which is relevant for the purpose of the cse, reads as under : "4(1) For the purpose of this Act -(a) where property is transferred otherwise than for adequate consideration, the amount by which the [value of the property as on the date of the transfer and determined in the manner laid down in Schedule II] exceeds the value of the consideration shall be deemed to be a gift made by the transferor.[Provided that nothing contained in this clause shall apply in any case where the property is transferred to the Government or where the value of the consideration for the transfer is determined or approved by the Central Government or the Reserve Bank of India]" 10. Ordinarily, a gift is a transfer of property without consideration, but for the purpose of the Act a transfer for inadequate consideration is to be deemed to be a gift under section 4(1)(a). By the inclusive definition in Section 2(xii) of the Act a `deemed gift is also a gift. The provision of deemed gift in section 4(1)(a) is intended to bring within the purview of the tax such transactions which are entered between the parties to evade the tax. 11. The question which arises for determination in this case is whether the transaction made by the assessee can be said to be a `deemed gift under Section 4(1)(a) of the Act. For invoking the deeming provisions of section 4(1)(a) of the Act inquiries have to be made regarding - (i) the existence of a `transfer of property (ii) the extent of consideration given i.e. whether the consideration is adequate. It is necessary for the assessing officer to show that the property has been transferred otherwise than for adequate consideration. The finding as to inadequacy of the consideration is the essential sine-qua-non for application of the provisions of `deemed gift. The provision is to be construed in a broad commercial sense and not in a narrow sense. In order to hold that a particular transfer is not for adequate consideration the difference between a true value of the property transferred and the consideration that passed for the same must be appreciated in contest of the facts of the particular case. If the transaction involves transfer of certain property in lieu of certain other property received then the process of evaluation of the two items of property should be similar and on such evaluation if it is found that here is appreciable difference between the value of the two properties then the transaction will be taken as a `deemed gift to the extent as provided in the Section. It is to be found that the transaction was on inadequate consideration and the partied deliberately showed the valuation of the two properties as the same to evade tax. Such a conclusion cannot be drawn merely because according to the assessing officer there is some difference between the valuation of the property transferred and the consideration received.12. In the present case, as noted earlier, the face value of the share of the 12 fully paid subsidiary companies of the assessee was Rs. 5,69,400/- which was taken to be the value of the jewellery that was transferred in exchange by the assessee to the subsidiary companies. The subsidiary companies had not other asset. The value of the jewellery as determined by the assessing officer being Rs. 13,91,350/- the real value of the shares may be said to be Rs. 13,91,350/-, but there was thus not gift involved in the transaction for whatever is the value of the jewellery is infact the value of the shares transferred in consideration. In the circumstances the assessing officer committed an error in treating the transaction between the parties as a `deemed gift.13. At this stage we may notice a few decision of different High Courts to which our attention was drawn. In the case of Biresar Sarkar v. Gift Tax Officer, 1997(223) ITR 404 (Cal)] the High Court allowed the writ petition and quashed the notice under section 16 of the Act, inter alia, on the ground that as far as the question of inadequacy of the consideration is concerned no answer could be given by the respondent authorities as to the adoption of different standards for the purpose of evaluating the value of the assets transferred and for evaluation the consideration received.14. The Madras High Court in the case of C.G.T. v. Indo Traders and Agencies (Madras) P. Ltd., 1981(131) ITR 313 (Mad)] observed that the provision is designed to check evasion of tax by persons transferring properties for inadequate consideration; If a person had effected a gift which would be without consideration, he would be liable to be taxed under the Act; the same person may, in order to avoid the tax, transfer properties for a paltry consideration so as to get out of the operation of the Act then he can be made liable under section 4(1)(a). It is this attempt at evasion which was sought to be thwarted by enacting Section 4(1)(a).15. A similar view was taken by the Kerala High Court in the case of Commissioner of Income-Tax v. Jacobs (P) ltd., 19999(237) ITR 433.16. The High Court of Madras in the case of Commissioner of Gift-Tax v. D. Surendranath Reddy, 1998(233) ITR 21 observed that adequate consideration is not necessarily, what is ultimately determined by some-one else as market value; unless the price was such as to shock the conscience of the court, it would not be possible to hold that the transaction is otherwise than for adequate consideration.
### Response:
1
### Explanation:
e question which arises for determination in this case is whether the transaction made by the assessee can be said to be a `deemed gift under Section 4(1)(a) of the Act.For invoking the deeming provisions of section 4(1)(a) of the Act inquiries have to be made regarding - (i) the existence of a `transfer of property (ii) the extent of consideration given i.e. whether the consideration is adequate. It is necessary for the assessing officer to show that the property has been transferred otherwise than for adequate consideration. The finding as to inadequacy of the consideration is the essential sine-qua-non for application of the provisions of `deemed gift. The provision is to be construed in a broad commercial sense and not in a narrow sense. In order to hold that a particular transfer is not for adequate consideration the difference between a true value of the property transferred and the consideration that passed for the same must be appreciated in contest of the facts of the particular case. If the transaction involves transfer of certain property in lieu of certain other property received then the process of evaluation of the two items of property should be similar and on such evaluation if it is found that here is appreciable difference between the value of the two properties then the transaction will be taken as a `deemed gift to the extent as provided in the Section. It is to be found that the transaction was on inadequate consideration and the partied deliberately showed the valuation of the two properties as the same to evade tax. Such a conclusion cannot be drawn merely because according to the assessing officer there is some difference between the valuation of the property transferred and the consideration received.12. In the present case, as noted earlier, the face value of the share of the 12 fully paid subsidiary companies of the assessee was Rs. 5,69,400/- which was taken to be the value of the jewellery that was transferred in exchange by the assessee to the subsidiary companies. The subsidiary companies had not other asset. The value of the jewellery as determined by the assessing officer being Rs. 13,91,350/- the real value of the shares may be said to be Rs. 13,91,350/-, but there was thus not gift involved in the transaction for whatever is the value of the jewellery is infact the value of the shares transferred in consideration. In the circumstances the assessing officer committed an error in treating the transaction between the parties as a `deemed gift.13. At this stage we may notice a few decision of different High Courts to which our attention was drawn. In the case of Biresar Sarkar v. Gift Tax Officer, 1997(223) ITR 404 (Cal)] the High Court allowed the writ petition and quashed the notice under section 16 of the Act, inter alia, on the ground that as far as the question of inadequacy of the consideration is concerned no answer could be given by the respondent authorities as to the adoption of different standards for the purpose of evaluating the value of the assets transferred and for evaluation the consideration received.14. The Madras High Court in the case of C.G.T. v. Indo Traders and Agencies (Madras) P. Ltd., 1981(131) ITR 313 (Mad)] observed that the provision is designed to check evasion of tax by persons transferring properties for inadequate consideration; If a person had effected a gift which would be without consideration, he would be liable to be taxed under the Act; the same person may, in order to avoid the tax, transfer properties for a paltry consideration so as to get out of the operation of the Act then he can be made liable under section 4(1)(a). It is this attempt at evasion which was sought to be thwarted by enacting Section 4(1)(a).15. A similar view was taken by the Kerala High Court in the case of Commissioner of Income-Tax v. Jacobs (P) ltd., 19999(237) ITR 433.16. The High Court of Madras in the case of Commissioner of Gift-Tax v. D. Surendranath Reddy, 1998(233) ITR 21 observed that adequate consideration is not necessarily, what is ultimately determined by some-one else as market value; unless the price was such as to shock the conscience of the court, it would not be possible to hold that the transaction is otherwise than for adequate consideration.
|
Haryana Financial Corporation Vs. Rajesh Gupta | of the opinion that the Division Bench was justified in further concluding that in law the appellants/Corporation undoubtedly has the power to forfeit the earnest money provided there was a failure on the part of the respondent to make the deposit. The Division Bench, however, observed that the respondent was dealing with an instrumentality of state. He was entitled to legitimately proceed on the assumption that the appellants, a Statutory Corporation, an instrumentality of the State, shall act fairly. The respondent could not have suspected that he would be called upon to pay the amount of Rs.50 lakhs without being given even a proper passage to the Unit that he was buying. We are of considered opinion that the respondent had deposited the sum of Rs.2.5 lakhs on the clear understanding that there would be an independent approach road to the Unit. This is understandable. Without any independent passage the plot of land would be not more than an agricultural plot, not suitable for development as a manufacturing unit. We therefore dont find any substance in the submission made by the learned counsel for the appellants/Corporation. 18. In our opinion, the appellants cannot be given the benefit of Clause 5 of the advertisement. The appellants /Corporation cannot be permitted to take advantage of their own wrong. Clause 5 undoubtedly permits the forfeiture of the earnest money deposited. But this can only be, if the auction purchaser fails to comply with the conditions of sale. In our opinion the respondent has not failed to comply with the conditions of sale. Rather, it is the appellants/Corporation which has acted unfairly, and is trying to take advantage of its own wrong. 19. In view of the aforesaid, we are of the considered opinion that the appellants/Corporation cannot be permitted to rely upon Section 55 of The Transfer of Property Act, 1882. The appellants/Corporation failed to disclose to the respondent the material defect about the non-existence of the independent 3 `Karam passage to the property. Therefore, the appellants/ Corporation clearly acted in breach of Section 55 (1) (a) and (b) of The Transfer of Property Act, 1882. The aforesaid Section provides as under: (1) The seller is bound- (a) to disclose to the buyer any material defect in the property [or in the sellers title thereto] of which the seller is, and the buyer is not, aware, and which the buyer could not with ordinary care discover; (b) to produce to the buyer on his request for examination all documents of title relating to the property which are in the sellers possession or power; 20. A mere perusal of the aforesaid provision will show that it was incumbent upon the appellants/Corporation to disclose to the respondent about the non-existence of the independent passage to the Unit. It was also the duty of the appellants/Corporation to inform the respondent that the passage mentioned in the revenue record was not fit for movement of vehicles. The appellant also failed to produce to the buyer the entire documentation as required by Section 51 (1) (b) of the aforesaid Section. We are therefore satisfied that the appellants/Corporation cannot seek to rely on the aforesaid provision of The Transfer of Property Act, 1882. 21. In our opinion, the reliance on Section 29 of the State Financial Corporations Act, 1951 is wholly misplaced. The aforesaid Section pertains to action which the Corporation can take against the Unit which had defaulted in payment of loan. In such circumstances the Corporation has the power to sell the property that has been hypothecated or mortgaged with the Corporation. Respondent herein is an auction purchaser and therefore cannot be confused with the defaulting unit. We are also of the considered opinion that the reliance placed on the judgment of this Court by the counsel for the appellants in the case of Union Bank of India vs. Official Liquidator and Ors. (1994) 1 SCC 575 is wholly misconceived. The aforesaid judgment relates to sale of the property and assets of a company in liquidation by the official liquidator under the orders of the Court. Therefore it is observed that the official liquidator cannot and does not hold any guarantee or warranty in respect of the property sold. That is because the official liquidator proceeds on the basis of what the records of the company in liquidation show. Therefore it is for the intending purchaser to satisfy himself in all respects as to the title and encumbrances and so forth of the immovable property that he proposes to purchase. In those circumstances it is held that the purchaser cannot after having purchased the property on such terms then claim diminution in the price on the ground of defect in the title or description of the property. The judgment clearly goes on to further hold as follows: "The case of the Official Liquidator selling the property of a company in liquidation under the orders of the Court is altogether different from the case of an individual selling immovable property belonging to himself." 22. The aforesaid observation would be clearly applicable to the Corporation as it is exercising the rights of an owner in selling the property. The appellants/Corporation is not selling the property as an official liquidator. 23. In any event, the facts of this case as narrated above would clearly indicate that the respondent had made all necessary inquiries. It was the appellants/Corporation that failed to perform its obligations in giving a fair description of the property offered for sale. Learned counsel had also relied on another judgment in the case of U.T. Chandigarh Administration and Anr. vs. Amarjeet Singh and Ors. (2009) 4 SCC 660. In our opinion, the aforesaid judgment is wholly inapplicable to the facts and circumstances of this case as it relates to the duties of a developer who carries on activities of development of land and invites application for allotment of sites in a developed layout. In our opinion the aforesaid judgment is not applicable to the facts of this case. | 0[ds]18. In our opinion, the appellants cannot be given the benefit of Clause 5 of the advertisement. The appellants /Corporation cannot be permitted to take advantage of their own wrong. Clause 5 undoubtedly permits the forfeiture of the earnest money deposited. But this can only be, if the auction purchaser fails to comply with the conditions of sale. In our opinion the respondent has not failed to comply with the conditions of sale. Rather, it is the appellants/Corporation which has acted unfairly, and is trying to take advantage of its own wrong19. In view of the aforesaid, we are of the considered opinion that the appellants/Corporation cannot be permitted to rely upon Section 55 of The Transfer of Property Act, 1882. The appellants/Corporation failed to disclose to the respondent the material defect about the non-existence of the independent 3 `Karam passage to the property. Therefore, the appellants/ Corporation clearly acted in breach of Section 55 (1) (a) and (b) of The Transfer of Property Act, 188221. In our opinion, the reliance on Section 29 of the State Financial Corporations Act, 1951 is wholly misplaced. The aforesaid Section pertains to action which the Corporation can take against the Unit which had defaulted in payment of loan. In such circumstances the Corporation has the power to sell the property that has been hypothecated or mortgaged with the Corporation. Respondent herein is an auction purchaser and therefore cannot be confused with the defaulting unit. We are also of the considered opinion that the reliance placed on the judgment of this Court by the counsel for the appellants in the case of Union Bank of India vs. Official Liquidator and Ors. (1994) 1 SCC 575 is wholly misconceived. The aforesaid judgment relates to sale of the property and assets of a company in liquidation by the official liquidator under the orders of the Court. Therefore it is observed that the official liquidator cannot and does not hold any guarantee or warranty in respect of the property sold. That is because the official liquidator proceeds on the basis of what the records of the company in liquidation show. Therefore it is for the intending purchaser to satisfy himself in all respects as to the title and encumbrances and so forth of the immovable property that he proposes to purchase. In those circumstances it is held that the purchaser cannot after having purchased the property on such terms then claim diminution in the price on the ground of defect in the title or description of the property22. The aforesaid observation would be clearly applicable to the Corporation as it is exercising the rights of an owner in selling the property. The appellants/Corporation is not selling the property as an official liquidator23. In any event, the facts of this case as narrated above would clearly indicate that the respondent had made all necessary inquiries. It was the appellants/Corporation that failed to perform its obligations in giving a fair description of the property offered for sale. Learned counsel had also relied on another judgment in the case of U.T. Chandigarh Administration and Anr. vs. Amarjeet Singh and Ors. (2009) 4 SCC 660. In our opinion, the aforesaid judgment is wholly inapplicable to the facts and circumstances of this case as it relates to the duties of a developer who carries on activities of development of land and invites application for allotment of sites in a developed layoutIn our opinion the aforesaid judgment is not applicable to the facts of this case. | 0 | 3,768 | 646 | ### 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:
of the opinion that the Division Bench was justified in further concluding that in law the appellants/Corporation undoubtedly has the power to forfeit the earnest money provided there was a failure on the part of the respondent to make the deposit. The Division Bench, however, observed that the respondent was dealing with an instrumentality of state. He was entitled to legitimately proceed on the assumption that the appellants, a Statutory Corporation, an instrumentality of the State, shall act fairly. The respondent could not have suspected that he would be called upon to pay the amount of Rs.50 lakhs without being given even a proper passage to the Unit that he was buying. We are of considered opinion that the respondent had deposited the sum of Rs.2.5 lakhs on the clear understanding that there would be an independent approach road to the Unit. This is understandable. Without any independent passage the plot of land would be not more than an agricultural plot, not suitable for development as a manufacturing unit. We therefore dont find any substance in the submission made by the learned counsel for the appellants/Corporation. 18. In our opinion, the appellants cannot be given the benefit of Clause 5 of the advertisement. The appellants /Corporation cannot be permitted to take advantage of their own wrong. Clause 5 undoubtedly permits the forfeiture of the earnest money deposited. But this can only be, if the auction purchaser fails to comply with the conditions of sale. In our opinion the respondent has not failed to comply with the conditions of sale. Rather, it is the appellants/Corporation which has acted unfairly, and is trying to take advantage of its own wrong. 19. In view of the aforesaid, we are of the considered opinion that the appellants/Corporation cannot be permitted to rely upon Section 55 of The Transfer of Property Act, 1882. The appellants/Corporation failed to disclose to the respondent the material defect about the non-existence of the independent 3 `Karam passage to the property. Therefore, the appellants/ Corporation clearly acted in breach of Section 55 (1) (a) and (b) of The Transfer of Property Act, 1882. The aforesaid Section provides as under: (1) The seller is bound- (a) to disclose to the buyer any material defect in the property [or in the sellers title thereto] of which the seller is, and the buyer is not, aware, and which the buyer could not with ordinary care discover; (b) to produce to the buyer on his request for examination all documents of title relating to the property which are in the sellers possession or power; 20. A mere perusal of the aforesaid provision will show that it was incumbent upon the appellants/Corporation to disclose to the respondent about the non-existence of the independent passage to the Unit. It was also the duty of the appellants/Corporation to inform the respondent that the passage mentioned in the revenue record was not fit for movement of vehicles. The appellant also failed to produce to the buyer the entire documentation as required by Section 51 (1) (b) of the aforesaid Section. We are therefore satisfied that the appellants/Corporation cannot seek to rely on the aforesaid provision of The Transfer of Property Act, 1882. 21. In our opinion, the reliance on Section 29 of the State Financial Corporations Act, 1951 is wholly misplaced. The aforesaid Section pertains to action which the Corporation can take against the Unit which had defaulted in payment of loan. In such circumstances the Corporation has the power to sell the property that has been hypothecated or mortgaged with the Corporation. Respondent herein is an auction purchaser and therefore cannot be confused with the defaulting unit. We are also of the considered opinion that the reliance placed on the judgment of this Court by the counsel for the appellants in the case of Union Bank of India vs. Official Liquidator and Ors. (1994) 1 SCC 575 is wholly misconceived. The aforesaid judgment relates to sale of the property and assets of a company in liquidation by the official liquidator under the orders of the Court. Therefore it is observed that the official liquidator cannot and does not hold any guarantee or warranty in respect of the property sold. That is because the official liquidator proceeds on the basis of what the records of the company in liquidation show. Therefore it is for the intending purchaser to satisfy himself in all respects as to the title and encumbrances and so forth of the immovable property that he proposes to purchase. In those circumstances it is held that the purchaser cannot after having purchased the property on such terms then claim diminution in the price on the ground of defect in the title or description of the property. The judgment clearly goes on to further hold as follows: "The case of the Official Liquidator selling the property of a company in liquidation under the orders of the Court is altogether different from the case of an individual selling immovable property belonging to himself." 22. The aforesaid observation would be clearly applicable to the Corporation as it is exercising the rights of an owner in selling the property. The appellants/Corporation is not selling the property as an official liquidator. 23. In any event, the facts of this case as narrated above would clearly indicate that the respondent had made all necessary inquiries. It was the appellants/Corporation that failed to perform its obligations in giving a fair description of the property offered for sale. Learned counsel had also relied on another judgment in the case of U.T. Chandigarh Administration and Anr. vs. Amarjeet Singh and Ors. (2009) 4 SCC 660. In our opinion, the aforesaid judgment is wholly inapplicable to the facts and circumstances of this case as it relates to the duties of a developer who carries on activities of development of land and invites application for allotment of sites in a developed layout. In our opinion the aforesaid judgment is not applicable to the facts of this case.
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18. In our opinion, the appellants cannot be given the benefit of Clause 5 of the advertisement. The appellants /Corporation cannot be permitted to take advantage of their own wrong. Clause 5 undoubtedly permits the forfeiture of the earnest money deposited. But this can only be, if the auction purchaser fails to comply with the conditions of sale. In our opinion the respondent has not failed to comply with the conditions of sale. Rather, it is the appellants/Corporation which has acted unfairly, and is trying to take advantage of its own wrong19. In view of the aforesaid, we are of the considered opinion that the appellants/Corporation cannot be permitted to rely upon Section 55 of The Transfer of Property Act, 1882. The appellants/Corporation failed to disclose to the respondent the material defect about the non-existence of the independent 3 `Karam passage to the property. Therefore, the appellants/ Corporation clearly acted in breach of Section 55 (1) (a) and (b) of The Transfer of Property Act, 188221. In our opinion, the reliance on Section 29 of the State Financial Corporations Act, 1951 is wholly misplaced. The aforesaid Section pertains to action which the Corporation can take against the Unit which had defaulted in payment of loan. In such circumstances the Corporation has the power to sell the property that has been hypothecated or mortgaged with the Corporation. Respondent herein is an auction purchaser and therefore cannot be confused with the defaulting unit. We are also of the considered opinion that the reliance placed on the judgment of this Court by the counsel for the appellants in the case of Union Bank of India vs. Official Liquidator and Ors. (1994) 1 SCC 575 is wholly misconceived. The aforesaid judgment relates to sale of the property and assets of a company in liquidation by the official liquidator under the orders of the Court. Therefore it is observed that the official liquidator cannot and does not hold any guarantee or warranty in respect of the property sold. That is because the official liquidator proceeds on the basis of what the records of the company in liquidation show. Therefore it is for the intending purchaser to satisfy himself in all respects as to the title and encumbrances and so forth of the immovable property that he proposes to purchase. In those circumstances it is held that the purchaser cannot after having purchased the property on such terms then claim diminution in the price on the ground of defect in the title or description of the property22. The aforesaid observation would be clearly applicable to the Corporation as it is exercising the rights of an owner in selling the property. The appellants/Corporation is not selling the property as an official liquidator23. In any event, the facts of this case as narrated above would clearly indicate that the respondent had made all necessary inquiries. It was the appellants/Corporation that failed to perform its obligations in giving a fair description of the property offered for sale. Learned counsel had also relied on another judgment in the case of U.T. Chandigarh Administration and Anr. vs. Amarjeet Singh and Ors. (2009) 4 SCC 660. In our opinion, the aforesaid judgment is wholly inapplicable to the facts and circumstances of this case as it relates to the duties of a developer who carries on activities of development of land and invites application for allotment of sites in a developed layoutIn our opinion the aforesaid judgment is not applicable to the facts of this case.
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Jasbir Singh Chhabra Vs. State Of Punjab | been forced to fight this unwarranted litigation. Be that as it may, the writ petitioners cannot, by any stretch of imagination, claim that they had a legitimate expectation in the matter of allotment of plots despite the fact that change of land use was yet to be sanctioned. 28. The doctrine of legitimate expectation has been described in Halsbury’s Laws of England, 4th Edn. in the following words: “A person may have a legitimate expectation of being treated in a certain way by an administrative authority even though he has no legal right in private law to receive such treatment. The expectation may arise either from a representation or promise made by the authority, including an implied representation, or from consistent past practice.” 29. In Food Corporation of India v. Kamdhenu Cattle Feed Industries (supra), this Court considered whether by submitting tender in response to notice issued by the Food Corporation of India for sale of stocks of damaged food grains, the respondent had acquired a right to have its tender accepted and the appellant was not entitled to reject the same. While approving the view expressed by the High Court that rejection of the highest tender of the writ petitioner-respondent was legally correct, this Court observed: “The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant’s perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent.” 30. In Union of India v.Hindustan Development Corporation (supra), the doctrine of legitimate expectation was explained in the following words: “. ... For legal purposes, the expectation cannot be the same as anticipation. It is different from a wish, a desire or a hope nor can it amount to a claim or demand on the ground of a right. However earnest and sincere a wish, a desire or a hope may be and however confidently one may look to them to be fulfilled, they by themselves cannot amount to an assertable expectation and a mere disappointment does not attract legal consequences. A pious hope even leading to a moral obligation cannot amount to a legitimate expectation. The legitimacy of an expectation can be inferred only if it is founded on the sanction of law or custom or an established procedure followed in regular and natural sequence. Again it is distinguishable from a genuine expectation. Such expectation should be justifiably legitimate and protectable. Every such legitimate expectation does not by itself fructify into a right and therefore it does not amount to a right in the conventional sense.” 31. The same principle has been stated and reiterated in Punjab Communications Ltd. v. Union of India, V (1999) SLT 237=(1999) 4 SCC 727 ; Dr. Chanchal Goyal v. State of Rajasthan, II (2003) SLT 269=(2003) 3 SCC 485 ; J.P. Bansal v. State of Rajasthan, III (2003) SLT 94=(2003) 5 SCC 134 ; State of Karnataka v. Uma Devi, III (2006) SLT 539=(2006) 4 SCC 1 ; Kuldeep Singh v. Government of NCT of Delhi, V (2006) SLT 713=(2006) 5 SCC 702 ; Ram Pravesh Singh v. State of Bihar, (2006) 8 SCC 381 and Sethi Auto Service Station v. DDA, VIII (2008) SLT 457=(2009) 1 SCC 180. In the last mentioned judgment, the Court referred to various precedents and observed: “..................the golden thread running through all these decisions is that a case for applicability of the doctrine of legitimate expectation, now accepted in the subjective sense as part of our legal jurisprudence, arises when an administrative body by reason of a representation or by past practice or conduct aroused an expectation which it would be within its powers to fulfil unless some overriding public interest comes in the way. However, a person who bases his claim on the doctrine of legitimate expectation, in the first instance, has to satisfy that he has relied on the said representation and the denial of that expectation has worked to his detriment. The Court could interfere only if the decision taken by the authority was found to be arbitrary, unreasonable or in gross abuse of power or in violation of principles of natural justice and not taken in public interest. But a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles.” 32. The plea of discrimination raised by the appellants is being mentioned only to be rejected because no similarity has been pointed out between their cases and the cases of those who had applied for allotment of plots in focal point, Patiala and Phase VIII (Jeevan Nagar), Ludhiana except that a common draw was held in furtherance of advertisement dated 23.3.2004. In any case, in view of our interpretation of the policy decision contained in Memo dated 26.12.2001, the allotment made in two other focal points, cannot enure to the appellants’ advantage and a mandamus cannot be issued in their favour because that would result in compelling the competent authority to sanction change of land use from industrial to residential in contravention of the policy decision taken by the State Government. | 0[ds]19. In our view, the aforesaid conclusion of the Division Bench of the High Court is not based on correct appreciation of the factual matrix and the background in which the Government declined to sanction change of land use from industrial to residential. It is not in dispute that the State Government acquired land and handed over the same to the Corporation which, as mentioned above, was created for developing infrastructure necessary for industrialization of different areas of the State. The land placed at the disposal of the Corporation was meant to be used for industrial purposes. After carrying out necessary development, the Corporation allotted land to those interested in setting up industrial units. In December 2001, the State Government approved the proposal of the Corporation for earmarkingof the land for Industrial Housing in the existing and coming up focal points and growth centres developed by the Corporation. The object underlying this policy decision was to provide some land for residential purpose to those who had set up or were intending to set up industrial units and the workers already employed or to be employed in such units. It was felt that the availability of residential facility within the focal point or growth centre will help in accelerating industrialization of the area. This is the reason why the phrase ‘Industrialwas used in contrast to the termin Memo dated 26.10.2001. This is also the reason why Plan Approval Committee of the Corporation had, while approving layouts of residential pockets in Phasesparks and multiplex complexes, but unequivocally opposed the idea of allotment of land for housing purposes. The issue was then considered by the State Government and an unequivocal decision was taken not to allow change of land use from industrial to residential. The record produced before the High Court and the documents produced before this Court do not show that the State Government had sanctioned change of land use in PhasesB, Mohali from industrial to commercial and allowed setting up of multiplex complexes within the focal points or growth centres. The writ petitioners have also not placed any material before this Court to show that the State Government had approved conditional allotment of land to M/s. Quark by the Allotment Committee or accepted the tentative recommendation made by it for allotment of land to M/s. A.B. Motion (Pvt.) Ltd. Rather, the events which followed the Staterefusal to sanction change of land use from industrial to residential demonstrate that the said decision was in consonance with the policy of industrialization which was unquestionably in public interest. In August 2004, the Corporation issued an advertisement which was published in ‘Thedated 13.8.2004, inviting applications for 65 industrial plots. In its meeting held on 13.12.2005, the Allotment Committee decided to allot 39.3 acres land in Phasefocal point, Mohali to M/s. Wipro Limited for setting up its unit of Software and I.T. Enabled Services because the same was expected to attract investment of Rs. 1,336 crores and generate employment opportunities for more than 9000 people. The Committee also decided to allot 25 acres land to M/s. Tata Consultancy Services for setting up their Software Development Centre by making an investment of Rs.25 crores with an employment potential of 575 persons. The High Court appears to have been unduly influenced by the fact that the Allotment Committee had considered a proposal for allotment of land to M/s. A.B. Motions (Pvt.) Ltd.. However, in the absence of any tangible or substantive evidence to show that the State Government had taken a conscious decision to allot the surplus land in PhasesB, Mohali for construction of multiplex complexes or for any purpose other than industrial, the Division Bench of the High Court was not at all justified in recording a finding that the decision contained in Memo dated 5.8.2004 is vitiated due to mala fides.The issue deserves to be considered from another angle. Section 79 of the 1995 Act, the applicability of which to the case in hand has not been questioned by the writmandates that after coming into operation of any Master Plan in any area, no person shall use or permit to be used any land or carry out development in that area otherwise than in conformity with such Master Plan. Proviso to this section empowers the competent authority to allow continuance of any use of any land for a maximum period of 10 years for the purpose for which it was being used on the date of enforcement of the Master Plan. Section 81 of that Act lays down the procedure for change of land use. In terms of(2) of Section 81, even a department of the State Government or the Central Government or a local authority is required to notify to the competent authority of its intention to carry out any development in respect of any land or change of use. The competent authority can object to such development or change of land use. In that event, the matter is required to be considered and decided by the State Government. In view of these provisions, the State Government was well within its power to take appropriate decision on the proposal made by the Corporation to change the land use from industrial to residential and we do not find any fault with its decision not to sanction such change.We are in complete agreement with the Division Bench of the High Court that no promise much less an enforceable promise was made by the Corporation to the prospective applicants that by making an application pursuant to the advertisement and on being declared successful in the draw of lots, they will get residential plots. Rather, being conscious of the fact that in terms of the approval accorded by the State Government vide Memo dated 26.12.2001, it could utilizearea of the focal point only for Industrial Housing, the Corporation had made it clear to the prospective applicants that there is no certainty of their getting residential plots in PhasesB, Mohali. The decision taken by Plan Approval Committee of the Corporation to approve the layouts of residential pockets in PhasesB, Mohali was not final. The same was subject to sanction of change of land use in accordance with the provisions of the 1995 Act. The Allotment Committee made a clear recommendation against utilization of surplus land for housing purposes. The writ petitioners were very much aware of the tentative character of the initial advertisement as also the advertisement issued for holding draw of lots. By incorporating note in the second advertisement, which has been reproduced herein above, the Corporation had made it known to every one that the entire exercise was provisional and those who did not want to participate in that exercise were at liberty to seek refund of the earnest money. To put it differently, the Corporation did not make any representation to the prospective applicants which induced them to part with their money or adversely change their position. Therefore, the High Court rightly refused to invoke the doctrine of promissory estoppel in favour of the writ petitioners.The plea of the writ petitioners that they had legitimate expectation of being allotted residential plots in Phasesin Mohali because in 2002 138 plots were allotted to the successful applicants sans merit. At the cost of repetition, it is necessary to mention that the writ petitioners had submitted applications knowing fully well that the same would not obligate the Corporation to allot plots to them. It is rather intriguing that even though approval of the layouts of residential pockets in PhasesB, Mohali by Plan Approval Committee of the Corporation was subject to approval being accorded by the competent authority under the 1995 Act for change of land use from industrial to residential, and the Allotment Committee in which Managing Director of the Corporation had taken part, made a negative recommendation in the matter of allotment of land for housing purposes, the same officer authorized issue of advertisement dated 23.3.2004 for holding provisional draw of lots. In our view, this exercise was wholly unnecessary and uncalled for. If the concerned officer had not acted in haste and waited for the decision of the competent authority on the issue of change of land use, the parties may not have been forced to fight this unwarranted litigation. Be that as it may, the writ petitioners cannot, by any stretch of imagination, claim that they had a legitimate expectation in the matter of allotment of plots despite the fact that change of land use was yet to be sanctioned.The plea of discrimination raised by the appellants is being mentioned only to be rejected because no similarity has been pointed out between their cases and the cases of those who had applied for allotment of plots in focal point, Patiala and Phase VIII (Jeevan Nagar), Ludhiana except that a common draw was held in furtherance of advertisement dated 23.3.2004. In any case, in view of our interpretation of the policy decision contained in Memo dated 26.12.2001, the allotment made in two other focal points, cannot enure to theadvantage and a mandamus cannot be issued in their favour because that would result in compelling the competent authority to sanction change of land use from industrial to residential in contravention of the policy decision taken by the State Government. | 0 | 10,386 | 1,654 | ### 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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been forced to fight this unwarranted litigation. Be that as it may, the writ petitioners cannot, by any stretch of imagination, claim that they had a legitimate expectation in the matter of allotment of plots despite the fact that change of land use was yet to be sanctioned. 28. The doctrine of legitimate expectation has been described in Halsbury’s Laws of England, 4th Edn. in the following words: “A person may have a legitimate expectation of being treated in a certain way by an administrative authority even though he has no legal right in private law to receive such treatment. The expectation may arise either from a representation or promise made by the authority, including an implied representation, or from consistent past practice.” 29. In Food Corporation of India v. Kamdhenu Cattle Feed Industries (supra), this Court considered whether by submitting tender in response to notice issued by the Food Corporation of India for sale of stocks of damaged food grains, the respondent had acquired a right to have its tender accepted and the appellant was not entitled to reject the same. While approving the view expressed by the High Court that rejection of the highest tender of the writ petitioner-respondent was legally correct, this Court observed: “The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant’s perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent.” 30. In Union of India v.Hindustan Development Corporation (supra), the doctrine of legitimate expectation was explained in the following words: “. ... For legal purposes, the expectation cannot be the same as anticipation. It is different from a wish, a desire or a hope nor can it amount to a claim or demand on the ground of a right. However earnest and sincere a wish, a desire or a hope may be and however confidently one may look to them to be fulfilled, they by themselves cannot amount to an assertable expectation and a mere disappointment does not attract legal consequences. A pious hope even leading to a moral obligation cannot amount to a legitimate expectation. The legitimacy of an expectation can be inferred only if it is founded on the sanction of law or custom or an established procedure followed in regular and natural sequence. Again it is distinguishable from a genuine expectation. Such expectation should be justifiably legitimate and protectable. Every such legitimate expectation does not by itself fructify into a right and therefore it does not amount to a right in the conventional sense.” 31. The same principle has been stated and reiterated in Punjab Communications Ltd. v. Union of India, V (1999) SLT 237=(1999) 4 SCC 727 ; Dr. Chanchal Goyal v. State of Rajasthan, II (2003) SLT 269=(2003) 3 SCC 485 ; J.P. Bansal v. State of Rajasthan, III (2003) SLT 94=(2003) 5 SCC 134 ; State of Karnataka v. Uma Devi, III (2006) SLT 539=(2006) 4 SCC 1 ; Kuldeep Singh v. Government of NCT of Delhi, V (2006) SLT 713=(2006) 5 SCC 702 ; Ram Pravesh Singh v. State of Bihar, (2006) 8 SCC 381 and Sethi Auto Service Station v. DDA, VIII (2008) SLT 457=(2009) 1 SCC 180. In the last mentioned judgment, the Court referred to various precedents and observed: “..................the golden thread running through all these decisions is that a case for applicability of the doctrine of legitimate expectation, now accepted in the subjective sense as part of our legal jurisprudence, arises when an administrative body by reason of a representation or by past practice or conduct aroused an expectation which it would be within its powers to fulfil unless some overriding public interest comes in the way. However, a person who bases his claim on the doctrine of legitimate expectation, in the first instance, has to satisfy that he has relied on the said representation and the denial of that expectation has worked to his detriment. The Court could interfere only if the decision taken by the authority was found to be arbitrary, unreasonable or in gross abuse of power or in violation of principles of natural justice and not taken in public interest. But a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles.” 32. The plea of discrimination raised by the appellants is being mentioned only to be rejected because no similarity has been pointed out between their cases and the cases of those who had applied for allotment of plots in focal point, Patiala and Phase VIII (Jeevan Nagar), Ludhiana except that a common draw was held in furtherance of advertisement dated 23.3.2004. In any case, in view of our interpretation of the policy decision contained in Memo dated 26.12.2001, the allotment made in two other focal points, cannot enure to the appellants’ advantage and a mandamus cannot be issued in their favour because that would result in compelling the competent authority to sanction change of land use from industrial to residential in contravention of the policy decision taken by the State Government.
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been unduly influenced by the fact that the Allotment Committee had considered a proposal for allotment of land to M/s. A.B. Motions (Pvt.) Ltd.. However, in the absence of any tangible or substantive evidence to show that the State Government had taken a conscious decision to allot the surplus land in PhasesB, Mohali for construction of multiplex complexes or for any purpose other than industrial, the Division Bench of the High Court was not at all justified in recording a finding that the decision contained in Memo dated 5.8.2004 is vitiated due to mala fides.The issue deserves to be considered from another angle. Section 79 of the 1995 Act, the applicability of which to the case in hand has not been questioned by the writmandates that after coming into operation of any Master Plan in any area, no person shall use or permit to be used any land or carry out development in that area otherwise than in conformity with such Master Plan. Proviso to this section empowers the competent authority to allow continuance of any use of any land for a maximum period of 10 years for the purpose for which it was being used on the date of enforcement of the Master Plan. Section 81 of that Act lays down the procedure for change of land use. In terms of(2) of Section 81, even a department of the State Government or the Central Government or a local authority is required to notify to the competent authority of its intention to carry out any development in respect of any land or change of use. The competent authority can object to such development or change of land use. In that event, the matter is required to be considered and decided by the State Government. In view of these provisions, the State Government was well within its power to take appropriate decision on the proposal made by the Corporation to change the land use from industrial to residential and we do not find any fault with its decision not to sanction such change.We are in complete agreement with the Division Bench of the High Court that no promise much less an enforceable promise was made by the Corporation to the prospective applicants that by making an application pursuant to the advertisement and on being declared successful in the draw of lots, they will get residential plots. Rather, being conscious of the fact that in terms of the approval accorded by the State Government vide Memo dated 26.12.2001, it could utilizearea of the focal point only for Industrial Housing, the Corporation had made it clear to the prospective applicants that there is no certainty of their getting residential plots in PhasesB, Mohali. The decision taken by Plan Approval Committee of the Corporation to approve the layouts of residential pockets in PhasesB, Mohali was not final. The same was subject to sanction of change of land use in accordance with the provisions of the 1995 Act. The Allotment Committee made a clear recommendation against utilization of surplus land for housing purposes. The writ petitioners were very much aware of the tentative character of the initial advertisement as also the advertisement issued for holding draw of lots. By incorporating note in the second advertisement, which has been reproduced herein above, the Corporation had made it known to every one that the entire exercise was provisional and those who did not want to participate in that exercise were at liberty to seek refund of the earnest money. To put it differently, the Corporation did not make any representation to the prospective applicants which induced them to part with their money or adversely change their position. Therefore, the High Court rightly refused to invoke the doctrine of promissory estoppel in favour of the writ petitioners.The plea of the writ petitioners that they had legitimate expectation of being allotted residential plots in Phasesin Mohali because in 2002 138 plots were allotted to the successful applicants sans merit. At the cost of repetition, it is necessary to mention that the writ petitioners had submitted applications knowing fully well that the same would not obligate the Corporation to allot plots to them. It is rather intriguing that even though approval of the layouts of residential pockets in PhasesB, Mohali by Plan Approval Committee of the Corporation was subject to approval being accorded by the competent authority under the 1995 Act for change of land use from industrial to residential, and the Allotment Committee in which Managing Director of the Corporation had taken part, made a negative recommendation in the matter of allotment of land for housing purposes, the same officer authorized issue of advertisement dated 23.3.2004 for holding provisional draw of lots. In our view, this exercise was wholly unnecessary and uncalled for. If the concerned officer had not acted in haste and waited for the decision of the competent authority on the issue of change of land use, the parties may not have been forced to fight this unwarranted litigation. Be that as it may, the writ petitioners cannot, by any stretch of imagination, claim that they had a legitimate expectation in the matter of allotment of plots despite the fact that change of land use was yet to be sanctioned.The plea of discrimination raised by the appellants is being mentioned only to be rejected because no similarity has been pointed out between their cases and the cases of those who had applied for allotment of plots in focal point, Patiala and Phase VIII (Jeevan Nagar), Ludhiana except that a common draw was held in furtherance of advertisement dated 23.3.2004. In any case, in view of our interpretation of the policy decision contained in Memo dated 26.12.2001, the allotment made in two other focal points, cannot enure to theadvantage and a mandamus cannot be issued in their favour because that would result in compelling the competent authority to sanction change of land use from industrial to residential in contravention of the policy decision taken by the State Government.
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The Amalgamated Tea Estate Company Limited Etc Vs. The State of Kerala | give the domestic companies protection against the foreign companies. And there seems to be yet another good reason for this. The entire income earned by a domestic company from business inside as well as outside India will remain in India. But a good part of the income earned by the petitioners inside India would be drained out of India to the United Kingdom in the shape of dividends, etc. Under the Foreign Exchange Regulation Act, 1947, it is open to a foreign company to transmit money out of India with the permission of the Reserve Bank of India. It is thus evident that a greater part of the income and skill of the domestic companies is likely to be utilised in improving agricultural within the State. It will not be so in the case of foreign companies.12. On these considerations it cannot be said that the classification of companies into domestic and foreign companies has no rational relation to the purpose of the impugned provisions.13. Our view receives strong support from the Courts opinion in D. P. Joshi v. State of Madhya bharat, (1955) 1 SCR 1215 at p. 1228 = (AIR 1955 SC 334 ). That case related to the question of admission of students in a Medical College in the State of Madhya Bharat. According to a direction of the State of Madhya Bharat, all students admitted to the College were required to pay a prescribed fee. But students who were not bona fide residents of Madhya Bharat were also required to pay capitation fee of Rs.1,500/-. A student who was not a bona fide recident of Madhya Bharat were also required to pay capitation fee of Rs.1,500/-. A student who was not a bona fide resident of Madhya Bharat challenged the capitation fee as being violative of Art.14. The majority of the Court overrueld the contention. Speaking for the Court, Venkatarama Ayyar, J. said :"The object of the classification underlying the impugned rule was clearly to help to some extent students who are residents of Madhya Bharat in the prosecution of their studies, and it cannot be disputed that it is quite a legitimate and laudable objective for a State ot encourage education within its borders. Education is a State subject, and one of the directive principles declared in Part IV of the Constitution is that the State should make effective provision for education within the limits of its economy. The State has to contribute for the upkeep and the running of its educational institutions. We are in this petition concerned with a Medical College, and it is well-known that it requires considerable finance to maintain such an institution. If the State has to spend money on it, is it unreasonable that it should so order the educational system that the advantage of it would to some extent at least ensure for the benefit of the State? A concession given to the residents of the State in the matter of fee is obviously calculated to serve that end, as presumably some of them might, after passing out of the College, settle down as doctors and serve the needs of the locality. The classification is thus based on a ground which has a reasonable relation to the subject-matter of the legislation, and is in consequence not open to attack. It has been held in the State of Punjab v. Ajaib Singh 1953 SCR 254 = (AIR 1953 SC 10 = 1953 Cri LJ 180) that a classification might validly be made on a geographical basis. Such a classification would be eminently just and reasonable, where it relates to education which is the concern primarily of the State. The contention, therefore, that the rule imposing capitation fee is in contravention of Art.14 must be rejected."14. Wheeling Steel Corporation (1948) 93 Law Ed 1544 (supra) cannot, in our view assist the petitioners. Firstly, the foreign corporation there was a corporation incorporated and registered in a State within the U.S.A. Here the petitioner companies are incorporated not in any part of India but in the United Kingdom. Secondly, while there the taxing State has chosen "to adopt" the petitioning foreign corporation, here there is no evidence to show that the petitioners were permitted to carry on business in the State of Kerala by the choice of that State. In all probability they had set up their business in that State before India became a Sovereign Republic. Thirdly, there the taxing State was trying to tax the property of a foreign corporation admitted in the State. Here the State of Kerala is not taxing the property, but the income, of the petitioners from their agricultural property.15. In Hans Muller of Nurenburg v. Supdt. Presidency Jail, Calcutta, (1955) 1 SCR 1284 = (AIR 1955 SC 367 = 1955 Cri LJ 876) this Court upheld the classification of foreigners into those who are British subjects and those who are not British subjects for the purpose of preventive detention. The Court said there: "(I)t is eadily understandable that the reasons of State may make it desirable to classify foreigners into different groups".16. K. T. Moopil Nair v. State of Kerala, (1961) 3 SCR 77 = (AIR 1961 SC 552 ) and State of Kerala v. Haji K. Kutty Naha, AIR 1969 SC 378 deals with taxing statutes. In the first case, the State of Kerala had imposed a uniform tax levy on land. The taxing provisions were struck down as violative of Art. 14 because according to the Court there was no classification of persons for the purpose of taxation. In the other case, a uniform building tax was imposed on buildings according to their floor area. The taxing provisions were struck down as being discriminatory for total lack of any classification of persons or buildings. The impugned Act of 1970 does not suffer from this vice. So these cases also do not help the petitioners.17. We are of opinion that the impugned provisions of the Amending Act of 1970 are not violative of Art.14. | 0[ds]The classification test is, however, not inflexible and doctrinaire. It gives due regard to the complex necessities and intricate problems of Government. Thus as revenue is the first necessity of the State and as taxes are raised for various purposes and by an adjusmtnet of diverse elements, the Court grants to the State greater choice of classification in the field of taxation, that in other spheres.The reason why a statute is presumed to be constitutional is that the Legislature is the best Judge of the local conditions and circumstances and special needs of various classes of persons orthe tax relief given to them is not proved to be arbitrary or unreasonable. It may be that the domestic companies own land which is less fertile or produce inferior quality of plantation crops while the foreign companies own more fertile land and produce superior quality of plantation crops. In that case, the domestic companies would not be able to withstand the compensation of the foreign companies and would not survive. The State might have chosen to give the domestic companies protection against the foreign companies. And there seems to be yet another good reason for this. The entire income earned by a domestic company from business inside as well as outside India will remain in India. But a good part of the income earned by the petitioners inside India would be drained out of India to the United Kingdom in the shape of dividends, etc. Under the Foreign Exchange Regulation Act, 1947, it is open to a foreign company to transmit money out of India with the permission of the Reserve Bank of India. It is thus evident that a greater part of the income and skill of the domestic companies is likely to be utilised in improving agricultural within the State. It will not be so in the case of foreignthe State has to spend money on it, is it unreasonable that it should so order the educational system that the advantage of it would to some extent at least ensure for the benefit of the State? A concession given to the residents of the State in the matter of fee is obviously calculated to serve that end, as presumably some of them might, after passing out of the College, settle down as doctors and serve the needs of the locality. The classification is thus based on a ground which has a reasonable relation to the subject-matter of the legislation, and is in consequence not open to attack. It has been held in the State of Punjab v. Ajaib Singh 1953 SCR 254 = (AIR 1953 SC 10 = 1953 Cri LJ 180) that a classification might validly be made on a geographical basis. Such a classification would be eminently just and reasonable, where it relates to education which is the concern primarily of the State. The contention, therefore, that the rule imposing capitation fee is in contravention of Art.14 must bethe first case, the State of Kerala had imposed a uniform tax levy on land. The taxing provisions were struck down as violative of Art. 14 because according to the Court there was no classification of persons for the purpose of taxation. In the other case, a uniform building tax was imposed on buildings according to their floor area. The taxing provisions were struck down as being discriminatory for total lack of any classification of persons or buildings. The impugned Act of 1970 does not suffer from this vice. So these cases also do not help the petitioners.We are of opinion that the impugned provisions of the Amending Act of 1970 are not violative of Art.14. | 0 | 3,004 | 653 | ### 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:
give the domestic companies protection against the foreign companies. And there seems to be yet another good reason for this. The entire income earned by a domestic company from business inside as well as outside India will remain in India. But a good part of the income earned by the petitioners inside India would be drained out of India to the United Kingdom in the shape of dividends, etc. Under the Foreign Exchange Regulation Act, 1947, it is open to a foreign company to transmit money out of India with the permission of the Reserve Bank of India. It is thus evident that a greater part of the income and skill of the domestic companies is likely to be utilised in improving agricultural within the State. It will not be so in the case of foreign companies.12. On these considerations it cannot be said that the classification of companies into domestic and foreign companies has no rational relation to the purpose of the impugned provisions.13. Our view receives strong support from the Courts opinion in D. P. Joshi v. State of Madhya bharat, (1955) 1 SCR 1215 at p. 1228 = (AIR 1955 SC 334 ). That case related to the question of admission of students in a Medical College in the State of Madhya Bharat. According to a direction of the State of Madhya Bharat, all students admitted to the College were required to pay a prescribed fee. But students who were not bona fide residents of Madhya Bharat were also required to pay capitation fee of Rs.1,500/-. A student who was not a bona fide recident of Madhya Bharat were also required to pay capitation fee of Rs.1,500/-. A student who was not a bona fide resident of Madhya Bharat challenged the capitation fee as being violative of Art.14. The majority of the Court overrueld the contention. Speaking for the Court, Venkatarama Ayyar, J. said :"The object of the classification underlying the impugned rule was clearly to help to some extent students who are residents of Madhya Bharat in the prosecution of their studies, and it cannot be disputed that it is quite a legitimate and laudable objective for a State ot encourage education within its borders. Education is a State subject, and one of the directive principles declared in Part IV of the Constitution is that the State should make effective provision for education within the limits of its economy. The State has to contribute for the upkeep and the running of its educational institutions. We are in this petition concerned with a Medical College, and it is well-known that it requires considerable finance to maintain such an institution. If the State has to spend money on it, is it unreasonable that it should so order the educational system that the advantage of it would to some extent at least ensure for the benefit of the State? A concession given to the residents of the State in the matter of fee is obviously calculated to serve that end, as presumably some of them might, after passing out of the College, settle down as doctors and serve the needs of the locality. The classification is thus based on a ground which has a reasonable relation to the subject-matter of the legislation, and is in consequence not open to attack. It has been held in the State of Punjab v. Ajaib Singh 1953 SCR 254 = (AIR 1953 SC 10 = 1953 Cri LJ 180) that a classification might validly be made on a geographical basis. Such a classification would be eminently just and reasonable, where it relates to education which is the concern primarily of the State. The contention, therefore, that the rule imposing capitation fee is in contravention of Art.14 must be rejected."14. Wheeling Steel Corporation (1948) 93 Law Ed 1544 (supra) cannot, in our view assist the petitioners. Firstly, the foreign corporation there was a corporation incorporated and registered in a State within the U.S.A. Here the petitioner companies are incorporated not in any part of India but in the United Kingdom. Secondly, while there the taxing State has chosen "to adopt" the petitioning foreign corporation, here there is no evidence to show that the petitioners were permitted to carry on business in the State of Kerala by the choice of that State. In all probability they had set up their business in that State before India became a Sovereign Republic. Thirdly, there the taxing State was trying to tax the property of a foreign corporation admitted in the State. Here the State of Kerala is not taxing the property, but the income, of the petitioners from their agricultural property.15. In Hans Muller of Nurenburg v. Supdt. Presidency Jail, Calcutta, (1955) 1 SCR 1284 = (AIR 1955 SC 367 = 1955 Cri LJ 876) this Court upheld the classification of foreigners into those who are British subjects and those who are not British subjects for the purpose of preventive detention. The Court said there: "(I)t is eadily understandable that the reasons of State may make it desirable to classify foreigners into different groups".16. K. T. Moopil Nair v. State of Kerala, (1961) 3 SCR 77 = (AIR 1961 SC 552 ) and State of Kerala v. Haji K. Kutty Naha, AIR 1969 SC 378 deals with taxing statutes. In the first case, the State of Kerala had imposed a uniform tax levy on land. The taxing provisions were struck down as violative of Art. 14 because according to the Court there was no classification of persons for the purpose of taxation. In the other case, a uniform building tax was imposed on buildings according to their floor area. The taxing provisions were struck down as being discriminatory for total lack of any classification of persons or buildings. The impugned Act of 1970 does not suffer from this vice. So these cases also do not help the petitioners.17. We are of opinion that the impugned provisions of the Amending Act of 1970 are not violative of Art.14.
### Response:
0
### Explanation:
The classification test is, however, not inflexible and doctrinaire. It gives due regard to the complex necessities and intricate problems of Government. Thus as revenue is the first necessity of the State and as taxes are raised for various purposes and by an adjusmtnet of diverse elements, the Court grants to the State greater choice of classification in the field of taxation, that in other spheres.The reason why a statute is presumed to be constitutional is that the Legislature is the best Judge of the local conditions and circumstances and special needs of various classes of persons orthe tax relief given to them is not proved to be arbitrary or unreasonable. It may be that the domestic companies own land which is less fertile or produce inferior quality of plantation crops while the foreign companies own more fertile land and produce superior quality of plantation crops. In that case, the domestic companies would not be able to withstand the compensation of the foreign companies and would not survive. The State might have chosen to give the domestic companies protection against the foreign companies. And there seems to be yet another good reason for this. The entire income earned by a domestic company from business inside as well as outside India will remain in India. But a good part of the income earned by the petitioners inside India would be drained out of India to the United Kingdom in the shape of dividends, etc. Under the Foreign Exchange Regulation Act, 1947, it is open to a foreign company to transmit money out of India with the permission of the Reserve Bank of India. It is thus evident that a greater part of the income and skill of the domestic companies is likely to be utilised in improving agricultural within the State. It will not be so in the case of foreignthe State has to spend money on it, is it unreasonable that it should so order the educational system that the advantage of it would to some extent at least ensure for the benefit of the State? A concession given to the residents of the State in the matter of fee is obviously calculated to serve that end, as presumably some of them might, after passing out of the College, settle down as doctors and serve the needs of the locality. The classification is thus based on a ground which has a reasonable relation to the subject-matter of the legislation, and is in consequence not open to attack. It has been held in the State of Punjab v. Ajaib Singh 1953 SCR 254 = (AIR 1953 SC 10 = 1953 Cri LJ 180) that a classification might validly be made on a geographical basis. Such a classification would be eminently just and reasonable, where it relates to education which is the concern primarily of the State. The contention, therefore, that the rule imposing capitation fee is in contravention of Art.14 must bethe first case, the State of Kerala had imposed a uniform tax levy on land. The taxing provisions were struck down as violative of Art. 14 because according to the Court there was no classification of persons for the purpose of taxation. In the other case, a uniform building tax was imposed on buildings according to their floor area. The taxing provisions were struck down as being discriminatory for total lack of any classification of persons or buildings. The impugned Act of 1970 does not suffer from this vice. So these cases also do not help the petitioners.We are of opinion that the impugned provisions of the Amending Act of 1970 are not violative of Art.14.
|
BRIG. NALIN KUMAR BHATIA Vs. UNION OF INDIA AND ORS | 04.01.2011 superseded all earlier policies on the conduct by selection boards of quantification system. 15. The Appellant was considered for empanelment by the First Selection Board on 24.04.2015 in accordance with the guidelines laid down in the promotion policy dated 04.01.2011. The Appellant secured a total of 89.667 per cent marks. The record pertaining to the First Selection Board, held on 24.04.2015 was placed before us. The Selection Board did not recommend the Appellant for empanelment for promotion to the rank of Major General in Intelligence Corps. After examining the complete profile of the officer, the Selection Board was of the opinion that the Appellant did not have the requisite potential and was not fit for promotion to the rank of Major General. The Appellant was considered again for empanelment in September, 2015 in which he secured 90.469 marks out of 100 but was not recommended for empanelment. 16. It is clear from the record that the Appellant was the only officer of 1981 batch who was considered for empanelment for promotion to the rank of Major General on 24.04.2015. The apprehension of the Appellant that he was compared with the merit of the earlier batch is unfounded. 17. Article 16 of the Constitution of India confers a right to be considered for promotion. There is no right for promotion, but the right that is conferred by Article 16 is to be considered for promotion fairly and in accordance with the extant rules or regulations governing promotions. Violation of rules/regulations or the policy governing promotions would entail in violation of Article 16 of the Constitution of India. The contention of the Appellant that he deserved to be empanelled on the basis of the promotion policy needs to be considered. The quantification system for promotion was introduced to ensure objectivity and impartiality in the matter of promotions to higher ranks in the Army. It is clear from the policy that primacy is given to the CRs. Admittedly, the Appellant secured 89.667 marks in the first selection held in April, 2015 and 90.469 marks in the review selection held in September, 2015. He was the only eligible officer in the rank of Brigadier in Intelligence Corps belonging to the 1981 batch who was considered for empanelment to the rank of Major General. Responding to a query, Mr. Balasubramanian, learned Senior Counsel submitted that the Appellant was found not fit for promotion on a fair evaluation of his suitability and employability in rank of Major General. Though, only 5 marks have been earmarked for value judgment by the Selection Board, Mr. Balasubramanian submitted that there is nothing wrong in the decision of the Selection Board in not recommending the Appellant for empanelment to the rank of Major General after examining the complete reckonable profile of the officer. He justified the recommendation of the Selection Board by arguing that the Appellant was correctly refused empanelment on the ground that he lacked the requisite potential for promotion.18. The earlier policy followed for promotion to higher ranks in the Army from 1987 was revised in the year 2008 to introduce a quantification system to be followed by the Selection Boards. The policy governing promotions to higher ranks in the Army was issued on 04.01.2011 in supersession of the earlier policy of the quantification system. Primacy is given to the CRs as is clearly mentioned in the policy. There is nothing mentioned in the policy that an officer can be ignored for empanelment only on the basis of the value judgment in spite of his securing high marks on the basis of the other criteria. We are unable to agree with Mr. R. Balasubramanian that the Selection Board can recommend non- empanelment of an officer on the basis of their value judgment without reference to the other marks that are allotted to him. If the submission of Mr. Balasubramanian is accepted, the reason for the change in the method of evaluation of officers by the Selection Board to a quantification model would be meaningless. In the instant case, the Appellant was the only eligible Brigadier of his batch for empanelment to the rank of Major General with a meritorious record of service. He could not have been deprived of his empanelment only on the basis of value judgment of the Selection Board. 19. Another submission of Mr. Balasubramanian is that the Selection Board consists of senior officers of the Army and deference has to be shown to the discretion exercised by them in the matter of promotion. We disagree. Lord Acton said: - I cannot accept your canon that we are to judge Pope and King unlike other men, with a favourable presumption that they did no wrong. If there is any presumption it is the other way against holders of power, increasing as the power increases (Letter to Mandell (later, Bishop) Creighton, April 5, 1887 Historical Essays and Studies, 1907). 20. There is no presumption that a decision taken by persons occupying high posts is valid. All power vested in the authorities has to be discharged in accordance with the principles laid down by the Constitution and the other Statutes or Rules/Regulations governing the field. The judicial scrutiny of a decision does not depend on the rank or position held by the decision maker. The Court is concerned with the legality and validity of the decision and the rank of the decision maker does not make any diference. 21. Judgments of this Court have been cited to contend that officers in the Army are diferent from the civil servants. The submission made on behalf of the Respondent is that the law laid down in case of Government servants occupying civil posts cannot be applied to the Armed Forces personnel. We are not relying upon any judgment in favour of public servants in Government service for adjudicating the dispute in this case. The only point that is considered by us is regarding the non-empanelment of the Appellant being in accordance with the promotion policy of the Respondent. | 1[ds]15. The Appellant was considered for empanelment by the First Selection Board on 24.04.2015 in accordance with the guidelines laid down in the promotion policy dated 04.01.2011. The Appellant secured a total of 89.667 per cent marks. The record pertaining to the First Selection Board, held on 24.04.2015 was placed before us. The Selection Board did not recommend the Appellant for empanelment for promotion to the rank of Major General in Intelligence Corps. After examining the complete profile of the officer, the Selection Board was of the opinion that the Appellant did not have the requisite potential and was not fit for promotion to the rank of Major General. The Appellant was considered again for empanelment in September, 2015 in which he secured 90.469 marks out of 100 but was not recommended for empanelment16. It is clear from the record that the Appellant was the only officer of 1981 batch who was considered for empanelment for promotion to the rank of Major General on 24.04.2015. The apprehension of the Appellant that he was compared with the merit of the earlier batch is unfoundedThe quantification system for promotion was introduced to ensure objectivity and impartiality in the matter of promotions to higher ranks in the Army. It is clear from the policy that primacy is given to the CRs. Admittedly, the Appellant secured 89.667 marks in the first selection held in April, 2015 and 90.469 marks in the review selection held in September, 2015. He was the only eligible officer in the rank of Brigadier in Intelligence Corps belonging to the 1981 batch who was considered for empanelment to the rank of Major General18. The earlier policy followed for promotion to higher ranks in the Army from 1987 was revised in the year 2008 to introduce a quantification system to be followed by the Selection Boards. The policy governing promotions to higher ranks in the Army was issued on 04.01.2011 in supersession of the earlier policy of the quantification system. Primacy is given to the CRs as is clearly mentioned in the policy. There is nothing mentioned in the policy that an officer can be ignored for empanelment only on the basis of the value judgment in spite of his securing high marks on the basis of the other criteria. We are unable to agree with Mr. R. Balasubramanian that the Selection Board can recommend non- empanelment of an officer on the basis of their value judgment without reference to the other marks that are allotted to him. If the submission of Mr. Balasubramanian is accepted, the reason for the change in the method of evaluation of officers by the Selection Board to a quantification model would be meaningless. In the instant case, the Appellant was the only eligible Brigadier of his batch for empanelment to the rank of Major General with a meritorious record of service. He could not have been deprived of his empanelment only on the basis of value judgment of the Selection Board20. There is no presumption that a decision taken by persons occupying high posts is valid. All power vested in the authorities has to be discharged in accordance with the principles laid down by the Constitution and the other Statutes or Rules/Regulations governing the field. The judicial scrutiny of a decision does not depend on the rank or position held by the decision maker. The Court is concerned with the legality and validity of the decision and the rank of the decision maker does not make any diferenceWe are not relying upon any judgment in favour of public servants in Government service for adjudicating the dispute in this case. The only point that is considered by us is regarding the non-empanelment of the Appellant being in accordance with the promotion policy of the RespondentCivil Appeal No.5629 of 2017The facts of this Appeal are similar to the facts in Civil Appeal No.5751 of 2017. The Appellant was the only eligible Brigadier to be considered for promotion for empanelment for the post of Major General in the year 2015. In spite of his securing 87.973 marks out of a grand total of 100 marks, he was deprived of empanelment for promotion to the rank of Major General on the ground that he was not fit for promotion on the basis of value judgment of the Selection Board. | 1 | 3,375 | 760 | ### 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:
04.01.2011 superseded all earlier policies on the conduct by selection boards of quantification system. 15. The Appellant was considered for empanelment by the First Selection Board on 24.04.2015 in accordance with the guidelines laid down in the promotion policy dated 04.01.2011. The Appellant secured a total of 89.667 per cent marks. The record pertaining to the First Selection Board, held on 24.04.2015 was placed before us. The Selection Board did not recommend the Appellant for empanelment for promotion to the rank of Major General in Intelligence Corps. After examining the complete profile of the officer, the Selection Board was of the opinion that the Appellant did not have the requisite potential and was not fit for promotion to the rank of Major General. The Appellant was considered again for empanelment in September, 2015 in which he secured 90.469 marks out of 100 but was not recommended for empanelment. 16. It is clear from the record that the Appellant was the only officer of 1981 batch who was considered for empanelment for promotion to the rank of Major General on 24.04.2015. The apprehension of the Appellant that he was compared with the merit of the earlier batch is unfounded. 17. Article 16 of the Constitution of India confers a right to be considered for promotion. There is no right for promotion, but the right that is conferred by Article 16 is to be considered for promotion fairly and in accordance with the extant rules or regulations governing promotions. Violation of rules/regulations or the policy governing promotions would entail in violation of Article 16 of the Constitution of India. The contention of the Appellant that he deserved to be empanelled on the basis of the promotion policy needs to be considered. The quantification system for promotion was introduced to ensure objectivity and impartiality in the matter of promotions to higher ranks in the Army. It is clear from the policy that primacy is given to the CRs. Admittedly, the Appellant secured 89.667 marks in the first selection held in April, 2015 and 90.469 marks in the review selection held in September, 2015. He was the only eligible officer in the rank of Brigadier in Intelligence Corps belonging to the 1981 batch who was considered for empanelment to the rank of Major General. Responding to a query, Mr. Balasubramanian, learned Senior Counsel submitted that the Appellant was found not fit for promotion on a fair evaluation of his suitability and employability in rank of Major General. Though, only 5 marks have been earmarked for value judgment by the Selection Board, Mr. Balasubramanian submitted that there is nothing wrong in the decision of the Selection Board in not recommending the Appellant for empanelment to the rank of Major General after examining the complete reckonable profile of the officer. He justified the recommendation of the Selection Board by arguing that the Appellant was correctly refused empanelment on the ground that he lacked the requisite potential for promotion.18. The earlier policy followed for promotion to higher ranks in the Army from 1987 was revised in the year 2008 to introduce a quantification system to be followed by the Selection Boards. The policy governing promotions to higher ranks in the Army was issued on 04.01.2011 in supersession of the earlier policy of the quantification system. Primacy is given to the CRs as is clearly mentioned in the policy. There is nothing mentioned in the policy that an officer can be ignored for empanelment only on the basis of the value judgment in spite of his securing high marks on the basis of the other criteria. We are unable to agree with Mr. R. Balasubramanian that the Selection Board can recommend non- empanelment of an officer on the basis of their value judgment without reference to the other marks that are allotted to him. If the submission of Mr. Balasubramanian is accepted, the reason for the change in the method of evaluation of officers by the Selection Board to a quantification model would be meaningless. In the instant case, the Appellant was the only eligible Brigadier of his batch for empanelment to the rank of Major General with a meritorious record of service. He could not have been deprived of his empanelment only on the basis of value judgment of the Selection Board. 19. Another submission of Mr. Balasubramanian is that the Selection Board consists of senior officers of the Army and deference has to be shown to the discretion exercised by them in the matter of promotion. We disagree. Lord Acton said: - I cannot accept your canon that we are to judge Pope and King unlike other men, with a favourable presumption that they did no wrong. If there is any presumption it is the other way against holders of power, increasing as the power increases (Letter to Mandell (later, Bishop) Creighton, April 5, 1887 Historical Essays and Studies, 1907). 20. There is no presumption that a decision taken by persons occupying high posts is valid. All power vested in the authorities has to be discharged in accordance with the principles laid down by the Constitution and the other Statutes or Rules/Regulations governing the field. The judicial scrutiny of a decision does not depend on the rank or position held by the decision maker. The Court is concerned with the legality and validity of the decision and the rank of the decision maker does not make any diference. 21. Judgments of this Court have been cited to contend that officers in the Army are diferent from the civil servants. The submission made on behalf of the Respondent is that the law laid down in case of Government servants occupying civil posts cannot be applied to the Armed Forces personnel. We are not relying upon any judgment in favour of public servants in Government service for adjudicating the dispute in this case. The only point that is considered by us is regarding the non-empanelment of the Appellant being in accordance with the promotion policy of the Respondent.
### Response:
1
### Explanation:
15. The Appellant was considered for empanelment by the First Selection Board on 24.04.2015 in accordance with the guidelines laid down in the promotion policy dated 04.01.2011. The Appellant secured a total of 89.667 per cent marks. The record pertaining to the First Selection Board, held on 24.04.2015 was placed before us. The Selection Board did not recommend the Appellant for empanelment for promotion to the rank of Major General in Intelligence Corps. After examining the complete profile of the officer, the Selection Board was of the opinion that the Appellant did not have the requisite potential and was not fit for promotion to the rank of Major General. The Appellant was considered again for empanelment in September, 2015 in which he secured 90.469 marks out of 100 but was not recommended for empanelment16. It is clear from the record that the Appellant was the only officer of 1981 batch who was considered for empanelment for promotion to the rank of Major General on 24.04.2015. The apprehension of the Appellant that he was compared with the merit of the earlier batch is unfoundedThe quantification system for promotion was introduced to ensure objectivity and impartiality in the matter of promotions to higher ranks in the Army. It is clear from the policy that primacy is given to the CRs. Admittedly, the Appellant secured 89.667 marks in the first selection held in April, 2015 and 90.469 marks in the review selection held in September, 2015. He was the only eligible officer in the rank of Brigadier in Intelligence Corps belonging to the 1981 batch who was considered for empanelment to the rank of Major General18. The earlier policy followed for promotion to higher ranks in the Army from 1987 was revised in the year 2008 to introduce a quantification system to be followed by the Selection Boards. The policy governing promotions to higher ranks in the Army was issued on 04.01.2011 in supersession of the earlier policy of the quantification system. Primacy is given to the CRs as is clearly mentioned in the policy. There is nothing mentioned in the policy that an officer can be ignored for empanelment only on the basis of the value judgment in spite of his securing high marks on the basis of the other criteria. We are unable to agree with Mr. R. Balasubramanian that the Selection Board can recommend non- empanelment of an officer on the basis of their value judgment without reference to the other marks that are allotted to him. If the submission of Mr. Balasubramanian is accepted, the reason for the change in the method of evaluation of officers by the Selection Board to a quantification model would be meaningless. In the instant case, the Appellant was the only eligible Brigadier of his batch for empanelment to the rank of Major General with a meritorious record of service. He could not have been deprived of his empanelment only on the basis of value judgment of the Selection Board20. There is no presumption that a decision taken by persons occupying high posts is valid. All power vested in the authorities has to be discharged in accordance with the principles laid down by the Constitution and the other Statutes or Rules/Regulations governing the field. The judicial scrutiny of a decision does not depend on the rank or position held by the decision maker. The Court is concerned with the legality and validity of the decision and the rank of the decision maker does not make any diferenceWe are not relying upon any judgment in favour of public servants in Government service for adjudicating the dispute in this case. The only point that is considered by us is regarding the non-empanelment of the Appellant being in accordance with the promotion policy of the RespondentCivil Appeal No.5629 of 2017The facts of this Appeal are similar to the facts in Civil Appeal No.5751 of 2017. The Appellant was the only eligible Brigadier to be considered for promotion for empanelment for the post of Major General in the year 2015. In spite of his securing 87.973 marks out of a grand total of 100 marks, he was deprived of empanelment for promotion to the rank of Major General on the ground that he was not fit for promotion on the basis of value judgment of the Selection Board.
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ROHAN VIRANI Vs. THE STATE OF MAHARASHTRA | Non¬Autonomous Institute for the current academic year 2019-20. 11.5. It is the admitted position that the autonomous status granted to JBIMS has not been revoked, or surrendered. The application for extension was made by JBIMS pursuant to the permission granted by the Vice Chancellor of the University of Mumbai. The application for extension is stated to be under active consideration. Since JBIMS had continued to fulfill the eligibility criteria for extension/renewal of the autonomous status, it is only a ministerial act which is required to be carried out by the University to issue the Notification for grant of extension/renewal of the autonomous status. 11.6. It is relevant to note that even during the previous academic year i.e. 2018-19, the Directorate of Technical Education had issued a Notification, whereby it amended the Information Brochure, and allocated 100% seats in JBIMS to the Maharashtra State quota. This Notification came to be challenged by a student from the All India Quota in the case of Mayuri Umesh Munde v. Directorate of Technical Education & Ors. (supra), wherein the Bombay High Court held that the 100% reservation in favour of candidates from the State was illegal and impermissible. The High Court noted that during the preceding years, the State of Maharashtra had consistently allocated 85% seats in Autonomous Institutes to candidates from all Universities in the State of Maharashtra, and 15% seats to candidates from the All India Quota. The High Court held that JBIMS being a premier institution, and one of the top management colleges in the country, was being deprived of bright meritorious students from all over the country. This was a great national loss, and would undermine the status of an institution of national stature. This judgment was not challenged any further, and attained finality. 11.7. A perusal of the provisions of the Maharashtra Public Universities Act, 2016 provide the procedure for grant of autonomous status to departments of a University. Section 2(5) of the Maharashtra Public Universities Act, 2016 defines autonomy as follows :¬ 2. (5) autonomy means a privilege of the university conferred by the Statutes to permit a college, institution or a university department to conduct academic programmes and examinations, develop syllabus for the respective subjects and issue certificates of passing the examinations; Section 122 of this Act provides that a University Department, institution, affiliated college, or recognized institution may apply to the University for grant of autonomous status. As per sub¬section (1) of Section 122, the Management Council, on the recommendation of the Academic Council, may confer the autonomous status. Section 122 reads as follows: ¬122. (1) A university department or institution, affiliated college or recognized institution may apply to the university for grant of autonomous status. The Management Council on the recommendation of the Academic Council may confer the autonomous status. (2) Autonomous university department or institution or affiliated college or recognized institution shall function with the objectives of promoting academic freedom and scholarship on the part of teachers and students which are essential to the fostering and development of an intellectual climate conducive to the pursuit of scholarship and excellence. (3) The autonomous university department or institution or affiliated college or recognized institution, may constitute its authorities or bodies and exercise the powers and perform the functions and carry out the administrative, academic and other activities of the university, as may be prescribed by the Statutes. (4) The autonomous university department or institution or affiliated college or recognized institution may prescribe its own courses of study, evolve its own teaching methods and hold examinations and tests for students receiving instruction in it, and recommend the university for award degrees, diplomas or certificates, after following the procedure as prescribed in the Statutes. The autonomous university department or institution or affiliated college or recognized institution shall have full academic and administrative autonomy subject to the provisions of this Act and Statutes and the guidelines issued by the University Grant Commission, from time to time. (emphasis supplied) The aforesaid provisions of the 2016 Act clearly indicate that it is the University which is empowered to grant autonomous status to its Departments. Statute 604 of the University of Mumbai empowers the University to grant autonomous status initially for a period of 5 years, and then to extend it for a further period of 5 years, subject to the procedure prescribed in Statutes 598 and 600. The Application for extension of autonomous status has accordingly been made by JBIMS as a Department of the University, which is pending consideration before the University. 12. The decision of JBIMS to apply for extension of its autonomous status was taken by its Board of Management on 15.02.2019, well before the admissions process for the MMS Course commenced for the academic year 2019-2020. Accordingly, the Directorate of Technical Education was requested not to include JBIMS in the said process. JBIMS after some delay, had addressed a letter dated 25.05.2019 to the Vice Chancellor of the University for extension of its autonomous status, which was followed up by letters dated 27.06.2019 and 28.06.2019. We observe that there was some delay on the part of JBIMS and the University, to process the Application for extension which led to uncertainty regarding its continued Autonomous Status. We however feel that meritorious students who have secured higher marks in the CET Examination should not be denied admission, in view of the uncertainty which occurred. In our opinion, it would be unjust and unfair to the meritorious Respondent¬Students. Admittedly, JBIMS has enjoyed autonomous status for the last 5 years, whereby Home University students and students from the State of Maharashtra being covered by the 85% State quota, had an equal opportunity to compete for admission. It would harm JBIMS as an institution of national repute, and cause disillusionment and resentment amongst the meritorious students, if the admissions are not made on the basis of merit in the CET. Accordingly, we direct that for the current academic year 2019-2020, admissions would be made as per the Judgment of the High Court. | 1[ds]11.1. The admitted position is that JBIMS is a Department of the University of Mumbai, and was granted autonomous status by the University itself. JBIMS is not an affiliated college, nor a constituent college of the UniversityThis position has been accepted by all parties, including the State. In para 23 of the impugned judgment, the High Court has recorded the submission of the Advocate General for the State of Maharashtra about the status of JBIMS as follows :23….Then, Mr. Kumbhakoni was at pains to tell us about the status of JBIMS. He would submit that we must not forget that JBIMS is a department of University. The University has appointed the staff and the University has sanctioned the budget of JBIMS. It is not an affiliated college, but a college conducted by the University. It is not even a constituent college. Mr. Kumbhakoni would submit that the autonomy in this case is not granted by the UGC, but by the University of Mumbai…As per the University of Mumbai and JBIMS, autonomy was conferred by the University in accordance with the provisions of Maharashtra University Act, 199411.2. The UGC in its detailed written and oral submissions has expressly stated that JBIMS being a Department of the University of Mumbai, was not required to apply for autonomous status under the UGC 2018 Regulations. The 2018 Regulations were applicable to Colleges/ Institutions affiliated to Universities in the country seeking conferment of Autonomous College StatusIt was submitted that JBIMS is not an affiliated college, nor a constituent college, but a department of the University of Mumbai. The approval of the UGC is not required if a University Department applies to the University, for grant of autonomous status under Section 122 of the Maharashtra Public Universities Act, 201611.3. JBIMS had informed the Directorate of Technical Education vide letter dated 18.02.2019 that pursuant to the decision taken in the meeting of the Board of Management held on 15.02.2019, it was finalizing the admission procedure for the MMS course for the academic year 2019¬2020. It was requested that JBIMS should not be included in the CET processJBIMS informed the Directorate of Technical Education that since it was a Department of the University of Mumbai, it was awaiting to receive the extension of its autonomous status from the University of Mumbai11.4. The autonomous status conferred on JBIMS was granted with effect from 11.07.2014 to 11.07.2019. It was during the subsistence of the autonomous status, that the Directorate of Technical Education and the CET-Cell on 01.07.2019, had shown the status of JBIMS to be non-autonomousAs a consequence, the entire seat matrix for admission to the post¬graduate courses in JBIMS underwent a complete change. As per the seat matrix published, 70% seats would now be allocated to the University of Mumbai, to the exclusion of all other universities in the State of Maharashtra. The remaining 15% to other Universities; and the balance 15% for the All¬India Quota. In the aforesaid circumstances, since the application for extension was under consideration, the Directorate of Technical Education and the CET¬Cell were not justified in treating JBIMS as a Non¬Autonomous Institute for the current academic year 2019-2011.5. It is the admitted position that the autonomous status granted to JBIMS has not been revoked, or surrenderedThe application for extension was made by JBIMS pursuant to the permission granted by the Vice Chancellor of the University of Mumbai. The application for extension is stated to be under active considerationSince JBIMS had continued to fulfill the eligibility criteria for extension/renewal of the autonomous status, it is only a ministerial act which is required to be carried out by the University to issue the Notification for grant of extension/renewal of the autonomous status11.6. It is relevant to note that even during the previous academic year i.e. 2018-19, the Directorate of Technical Education had issued a Notification, whereby it amended the Information Brochure, and allocated 100% seats in JBIMS to the Maharashtra State quotaThis Notification came to be challenged by a student from the All India Quota in the case of Mayuri Umesh Munde v. Directorate of Technical EducationOrs. (supra), wherein the Bombay High Court held that the 100% reservation in favour of candidates from the State was illegal and impermissible. The High Court noted that during the preceding years, the State of Maharashtra had consistently allocated 85% seats in Autonomous Institutes to candidates from all Universities in the State of Maharashtra, and 15% seats to candidates from the All India QuotaThe High Court held that JBIMS being a premier institution, and one of the top management colleges in the country, was being deprived of bright meritorious students from all over the country. This was a great national loss, and would undermine the status of an institution of national statureThis judgment was not challenged any further, and attained finality11.7. A perusal of the provisions of the Maharashtra Public Universities Act, 2016 provide the procedure for grant of autonomous status to departments of a University.The aforesaid provisions of the 2016 Act clearly indicate that it is the University which is empowered to grant autonomous status to its DepartmentsStatute 604 of the University of Mumbai empowers the University to grant autonomous status initially for a period of 5 years, and then to extend it for a further period of 5 years, subject to the procedure prescribed in Statutes 598 and 600. The Application for extension of autonomous status has accordingly been made by JBIMS as a Department of the University, which is pending consideration before the University12. The decision of JBIMS to apply for extension of its autonomous status was taken by its Board of Management on 15.02.2019, well before the admissions process for the MMS Course commenced for the academic year 2019-2020. Accordingly, the Directorate of Technical Education was requested not to include JBIMS in the said process. JBIMS after some delay, had addressed a letter dated 25.05.2019 to the Vice Chancellor of the University for extension of its autonomous status, which was followed up by letters dated 27.06.2019 and 28.06.2019. We observe that there was some delay on the part of JBIMS and the University, to process the Application for extension which led to uncertainty regarding its continued Autonomous StatusWe however feel that meritorious students who have secured higher marks in the CET Examination should not be denied admission, in view of the uncertainty which occurred. In our opinion, it would be unjust and unfair to the meritorious Respondent¬Students. Admittedly, JBIMS has enjoyed autonomous status for the last 5 years, whereby Home University students and students from the State of Maharashtra being covered by the 85% State quota, had an equal opportunity to compete for admission. It would harm JBIMS as an institution of national repute, and cause disillusionment and resentment amongst the meritorious students, if the admissions are not made on the basis of merit in the CET. Accordingly, we direct that for the current academic year 2019-2020, admissions would be made as per the Judgment of the High Court. | 1 | 6,168 | 1,266 | ### 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:
Non¬Autonomous Institute for the current academic year 2019-20. 11.5. It is the admitted position that the autonomous status granted to JBIMS has not been revoked, or surrendered. The application for extension was made by JBIMS pursuant to the permission granted by the Vice Chancellor of the University of Mumbai. The application for extension is stated to be under active consideration. Since JBIMS had continued to fulfill the eligibility criteria for extension/renewal of the autonomous status, it is only a ministerial act which is required to be carried out by the University to issue the Notification for grant of extension/renewal of the autonomous status. 11.6. It is relevant to note that even during the previous academic year i.e. 2018-19, the Directorate of Technical Education had issued a Notification, whereby it amended the Information Brochure, and allocated 100% seats in JBIMS to the Maharashtra State quota. This Notification came to be challenged by a student from the All India Quota in the case of Mayuri Umesh Munde v. Directorate of Technical Education & Ors. (supra), wherein the Bombay High Court held that the 100% reservation in favour of candidates from the State was illegal and impermissible. The High Court noted that during the preceding years, the State of Maharashtra had consistently allocated 85% seats in Autonomous Institutes to candidates from all Universities in the State of Maharashtra, and 15% seats to candidates from the All India Quota. The High Court held that JBIMS being a premier institution, and one of the top management colleges in the country, was being deprived of bright meritorious students from all over the country. This was a great national loss, and would undermine the status of an institution of national stature. This judgment was not challenged any further, and attained finality. 11.7. A perusal of the provisions of the Maharashtra Public Universities Act, 2016 provide the procedure for grant of autonomous status to departments of a University. Section 2(5) of the Maharashtra Public Universities Act, 2016 defines autonomy as follows :¬ 2. (5) autonomy means a privilege of the university conferred by the Statutes to permit a college, institution or a university department to conduct academic programmes and examinations, develop syllabus for the respective subjects and issue certificates of passing the examinations; Section 122 of this Act provides that a University Department, institution, affiliated college, or recognized institution may apply to the University for grant of autonomous status. As per sub¬section (1) of Section 122, the Management Council, on the recommendation of the Academic Council, may confer the autonomous status. Section 122 reads as follows: ¬122. (1) A university department or institution, affiliated college or recognized institution may apply to the university for grant of autonomous status. The Management Council on the recommendation of the Academic Council may confer the autonomous status. (2) Autonomous university department or institution or affiliated college or recognized institution shall function with the objectives of promoting academic freedom and scholarship on the part of teachers and students which are essential to the fostering and development of an intellectual climate conducive to the pursuit of scholarship and excellence. (3) The autonomous university department or institution or affiliated college or recognized institution, may constitute its authorities or bodies and exercise the powers and perform the functions and carry out the administrative, academic and other activities of the university, as may be prescribed by the Statutes. (4) The autonomous university department or institution or affiliated college or recognized institution may prescribe its own courses of study, evolve its own teaching methods and hold examinations and tests for students receiving instruction in it, and recommend the university for award degrees, diplomas or certificates, after following the procedure as prescribed in the Statutes. The autonomous university department or institution or affiliated college or recognized institution shall have full academic and administrative autonomy subject to the provisions of this Act and Statutes and the guidelines issued by the University Grant Commission, from time to time. (emphasis supplied) The aforesaid provisions of the 2016 Act clearly indicate that it is the University which is empowered to grant autonomous status to its Departments. Statute 604 of the University of Mumbai empowers the University to grant autonomous status initially for a period of 5 years, and then to extend it for a further period of 5 years, subject to the procedure prescribed in Statutes 598 and 600. The Application for extension of autonomous status has accordingly been made by JBIMS as a Department of the University, which is pending consideration before the University. 12. The decision of JBIMS to apply for extension of its autonomous status was taken by its Board of Management on 15.02.2019, well before the admissions process for the MMS Course commenced for the academic year 2019-2020. Accordingly, the Directorate of Technical Education was requested not to include JBIMS in the said process. JBIMS after some delay, had addressed a letter dated 25.05.2019 to the Vice Chancellor of the University for extension of its autonomous status, which was followed up by letters dated 27.06.2019 and 28.06.2019. We observe that there was some delay on the part of JBIMS and the University, to process the Application for extension which led to uncertainty regarding its continued Autonomous Status. We however feel that meritorious students who have secured higher marks in the CET Examination should not be denied admission, in view of the uncertainty which occurred. In our opinion, it would be unjust and unfair to the meritorious Respondent¬Students. Admittedly, JBIMS has enjoyed autonomous status for the last 5 years, whereby Home University students and students from the State of Maharashtra being covered by the 85% State quota, had an equal opportunity to compete for admission. It would harm JBIMS as an institution of national repute, and cause disillusionment and resentment amongst the meritorious students, if the admissions are not made on the basis of merit in the CET. Accordingly, we direct that for the current academic year 2019-2020, admissions would be made as per the Judgment of the High Court.
### Response:
1
### Explanation:
Mumbai…As per the University of Mumbai and JBIMS, autonomy was conferred by the University in accordance with the provisions of Maharashtra University Act, 199411.2. The UGC in its detailed written and oral submissions has expressly stated that JBIMS being a Department of the University of Mumbai, was not required to apply for autonomous status under the UGC 2018 Regulations. The 2018 Regulations were applicable to Colleges/ Institutions affiliated to Universities in the country seeking conferment of Autonomous College StatusIt was submitted that JBIMS is not an affiliated college, nor a constituent college, but a department of the University of Mumbai. The approval of the UGC is not required if a University Department applies to the University, for grant of autonomous status under Section 122 of the Maharashtra Public Universities Act, 201611.3. JBIMS had informed the Directorate of Technical Education vide letter dated 18.02.2019 that pursuant to the decision taken in the meeting of the Board of Management held on 15.02.2019, it was finalizing the admission procedure for the MMS course for the academic year 2019¬2020. It was requested that JBIMS should not be included in the CET processJBIMS informed the Directorate of Technical Education that since it was a Department of the University of Mumbai, it was awaiting to receive the extension of its autonomous status from the University of Mumbai11.4. The autonomous status conferred on JBIMS was granted with effect from 11.07.2014 to 11.07.2019. It was during the subsistence of the autonomous status, that the Directorate of Technical Education and the CET-Cell on 01.07.2019, had shown the status of JBIMS to be non-autonomousAs a consequence, the entire seat matrix for admission to the post¬graduate courses in JBIMS underwent a complete change. As per the seat matrix published, 70% seats would now be allocated to the University of Mumbai, to the exclusion of all other universities in the State of Maharashtra. The remaining 15% to other Universities; and the balance 15% for the All¬India Quota. In the aforesaid circumstances, since the application for extension was under consideration, the Directorate of Technical Education and the CET¬Cell were not justified in treating JBIMS as a Non¬Autonomous Institute for the current academic year 2019-2011.5. It is the admitted position that the autonomous status granted to JBIMS has not been revoked, or surrenderedThe application for extension was made by JBIMS pursuant to the permission granted by the Vice Chancellor of the University of Mumbai. The application for extension is stated to be under active considerationSince JBIMS had continued to fulfill the eligibility criteria for extension/renewal of the autonomous status, it is only a ministerial act which is required to be carried out by the University to issue the Notification for grant of extension/renewal of the autonomous status11.6. It is relevant to note that even during the previous academic year i.e. 2018-19, the Directorate of Technical Education had issued a Notification, whereby it amended the Information Brochure, and allocated 100% seats in JBIMS to the Maharashtra State quotaThis Notification came to be challenged by a student from the All India Quota in the case of Mayuri Umesh Munde v. Directorate of Technical EducationOrs. (supra), wherein the Bombay High Court held that the 100% reservation in favour of candidates from the State was illegal and impermissible. The High Court noted that during the preceding years, the State of Maharashtra had consistently allocated 85% seats in Autonomous Institutes to candidates from all Universities in the State of Maharashtra, and 15% seats to candidates from the All India QuotaThe High Court held that JBIMS being a premier institution, and one of the top management colleges in the country, was being deprived of bright meritorious students from all over the country. This was a great national loss, and would undermine the status of an institution of national statureThis judgment was not challenged any further, and attained finality11.7. A perusal of the provisions of the Maharashtra Public Universities Act, 2016 provide the procedure for grant of autonomous status to departments of a University.The aforesaid provisions of the 2016 Act clearly indicate that it is the University which is empowered to grant autonomous status to its DepartmentsStatute 604 of the University of Mumbai empowers the University to grant autonomous status initially for a period of 5 years, and then to extend it for a further period of 5 years, subject to the procedure prescribed in Statutes 598 and 600. The Application for extension of autonomous status has accordingly been made by JBIMS as a Department of the University, which is pending consideration before the University12. The decision of JBIMS to apply for extension of its autonomous status was taken by its Board of Management on 15.02.2019, well before the admissions process for the MMS Course commenced for the academic year 2019-2020. Accordingly, the Directorate of Technical Education was requested not to include JBIMS in the said process. JBIMS after some delay, had addressed a letter dated 25.05.2019 to the Vice Chancellor of the University for extension of its autonomous status, which was followed up by letters dated 27.06.2019 and 28.06.2019. We observe that there was some delay on the part of JBIMS and the University, to process the Application for extension which led to uncertainty regarding its continued Autonomous StatusWe however feel that meritorious students who have secured higher marks in the CET Examination should not be denied admission, in view of the uncertainty which occurred. In our opinion, it would be unjust and unfair to the meritorious Respondent¬Students. Admittedly, JBIMS has enjoyed autonomous status for the last 5 years, whereby Home University students and students from the State of Maharashtra being covered by the 85% State quota, had an equal opportunity to compete for admission. It would harm JBIMS as an institution of national repute, and cause disillusionment and resentment amongst the meritorious students, if the admissions are not made on the basis of merit in the CET. Accordingly, we direct that for the current academic year 2019-2020, admissions would be made as per the Judgment of the High Court.
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Sr. Divisional Retail Sales Manager, Indian Oil Corporation Ltd. through Poa Holder and Ors Vs. Ashok Shankarlal Gwalani | comments are as under: In this case the candidate had brought the Duplicate copy of the original, which in its strictest sense is not the original. Logically duplicate copy of the documents should have been considered as original for the purpose verification. This could/should have been got confirmed by the coordinating officer and implemented. However it appears that the DO coordinating officer/L2Committee has strictly gone by the policy guidelines in this regard to verify the attested copy of the document submitted with the application, from the Original to be brought by the candidate at the time of interview. Therefore technically the DO coordinating Officer/L2 Committee has strictly followed the guidelines. ED MSO has detailed his views & finally opined as follows in: “In order to avoid any further complication and to give fair chance to everyone, in my opinion this selection process should be cancelled and the location should be Re- advertised. Since there is no specific policy in this regard it is suggested that HO opinion may be sought.” 14. From the pleading of the parties as noticed above and the record, the following facts emerges:- (a) The proclamation was made on 11.6.2005 i.e. more than seven years ago but till date no person has been granted the dealership in question. (b) The first interview was conducted on 9th-10th December, 2005 in which one Mr. Nilesh L. Kudalkar was placed at the top of the merit panel while the respondent was placed second and one Mr. K. Srinadha Rao was third. When complaints were made against the selection as well as an allegation of irregularity in the process, after investigation, the Company found that the respondent and Mr. Srinadha Rao had not been marked correctly and both failed to provide the attested documents as had been specifically required under the advertisement and therefore the first selection was cancelled. (c) The second re-interview was called for and conducted on 22nd and 24th December, 2008. In the said re-interview the respondent was the only eligible candidate in the merit panel. On the basis of the complaints made by other persons a one man Inquiry Commission was appointed. On the basis of the report of the Investigating Officer dated 6.2.2009 and 24.3.2009, it was found that there were lapses by the DO Coordinating Officer and the interview committee (L2), in not accepting the duplicate of the original mark-sheet of a candidate as detailed in the Inquiry Officer report in tabulation. (d) The record further shows that the respondent submitted a representation before the Chairman of the Company on 24.8.2009 with the reminder filed on different dates including the one dated 23.1.2010. The Senior Divisional Retail Sales Manager by communication dated 3.06.2010 informed the respondent that “on perusing the application and the accompanying documents it is observed that Relationship Affidavit not as per format. We regret that in view of the same your application is found ineligible.” In the aforesaid background, the DGM (RC) by its note dated 13.8.2009 rejected the opinion submitted by the Office for re-interview. 15. It is not clear as to how the assessment was made by the authorities as apparent from the investigation report (Annexure-R6). The Investigating Officer in the summary of investigation submitted his conclusion, the relevant potion of which reads as follows: “Summary of Investigation: Based on documents provided/handed over by DO, as also application the policy guidelines RO/6002 dt. 7.4.2005 & 4.4.2006 the following is the conclusion: A) L-1 Committee has not strictly followed the guidelines regarding signing of all documents for assessment. However, irrespective of this deviation, L-1 Committee has considered all documents for assessment. B) In case of ‘Liquid Cash in the form of Bank Fixed Deposit etc. and ‘Fixed and Movable Assets” as detailed in my report, for financial capability, the L-1 Committee, Screening Committee has given weight-age to documents of family members/ relatives even though ‘No Consent’ affidavit/letter is available. Therefore, in my final assessment, in line with the policy ‘No weight-age has been given to documents without consent. Therefore final marks have undergone change. Hence in line with the above the final result is as under: As per Interview Committee (in line with merit): Sr.Name of candidateTotal No.marks 1.Shri Nilesh Laxmikant Kudalkar56.50 2.Dr. Ashok Shankarlal55.33 Gwalani 3.Shri K. Srinadharao54.33 As per Screening Committee (in line with merit): Sr.Name of candidateTotal No.marks 1.Shri Nilesh Laxmikant59.0 Kudalkar 2.Shri K. Srinadharao57.0 3.Dr. Ashok Shankarlal52.0 Gwalani As per Investigation (in line with merit): Sr.Name of candidateTotal No.marks 1.Dr. Ashok Shankarlal56.78 Gwalani 2.Shri K. Srinadharao53.63 3.Shri Nilesh Laxmikant48.52 Kudalkar From the aforesaid report, it is clear that the Interview Committee, Screening Committee and the Investigation Officer assessed the three candidates in three different groups due to which the position of the candidates changed in the merit list prepared by the Interview Committee, Screening Committee and the investigation Officer.16. In the present case, the High Court has not noticed and discussed the aforesaid facts and without discussing the further developments as taken place after 24.12.2008, directed the appellants to issue the Letter of Intent in favour of the respondent. Though the High Court noticed the stand taken by the appellants that the ‘relationship affidavit’ submitted by the respondent was not as per format, it failed to discuss the effect of such an incomplete affidavit in the matter of selection.17. Generally, if an irregularity is detected in the matter of selection or preparation of a panel it is desirable to have a fresh selection instead of re-arranging the panel which is found to be vitiated. The Authority empowered to appoint, is the competent authority to decide as to whether the panel should be discarded and there should be a fresh selection in view of the facts narrated above. In such circumstances, the High Court under Article 226 of the Constitution of India ought to not have interfered with the decision of the competent authority in canceling the selection.18. For the reasons aforesaid, we have no other option but to set aside the order of the High Court. | 1[ds]is clear that the Interview Committee, Screening Committee and the Investigation Officer assessed the three candidates in three different groups due to which the position of the candidates changed in the merit list prepared by the Interview Committee, Screening Committee and the investigation Officer.16. In the present case, the High Court has not noticed and discussed the aforesaid facts and without discussing the further developments as taken place after 24.12.2008, directed the appellants to issue the Letter of Intent in favour of the respondent. Though the High Court noticed the stand taken by the appellants that the ‘relationshipsubmitted by the respondent was not as per format, it failed to discuss the effect of such an incomplete affidavit in the matter of selection.17. Generally, if an irregularity is detected in the matter of selection or preparation of a panel it is desirable to have a fresh selection instead of re-arranging the panel which is found to be vitiated. The Authority empowered to appoint, is the competent authority to decide as to whether the panel should be discarded and there should be a fresh selection in view of the facts narrated above. In such circumstances, the High Court under Article 226 of the Constitution of India ought to not have interfered with the decision of the competent authority in canceling the selection.18. For the reasons aforesaid, we have no other option but to set aside the order of the High Court. | 1 | 3,629 | 260 | ### 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:
comments are as under: In this case the candidate had brought the Duplicate copy of the original, which in its strictest sense is not the original. Logically duplicate copy of the documents should have been considered as original for the purpose verification. This could/should have been got confirmed by the coordinating officer and implemented. However it appears that the DO coordinating officer/L2Committee has strictly gone by the policy guidelines in this regard to verify the attested copy of the document submitted with the application, from the Original to be brought by the candidate at the time of interview. Therefore technically the DO coordinating Officer/L2 Committee has strictly followed the guidelines. ED MSO has detailed his views & finally opined as follows in: “In order to avoid any further complication and to give fair chance to everyone, in my opinion this selection process should be cancelled and the location should be Re- advertised. Since there is no specific policy in this regard it is suggested that HO opinion may be sought.” 14. From the pleading of the parties as noticed above and the record, the following facts emerges:- (a) The proclamation was made on 11.6.2005 i.e. more than seven years ago but till date no person has been granted the dealership in question. (b) The first interview was conducted on 9th-10th December, 2005 in which one Mr. Nilesh L. Kudalkar was placed at the top of the merit panel while the respondent was placed second and one Mr. K. Srinadha Rao was third. When complaints were made against the selection as well as an allegation of irregularity in the process, after investigation, the Company found that the respondent and Mr. Srinadha Rao had not been marked correctly and both failed to provide the attested documents as had been specifically required under the advertisement and therefore the first selection was cancelled. (c) The second re-interview was called for and conducted on 22nd and 24th December, 2008. In the said re-interview the respondent was the only eligible candidate in the merit panel. On the basis of the complaints made by other persons a one man Inquiry Commission was appointed. On the basis of the report of the Investigating Officer dated 6.2.2009 and 24.3.2009, it was found that there were lapses by the DO Coordinating Officer and the interview committee (L2), in not accepting the duplicate of the original mark-sheet of a candidate as detailed in the Inquiry Officer report in tabulation. (d) The record further shows that the respondent submitted a representation before the Chairman of the Company on 24.8.2009 with the reminder filed on different dates including the one dated 23.1.2010. The Senior Divisional Retail Sales Manager by communication dated 3.06.2010 informed the respondent that “on perusing the application and the accompanying documents it is observed that Relationship Affidavit not as per format. We regret that in view of the same your application is found ineligible.” In the aforesaid background, the DGM (RC) by its note dated 13.8.2009 rejected the opinion submitted by the Office for re-interview. 15. It is not clear as to how the assessment was made by the authorities as apparent from the investigation report (Annexure-R6). The Investigating Officer in the summary of investigation submitted his conclusion, the relevant potion of which reads as follows: “Summary of Investigation: Based on documents provided/handed over by DO, as also application the policy guidelines RO/6002 dt. 7.4.2005 & 4.4.2006 the following is the conclusion: A) L-1 Committee has not strictly followed the guidelines regarding signing of all documents for assessment. However, irrespective of this deviation, L-1 Committee has considered all documents for assessment. B) In case of ‘Liquid Cash in the form of Bank Fixed Deposit etc. and ‘Fixed and Movable Assets” as detailed in my report, for financial capability, the L-1 Committee, Screening Committee has given weight-age to documents of family members/ relatives even though ‘No Consent’ affidavit/letter is available. Therefore, in my final assessment, in line with the policy ‘No weight-age has been given to documents without consent. Therefore final marks have undergone change. Hence in line with the above the final result is as under: As per Interview Committee (in line with merit): Sr.Name of candidateTotal No.marks 1.Shri Nilesh Laxmikant Kudalkar56.50 2.Dr. Ashok Shankarlal55.33 Gwalani 3.Shri K. Srinadharao54.33 As per Screening Committee (in line with merit): Sr.Name of candidateTotal No.marks 1.Shri Nilesh Laxmikant59.0 Kudalkar 2.Shri K. Srinadharao57.0 3.Dr. Ashok Shankarlal52.0 Gwalani As per Investigation (in line with merit): Sr.Name of candidateTotal No.marks 1.Dr. Ashok Shankarlal56.78 Gwalani 2.Shri K. Srinadharao53.63 3.Shri Nilesh Laxmikant48.52 Kudalkar From the aforesaid report, it is clear that the Interview Committee, Screening Committee and the Investigation Officer assessed the three candidates in three different groups due to which the position of the candidates changed in the merit list prepared by the Interview Committee, Screening Committee and the investigation Officer.16. In the present case, the High Court has not noticed and discussed the aforesaid facts and without discussing the further developments as taken place after 24.12.2008, directed the appellants to issue the Letter of Intent in favour of the respondent. Though the High Court noticed the stand taken by the appellants that the ‘relationship affidavit’ submitted by the respondent was not as per format, it failed to discuss the effect of such an incomplete affidavit in the matter of selection.17. Generally, if an irregularity is detected in the matter of selection or preparation of a panel it is desirable to have a fresh selection instead of re-arranging the panel which is found to be vitiated. The Authority empowered to appoint, is the competent authority to decide as to whether the panel should be discarded and there should be a fresh selection in view of the facts narrated above. In such circumstances, the High Court under Article 226 of the Constitution of India ought to not have interfered with the decision of the competent authority in canceling the selection.18. For the reasons aforesaid, we have no other option but to set aside the order of the High Court.
### Response:
1
### Explanation:
is clear that the Interview Committee, Screening Committee and the Investigation Officer assessed the three candidates in three different groups due to which the position of the candidates changed in the merit list prepared by the Interview Committee, Screening Committee and the investigation Officer.16. In the present case, the High Court has not noticed and discussed the aforesaid facts and without discussing the further developments as taken place after 24.12.2008, directed the appellants to issue the Letter of Intent in favour of the respondent. Though the High Court noticed the stand taken by the appellants that the ‘relationshipsubmitted by the respondent was not as per format, it failed to discuss the effect of such an incomplete affidavit in the matter of selection.17. Generally, if an irregularity is detected in the matter of selection or preparation of a panel it is desirable to have a fresh selection instead of re-arranging the panel which is found to be vitiated. The Authority empowered to appoint, is the competent authority to decide as to whether the panel should be discarded and there should be a fresh selection in view of the facts narrated above. In such circumstances, the High Court under Article 226 of the Constitution of India ought to not have interfered with the decision of the competent authority in canceling the selection.18. For the reasons aforesaid, we have no other option but to set aside the order of the High Court.
|
Sri Dwarka Nath Tewari & Ors Vs. State Of Bihar & Ors | finances of the school properly. The following clause may be added after rule (f) : For reasons specified in clause (e) the Board instead of withdrawing or withholding recognition may withdraw its approval of the constitution of the managing committee and make such arrangement for the management of the school as it considers suitable peading reconstitution of the Managing Committee." * 8. It is not necessary for us to pronounce upon the controversy raised on behalf of the petitioners, founded on the Note under the original Art. 182, that the rules contained in that article did not apply to High English Schools, like the one in question. We shall proceed on the assumption that Art. 182 of the Code, as a amended, applied to the school in question. Nor have we thought it necessary to refer, in detail, to the decision of the Division Bench of the Patna High Court in Bhim Chandra Mahto v. Deputy Director of Education (Secondary), Bihar, (S) 1956 AIR(PAT) 81, because we are basing our judgment on the admissions made either in the pleadings or at the bar. 9. As already indicated, proceeding on the assumption that the land and the building of the school, are vested in the petitioners as the Managing Committee of the school, have the petitioners been divested of their rights by authority of law, under Art. 31 (1) of the Constitution ? If the amended Art. 182 of the Code, extracted above, is law within, the meaning of the article aforesaid of the Constitution, the petitioners cannot have any just complaint if they have been or are being deprived of those properties, because it is clear that the petitioners are holding the properties not in their individual absolute rights but only as trustees, for the purposes of the school. They have the properties vested in them because they are the Managing Committee. If they have been divested of those rights by the authority of law, this petition under Art. 32 of the Constitution must stand dismissed. If, on the other hand, the amended Art. 182 of the Education Code, is not law within the meaning of Art. 13 of the Constitution, then the petitioners cannot be deprived of their right to hold the properties as trustees, by a mere fiat of the officials of the Government of Bihar. Though, in the affidavits sworn on behalf of the respondents, it was claimed that the provisions of the Bihar Education Code, had the force of law, it has been conceded by the learned Solicitor-General, appearing on behalf of the respondents, that he could not justify that contention. The preface to the latest edition (7th Edition) printed in 1957, of the Bihar Education Code (1944), contains the following statement by the then Director of Public Instruction, Bihar : " The Bihar Education Code is compiled in the office of the Director of Public Instruction, Bihar, and is issued under his authority. Those articles, below which no. reference to higher authority is cited, have the same authority as circular and other orders of the Director." * It is clear, therefore, from the portion of the preface extracted above, that Art. 182 of the Code has no. greater sanction than an administrative order or rule, and is not based on any statutory authority or other authority which could give it the force of law. Naturally, therefore, the learned Solicitor General, with his usual fairness, conceded that the article relied upon by the respondents as having the force of law, has no. such force, and could not, therefore, deprive the petitioners of their rights in the properties aforesaid. 10. The only other question which remains to be determined, is whether the petitioners have made out any grounds for interference by this Court with the orders passed by the respondents and impugned in this case. In para. 34 of the petition, it is stated that "The petitioners further apprehend that if charge is not given over as requested in the said letter, possession will be taken by force with the aid of the police and local executive authorities." * That this apprehension on the part of the petitioners is not a mere figment of imagination, is brought out by the following endorsement dated December 25, 1957, on the letter of that date, from the Inspector of Schools, Tirahut Division, to the Secretary, Board of Secondary Education, Bihar, which may better be reproduced in extenso : "From The Inspector of Schools, Tirahut Division. To The Secretary, Board of Secondary Education Bihar, Patna. Muzaffarpur, the 25th December, 1957. Sub : Appeal case of Shri Sheo Kumar Mishra Sharma. Sir, I am to refer you to letter No. 1245 dated the 22nd December 1957 from the District Inspector of Schools, Saran, regarding flouting of the Government orders by the authorities of the Parsa High School. Consequent upon this action of the Committee, it is dissolved and an ad hoc committee consisting of the following persons formed to look after the management of the school : 1. Circle Officer, Parsa President 2. Dy. Inspector of Schools, Sadar ChapraSecretary 3. Distt. Superintendent of Education, SaranMember It may be approved. Yours faithfully, Sd./. H. N. Chaudhary. Inspector of Schools, Tirahut Division. Memo. No. 4965 Muzaffarpur, the 25th December, 1957. Copy forwarded to the District Inspector of Schools, Saran, Distt. Superintendent of Education, Saran, Dy Inspector of Schools, Sadar, Chapra and Circle Officer, Parsa, for information and guidance. They are requested to see that the Govt. order is implemented. The District Inspector of Schools, Saran will please take the help of local Executive, in case of necessity. Sd./- Illegible. 2 5. 12 Inspector of Schools, Tirhut Divn." 11. The endorsement aforesaid to the District Inspector of Schools and other officers mentioned therein, shows that they were authorized by the Inspector of Schools to seek the aid of the local executive authorities in the event of the Managing Committee not making over complete charge of the School which, in the context, includes the buildings also. | 1[ds]The counsel for the respondents was not able to point out any allegations in their affidavits denying those allegations. It must, therefore, be taken, for the purposes of this case, that the fact is admitted on behalf of the respondents that the Managing Committee purchased the land, and constructed the building for the school on that land, and that the Committee is the proprietor of the building and the land on which the building stands. But it is a little difficult to appreciate in what way the Committee can claim to be the "owner of the School, " apart from the land and the building. We must, therefore, proceed on the assumption that the petitioners are the proprietors of the land and the building of the school as trustees but certainly not as beneficial owners in the sense in which property ordinarily is owned and possessed-that was not even claimed on behalf of the petitioners. The petitioners are, therefore, entitled, on that assumption, to hold the land and the building of the school as trustees for the purposes of the school. It is also clear, on the affidavits, that the Education Department of the Bihar Government, purported to divert the petitioners of their character as trustees in respect of the land and the building of the schoolIf the amended Art. 182 of the Code, extracted above, is law within, the meaning of the article aforesaid of the Constitution, the petitioners cannot have any just complaint if they have been or are being deprived of those properties, because it is clear that the petitioners are holding the properties not in their individual absolute rights but only as trustees, for the purposes of the school. They have the properties vested in them because they are the Managing Committee. If they have been divested of those rights by the authority of law, this petition under Art. 32 of the Constitution must stand dismissed. If, on the other hand, the amended Art. 182 of the Education Code, is not law within the meaning of Art. 13 of the Constitution, then the petitioners cannot be deprived of their right to hold the properties as trustees, by a mere fiat of the officials of the Government of BiharIt is clear, therefore, from the portion of the preface extracted above, that Art. 182 of the Code has no. greater sanction than an administrative order or rule, and is not based on any statutory authority or other authority which could give it the force of law. Naturally, therefore, the learned Solicitor General, with his usual fairness, conceded that the article relied upon by the respondents as having the force of law, has no. such force, and could not, therefore, deprive the petitioners of their rights in the properties aforesaid11. The endorsement aforesaid to the District Inspector of Schools and other officers mentioned therein, shows that they were authorized by the Inspector of Schools to seek the aid of the local executive authorities in the event of the Managing Committee not making over complete charge of the School which, in the context, includes the buildings also. | 1 | 4,353 | 585 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
finances of the school properly. The following clause may be added after rule (f) : For reasons specified in clause (e) the Board instead of withdrawing or withholding recognition may withdraw its approval of the constitution of the managing committee and make such arrangement for the management of the school as it considers suitable peading reconstitution of the Managing Committee." * 8. It is not necessary for us to pronounce upon the controversy raised on behalf of the petitioners, founded on the Note under the original Art. 182, that the rules contained in that article did not apply to High English Schools, like the one in question. We shall proceed on the assumption that Art. 182 of the Code, as a amended, applied to the school in question. Nor have we thought it necessary to refer, in detail, to the decision of the Division Bench of the Patna High Court in Bhim Chandra Mahto v. Deputy Director of Education (Secondary), Bihar, (S) 1956 AIR(PAT) 81, because we are basing our judgment on the admissions made either in the pleadings or at the bar. 9. As already indicated, proceeding on the assumption that the land and the building of the school, are vested in the petitioners as the Managing Committee of the school, have the petitioners been divested of their rights by authority of law, under Art. 31 (1) of the Constitution ? If the amended Art. 182 of the Code, extracted above, is law within, the meaning of the article aforesaid of the Constitution, the petitioners cannot have any just complaint if they have been or are being deprived of those properties, because it is clear that the petitioners are holding the properties not in their individual absolute rights but only as trustees, for the purposes of the school. They have the properties vested in them because they are the Managing Committee. If they have been divested of those rights by the authority of law, this petition under Art. 32 of the Constitution must stand dismissed. If, on the other hand, the amended Art. 182 of the Education Code, is not law within the meaning of Art. 13 of the Constitution, then the petitioners cannot be deprived of their right to hold the properties as trustees, by a mere fiat of the officials of the Government of Bihar. Though, in the affidavits sworn on behalf of the respondents, it was claimed that the provisions of the Bihar Education Code, had the force of law, it has been conceded by the learned Solicitor-General, appearing on behalf of the respondents, that he could not justify that contention. The preface to the latest edition (7th Edition) printed in 1957, of the Bihar Education Code (1944), contains the following statement by the then Director of Public Instruction, Bihar : " The Bihar Education Code is compiled in the office of the Director of Public Instruction, Bihar, and is issued under his authority. Those articles, below which no. reference to higher authority is cited, have the same authority as circular and other orders of the Director." * It is clear, therefore, from the portion of the preface extracted above, that Art. 182 of the Code has no. greater sanction than an administrative order or rule, and is not based on any statutory authority or other authority which could give it the force of law. Naturally, therefore, the learned Solicitor General, with his usual fairness, conceded that the article relied upon by the respondents as having the force of law, has no. such force, and could not, therefore, deprive the petitioners of their rights in the properties aforesaid. 10. The only other question which remains to be determined, is whether the petitioners have made out any grounds for interference by this Court with the orders passed by the respondents and impugned in this case. In para. 34 of the petition, it is stated that "The petitioners further apprehend that if charge is not given over as requested in the said letter, possession will be taken by force with the aid of the police and local executive authorities." * That this apprehension on the part of the petitioners is not a mere figment of imagination, is brought out by the following endorsement dated December 25, 1957, on the letter of that date, from the Inspector of Schools, Tirahut Division, to the Secretary, Board of Secondary Education, Bihar, which may better be reproduced in extenso : "From The Inspector of Schools, Tirahut Division. To The Secretary, Board of Secondary Education Bihar, Patna. Muzaffarpur, the 25th December, 1957. Sub : Appeal case of Shri Sheo Kumar Mishra Sharma. Sir, I am to refer you to letter No. 1245 dated the 22nd December 1957 from the District Inspector of Schools, Saran, regarding flouting of the Government orders by the authorities of the Parsa High School. Consequent upon this action of the Committee, it is dissolved and an ad hoc committee consisting of the following persons formed to look after the management of the school : 1. Circle Officer, Parsa President 2. Dy. Inspector of Schools, Sadar ChapraSecretary 3. Distt. Superintendent of Education, SaranMember It may be approved. Yours faithfully, Sd./. H. N. Chaudhary. Inspector of Schools, Tirahut Division. Memo. No. 4965 Muzaffarpur, the 25th December, 1957. Copy forwarded to the District Inspector of Schools, Saran, Distt. Superintendent of Education, Saran, Dy Inspector of Schools, Sadar, Chapra and Circle Officer, Parsa, for information and guidance. They are requested to see that the Govt. order is implemented. The District Inspector of Schools, Saran will please take the help of local Executive, in case of necessity. Sd./- Illegible. 2 5. 12 Inspector of Schools, Tirhut Divn." 11. The endorsement aforesaid to the District Inspector of Schools and other officers mentioned therein, shows that they were authorized by the Inspector of Schools to seek the aid of the local executive authorities in the event of the Managing Committee not making over complete charge of the School which, in the context, includes the buildings also.
### Response:
1
### Explanation:
The counsel for the respondents was not able to point out any allegations in their affidavits denying those allegations. It must, therefore, be taken, for the purposes of this case, that the fact is admitted on behalf of the respondents that the Managing Committee purchased the land, and constructed the building for the school on that land, and that the Committee is the proprietor of the building and the land on which the building stands. But it is a little difficult to appreciate in what way the Committee can claim to be the "owner of the School, " apart from the land and the building. We must, therefore, proceed on the assumption that the petitioners are the proprietors of the land and the building of the school as trustees but certainly not as beneficial owners in the sense in which property ordinarily is owned and possessed-that was not even claimed on behalf of the petitioners. The petitioners are, therefore, entitled, on that assumption, to hold the land and the building of the school as trustees for the purposes of the school. It is also clear, on the affidavits, that the Education Department of the Bihar Government, purported to divert the petitioners of their character as trustees in respect of the land and the building of the schoolIf the amended Art. 182 of the Code, extracted above, is law within, the meaning of the article aforesaid of the Constitution, the petitioners cannot have any just complaint if they have been or are being deprived of those properties, because it is clear that the petitioners are holding the properties not in their individual absolute rights but only as trustees, for the purposes of the school. They have the properties vested in them because they are the Managing Committee. If they have been divested of those rights by the authority of law, this petition under Art. 32 of the Constitution must stand dismissed. If, on the other hand, the amended Art. 182 of the Education Code, is not law within the meaning of Art. 13 of the Constitution, then the petitioners cannot be deprived of their right to hold the properties as trustees, by a mere fiat of the officials of the Government of BiharIt is clear, therefore, from the portion of the preface extracted above, that Art. 182 of the Code has no. greater sanction than an administrative order or rule, and is not based on any statutory authority or other authority which could give it the force of law. Naturally, therefore, the learned Solicitor General, with his usual fairness, conceded that the article relied upon by the respondents as having the force of law, has no. such force, and could not, therefore, deprive the petitioners of their rights in the properties aforesaid11. The endorsement aforesaid to the District Inspector of Schools and other officers mentioned therein, shows that they were authorized by the Inspector of Schools to seek the aid of the local executive authorities in the event of the Managing Committee not making over complete charge of the School which, in the context, includes the buildings also.
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Registrar Cooperative Societies, Punjab & Others Vs. Tek Chand | judgment of the Trial Court dated 12.11.1987. The District Judge held that the respondent should be deemed in continuous service from 22.03.1983 and was entitled to consequential reliefs as if his services had not been terminated. Being aggrieved by the judgment of the First Appellate Court, the appellants herein filed Regular Second Appeal No. RSA 1804 of 1990 (O&M) before the High Court of Punjab and Haryana at Chandigarh, which came to be partly allowed on 14.07.2016. The High Court set aside the judgment of the First Appellate Court to a certain extent i.e. in part. The operative portion of the judgment reads thus: 9. In view of these facts and circumstances, the order of the Appellate Court is set aside in so far as deemed to be in continuous service from that date, entitled to consequential reliefs as if his services had not been terminated. The Appellant shall also entitled to costs are concerned. The Appellant are directed to held an enquiry, in accordance with law with reference to decision taken for the purpose of regularization on 23.2.1983 after giving necessary hearing to the Respondent within a period of 6 months from today. 10. In the meanwhile, status of the Respondent would be deemed to be under suspension. In view of the decision of the Supreme Court passed in Managing Director ECIL v. B. Karunakar reported as 1994 SCC, Suppliers(2) 391. The Respondent is entitled for subsistence allowance as per the provisions. The same shall be calculated and disbursed within a period of 3 months and continue to pay subsistence allowance till a decision is taken in the enquiry. 11. Appeal stands disposed of. The appellants having been aggrieved by the judgment of the High Court are before us. Heard learned counsel and perused the records. 4. Annexure P-3 is the order of termination dated 22.03.1983 issued by the Appellants against the respondent. The very document was marked as Ex. D9 before the trial Court. According to the counsel for the respondent as well as according to the judgments of the First and Second Appellate Courts, termination order suffers from taint of being stigmatic in nature. Learned counsel for the respondent contends that the order affecting the services of an employee even though he may be ad-hoc, temporary or permanent, if is laden with some stigma has to be seen and scrutinized on the anvil of the provisions contained in Article 311 of the Constitution and the Service Rules applicable to such an employee. There is no doubt, that in case some adverse order against the public servant is to be passed, the justification of the same is to be seen through the eye of the provisions contained in the Constitution and Service Rules applicable to that servant regardless of the nature of his employment. What we have to see is as to whether the impugned order of terminating the services of the plaintiff/respondent herein suffers from any defect or violation or infraction of any Service Rules etc. Undoubtedly as pleaded by the plaintiff/respondent himself that he was appointed in Co-operation Department as clerk on ad-hoc basis on 26.05.1980 and there has been an extension of service but only on ad-hoc basis and ultimately on 22.03.1983 his services were terminated as per Annexure P-3. It is not disputed by the appellants that there is a policy decision by the Government of Punjab that the services of the employees with certain length of continuous service were to be regularized as one time measure, if such employees fulfill all the conditions laid therein. In the instant case, the appellants did not however, consider it proper to regularize the services of the plaintiff/respondent because in an enquiry held by them it was found that the services of the plaintiff/respondent were terminated by the Transport Department on account of some fraud/embezzlement committed by him (which fact was suppressed by him). In any case, the appellants never mentioned such fact in the impugned order, which is as harmless and innocuous as it could be. Translated copy of the termination order (Annexure P/3) as depicted in the judgment of the Trial court reads thus: The letter No. Admn./EA-3/452/414 dated 23.2.1983 from the office of the Registrar Co-Operative Societies, Punjab, Chandigarh conveys that in the proceedings taken in a meeting of the Departmental Selection Committee, your services have not been regularized, your temporary services are hereby terminated forthwith effect from the issue of this letter. Sd/- Deputy Registrar Co-Operative Societies, Rupnagar Endst. No.1321 Esstt/D.R.R. dated 22.3.1983 5. The afore-mentioned order of termination is plain and simple, it cannot be said that there is any stigma attached to the plaintiff by the order. Under the relevant Service Rules, the services of an ad-hoc employee like the plaintiff/respondent herein are liable to be terminated at any point of time as soon as the regular incumbent joins or after a period of only six months whichever is earlier or if his work and conduct is found unsatisfactory. Even as per the appointment letter of the respondent, the services of the respondent were liable to be terminated at any point of time when regular incumbent joins or after six months of his service whichever is earlier. Thus the order of termination is in accordance with the terms and conditions specified in the appointment letter. When the file was put up before the Departmental Scrutiny Committee for considering the case of the respondent for regularization of his services, the said Committee did not approve the case of the respondent for regularization. It did not mention any word in the order which depicts that the order of termination suffers from taint of being stigmatic in nature. Since nothing is mentioned in the order of termination about the act of the respondent suppressing his termination from the Transport Department on the grounds of fraud/embezzlement, it cannot be said that stigma was attached to the respondent. If it is so, no occasion arose for the Appellant-Department to conduct an enquiry afresh against the respondent. | 1[ds]There is no doubt, that in case some adverse order against the public servant is to be passed, the justification of the same is to be seen through the eye of the provisions contained in the Constitution and Service Rules applicable to that servant regardless of the nature of his employmentUndoubtedly as pleaded by the plaintiff/respondent himself that he was appointed inc basis on 26.05.1980 and there has been an extension of service but only onc basis and ultimately on 22.03.1983 his services were terminated as per Annexure. It is not disputed by the appellants that there is a policy decision by the Government of Punjab that the services of the employees with certain length of continuous service were to be regularized as one time measure, if such employees fulfill all the conditions laid therein. In the instant case, the appellants did not however, consider it proper to regularize the services of the plaintiff/respondent because in an enquiry held by them it was found that the services of the plaintiff/respondent were terminated by the Transport Department on account of some fraud/embezzlement committed by him (which fact was suppressed by him). In any case, the appellants never mentioned such fact in the impugned order, which is as harmless and innocuous as it could bed order of termination is plain and simple, it cannot be said that there is any stigma attached to the plaintiff by the order. Under the relevant Service Rules, the services of anc employee like the plaintiff/respondent herein are liable to be terminated at any point of time as soon as the regular incumbent joins or after a period of only six months whichever is earlier or if his work and conduct is found unsatisfactory. Even as per the appointment letter of the respondent, the services of the respondent were liable to be terminated at any point of time when regular incumbent joins or after six months of his service whichever is earlier. Thus the order of termination is in accordance with the terms and conditions specified in the appointment letter. When the file was put up before the Departmental Scrutiny Committee for considering the case of the respondent for regularization of his services, the said Committee did not approve the case of the respondent for regularization. It did not mention any word in the order which depicts that the order of termination suffers from taint of being stigmatic in nature. Since nothing is mentioned in the order of termination about the act of the respondent suppressing his termination from the Transport Department on the grounds of fraud/embezzlement, it cannot be said that stigma was attached to the respondent. If it is so, no occasion arose for thet to conduct an enquiry afresh against the respondent. | 1 | 1,535 | 490 | ### 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:
judgment of the Trial Court dated 12.11.1987. The District Judge held that the respondent should be deemed in continuous service from 22.03.1983 and was entitled to consequential reliefs as if his services had not been terminated. Being aggrieved by the judgment of the First Appellate Court, the appellants herein filed Regular Second Appeal No. RSA 1804 of 1990 (O&M) before the High Court of Punjab and Haryana at Chandigarh, which came to be partly allowed on 14.07.2016. The High Court set aside the judgment of the First Appellate Court to a certain extent i.e. in part. The operative portion of the judgment reads thus: 9. In view of these facts and circumstances, the order of the Appellate Court is set aside in so far as deemed to be in continuous service from that date, entitled to consequential reliefs as if his services had not been terminated. The Appellant shall also entitled to costs are concerned. The Appellant are directed to held an enquiry, in accordance with law with reference to decision taken for the purpose of regularization on 23.2.1983 after giving necessary hearing to the Respondent within a period of 6 months from today. 10. In the meanwhile, status of the Respondent would be deemed to be under suspension. In view of the decision of the Supreme Court passed in Managing Director ECIL v. B. Karunakar reported as 1994 SCC, Suppliers(2) 391. The Respondent is entitled for subsistence allowance as per the provisions. The same shall be calculated and disbursed within a period of 3 months and continue to pay subsistence allowance till a decision is taken in the enquiry. 11. Appeal stands disposed of. The appellants having been aggrieved by the judgment of the High Court are before us. Heard learned counsel and perused the records. 4. Annexure P-3 is the order of termination dated 22.03.1983 issued by the Appellants against the respondent. The very document was marked as Ex. D9 before the trial Court. According to the counsel for the respondent as well as according to the judgments of the First and Second Appellate Courts, termination order suffers from taint of being stigmatic in nature. Learned counsel for the respondent contends that the order affecting the services of an employee even though he may be ad-hoc, temporary or permanent, if is laden with some stigma has to be seen and scrutinized on the anvil of the provisions contained in Article 311 of the Constitution and the Service Rules applicable to such an employee. There is no doubt, that in case some adverse order against the public servant is to be passed, the justification of the same is to be seen through the eye of the provisions contained in the Constitution and Service Rules applicable to that servant regardless of the nature of his employment. What we have to see is as to whether the impugned order of terminating the services of the plaintiff/respondent herein suffers from any defect or violation or infraction of any Service Rules etc. Undoubtedly as pleaded by the plaintiff/respondent himself that he was appointed in Co-operation Department as clerk on ad-hoc basis on 26.05.1980 and there has been an extension of service but only on ad-hoc basis and ultimately on 22.03.1983 his services were terminated as per Annexure P-3. It is not disputed by the appellants that there is a policy decision by the Government of Punjab that the services of the employees with certain length of continuous service were to be regularized as one time measure, if such employees fulfill all the conditions laid therein. In the instant case, the appellants did not however, consider it proper to regularize the services of the plaintiff/respondent because in an enquiry held by them it was found that the services of the plaintiff/respondent were terminated by the Transport Department on account of some fraud/embezzlement committed by him (which fact was suppressed by him). In any case, the appellants never mentioned such fact in the impugned order, which is as harmless and innocuous as it could be. Translated copy of the termination order (Annexure P/3) as depicted in the judgment of the Trial court reads thus: The letter No. Admn./EA-3/452/414 dated 23.2.1983 from the office of the Registrar Co-Operative Societies, Punjab, Chandigarh conveys that in the proceedings taken in a meeting of the Departmental Selection Committee, your services have not been regularized, your temporary services are hereby terminated forthwith effect from the issue of this letter. Sd/- Deputy Registrar Co-Operative Societies, Rupnagar Endst. No.1321 Esstt/D.R.R. dated 22.3.1983 5. The afore-mentioned order of termination is plain and simple, it cannot be said that there is any stigma attached to the plaintiff by the order. Under the relevant Service Rules, the services of an ad-hoc employee like the plaintiff/respondent herein are liable to be terminated at any point of time as soon as the regular incumbent joins or after a period of only six months whichever is earlier or if his work and conduct is found unsatisfactory. Even as per the appointment letter of the respondent, the services of the respondent were liable to be terminated at any point of time when regular incumbent joins or after six months of his service whichever is earlier. Thus the order of termination is in accordance with the terms and conditions specified in the appointment letter. When the file was put up before the Departmental Scrutiny Committee for considering the case of the respondent for regularization of his services, the said Committee did not approve the case of the respondent for regularization. It did not mention any word in the order which depicts that the order of termination suffers from taint of being stigmatic in nature. Since nothing is mentioned in the order of termination about the act of the respondent suppressing his termination from the Transport Department on the grounds of fraud/embezzlement, it cannot be said that stigma was attached to the respondent. If it is so, no occasion arose for the Appellant-Department to conduct an enquiry afresh against the respondent.
### Response:
1
### Explanation:
There is no doubt, that in case some adverse order against the public servant is to be passed, the justification of the same is to be seen through the eye of the provisions contained in the Constitution and Service Rules applicable to that servant regardless of the nature of his employmentUndoubtedly as pleaded by the plaintiff/respondent himself that he was appointed inc basis on 26.05.1980 and there has been an extension of service but only onc basis and ultimately on 22.03.1983 his services were terminated as per Annexure. It is not disputed by the appellants that there is a policy decision by the Government of Punjab that the services of the employees with certain length of continuous service were to be regularized as one time measure, if such employees fulfill all the conditions laid therein. In the instant case, the appellants did not however, consider it proper to regularize the services of the plaintiff/respondent because in an enquiry held by them it was found that the services of the plaintiff/respondent were terminated by the Transport Department on account of some fraud/embezzlement committed by him (which fact was suppressed by him). In any case, the appellants never mentioned such fact in the impugned order, which is as harmless and innocuous as it could bed order of termination is plain and simple, it cannot be said that there is any stigma attached to the plaintiff by the order. Under the relevant Service Rules, the services of anc employee like the plaintiff/respondent herein are liable to be terminated at any point of time as soon as the regular incumbent joins or after a period of only six months whichever is earlier or if his work and conduct is found unsatisfactory. Even as per the appointment letter of the respondent, the services of the respondent were liable to be terminated at any point of time when regular incumbent joins or after six months of his service whichever is earlier. Thus the order of termination is in accordance with the terms and conditions specified in the appointment letter. When the file was put up before the Departmental Scrutiny Committee for considering the case of the respondent for regularization of his services, the said Committee did not approve the case of the respondent for regularization. It did not mention any word in the order which depicts that the order of termination suffers from taint of being stigmatic in nature. Since nothing is mentioned in the order of termination about the act of the respondent suppressing his termination from the Transport Department on the grounds of fraud/embezzlement, it cannot be said that stigma was attached to the respondent. If it is so, no occasion arose for thet to conduct an enquiry afresh against the respondent.
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Rajasthan Welfare Society Vs. State Of Rajasthan | teachers of non-Government aided educational institutions are not entitled to gratuity. The appellants liability to pay the gratuity under Section 4 of the Gratuity Act cannot be doubted. The only question is whether appellant is entitled to include the proportionate amount of gratuity in the approved expenditure for the purposes of computation of grant in aid. For this purpose, we have to consider the provisions of the Act and the Rules. 12. Section 7 of the Act stipulates that no aid can be claimed as a matter of right and the aid may cover such part of the expenditure of the institution as may be prescribed. The prescribed expenditure is as contained in the Rules. Under Rule 14, the approved expenditure can relate to only items from (a) to (v) mentioned therein. It is nobodys case that the expenditure on gratuity falls under items (b) to (v). Under Item (a) only expenditure on actual salary and provident fund contribution not exceeding 8.33% in respect of teaching and non-teaching staff can be included. The contention urged is that the gratuity is part of salary. We are unable to age. The amount to be paid as a gratuity in terms of Section 4 of the Gratuity Act, under no circumstances, can be said to be a part of "actual salary" as postulated by Rule 14. Further, some of the items (b) to (v), wherever recurring or non-recurring expenditure is to form part of approved expenditure, specifically provide for it. Admittedly, the expenditure on gratuity does not fall under Items (b) t (v) as the only contention urged was that it falls under Rule 14(a). 13. The position becomes further clear on a plain reading of Note 2 appended to Rule 14. It is clear that ordinarily the charges on account of payment of gratuity paid to former teachers are not admitted for the purpose of grant-in-aid unless the Rules on the subject are approved by the Government. The words the rules on the subject" in Note 2 cannot be interpreted to mean rule contained in other part of the Rules, namely, Rule 82. We are unable to accept the contention that Rule 82 would be the rule on the subject approved by the Government. If Rule 82 is to be interpreted as a rule approved by the Government to contribute the amount of gratuity while computing grant-in-aid, the question of appending Note2 would not have arisen. Clearly, Note2 refers to Rules framed by Non-Government Educational Institutions which are to be approved by the Government and not the Government itself making the Rules and approving the same. As already stated, Rule 82 only makes it obligatory for aided educational institutions to pay gratuity to their employees in accordance with the Gratuity Act. 14. The gratuity cannot be termed to be an emolument for the time being payable to the employees so as to come within the definition of salary defined in Section 2(r) of the Act. Further, Rule 14 uses the word actual salary. Be that as it may, it seems clear the non-recurring payment of this nature cannot be included in the definition of salary. Gratuity is payable at the time of retirement/termination of the employment. Reliance on the decision in the case of Metal Box Company of India Limited vs. Their Workmen [(1969) 1 SCR 790] can render little assistance to the appellant. It is case under Payment of Bonus Act. It was only dealing with accountancy principles. Observations were made that an estimated liability under the gratuity schemes even if it amounts to a contingent liability and is not a debt under the Wealth Tax Act, if properly ascertainable and its present value is fairly discounted, is deductible from the gross receipts while preparing the profits and loss account. In trading circles or in rule or direction in the Bonus Act, there was no prohibition from such a practice. The question in that case was whether while working out the net profits the trader can provide from his gross receipts his liability to pay a certain sum for every additional year of service which he receives from his employees. It was answered in affirmative. If such liability was properly ascertainable, it was possible to arrive at a proper discounted value. This decision, in our view, is not relevant to determine the point in issue in the present case. 15. Further, gratuity cannot be included in the approved expenditure as under Rule 9 the State Government can section the grants under for Heads provided therein and gratuity does not fall under any one of them. It is not claimed that the gratuity falls under Heads 2 to 4. The Head No.1 is maintenance or recurring grant. Admittedly a gratuity cannot come under the category of maintenance. It is also not a recurring grant as already noticed hereinbefore. It is, thus, clear that payment of gratuity cannot come under any of the four categories mentioned in Rule 9. 16. In view of the aforesaid, the gratuity within the meaning of the Act and the Rules cannot form part of recurring grant. It is not includable as part of approved expenditure for the purposes of computing the amount of grant payable to the appellant. In this view, communication dated 26th May, 1994 of Government of Rajasthan to the effect that the Rules do not provide for grant-in-aid on amount of gratuity, the same being not included in the approved expenditures, cannot b held to be illegal. This will, however, not affect the rights of the employees to get the gratuity from the concerned institution. 17. Before parting, we wish to note that if representations are made by aided Non-Government Educational Institutions, the State Government would consider sympathetically the question of the gratuity amount payable to the employees being taken into consideration for the purpose of computing the amount of grant-in-aid. We, however, clarify that pending making of such representation and its consideration, the payment of gratuity to the employees shall not be delayed. | 0[ds]It was answered in affirmative. If such liability was properly ascertainable, it was possible to arrive at a proper discounted value. This decision, in our view, is not relevant to determine the point in issue in the present case16. In view of the aforesaid, the gratuity within the meaning of the Act and the Rules cannot form part of recurring grant. It is not includable as part of approved expenditure for the purposes of computing the amount of grant payable to the appellant. In this view, communication dated 26th May, 1994 of Government of Rajasthan to the effect that the Rules do not provide for grant-in-aid on amount of gratuity, the same being not included in the approved expenditures, cannot b held to be illegal. This will, however, not affect the rights of the employees to get the gratuity from the concerned institution17. Before parting, we wish to note that if representations are made by aided Non-Government Educational Institutions, the State Government would consider sympathetically the question of the gratuity amount payable to the employees being taken into consideration for the purpose of computing the amount of grant-in-aid. We, however, clarify that pending making of such representation and its consideration, the payment of gratuity to the employees shall not be delayed | 0 | 2,654 | 240 | ### 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:
teachers of non-Government aided educational institutions are not entitled to gratuity. The appellants liability to pay the gratuity under Section 4 of the Gratuity Act cannot be doubted. The only question is whether appellant is entitled to include the proportionate amount of gratuity in the approved expenditure for the purposes of computation of grant in aid. For this purpose, we have to consider the provisions of the Act and the Rules. 12. Section 7 of the Act stipulates that no aid can be claimed as a matter of right and the aid may cover such part of the expenditure of the institution as may be prescribed. The prescribed expenditure is as contained in the Rules. Under Rule 14, the approved expenditure can relate to only items from (a) to (v) mentioned therein. It is nobodys case that the expenditure on gratuity falls under items (b) to (v). Under Item (a) only expenditure on actual salary and provident fund contribution not exceeding 8.33% in respect of teaching and non-teaching staff can be included. The contention urged is that the gratuity is part of salary. We are unable to age. The amount to be paid as a gratuity in terms of Section 4 of the Gratuity Act, under no circumstances, can be said to be a part of "actual salary" as postulated by Rule 14. Further, some of the items (b) to (v), wherever recurring or non-recurring expenditure is to form part of approved expenditure, specifically provide for it. Admittedly, the expenditure on gratuity does not fall under Items (b) t (v) as the only contention urged was that it falls under Rule 14(a). 13. The position becomes further clear on a plain reading of Note 2 appended to Rule 14. It is clear that ordinarily the charges on account of payment of gratuity paid to former teachers are not admitted for the purpose of grant-in-aid unless the Rules on the subject are approved by the Government. The words the rules on the subject" in Note 2 cannot be interpreted to mean rule contained in other part of the Rules, namely, Rule 82. We are unable to accept the contention that Rule 82 would be the rule on the subject approved by the Government. If Rule 82 is to be interpreted as a rule approved by the Government to contribute the amount of gratuity while computing grant-in-aid, the question of appending Note2 would not have arisen. Clearly, Note2 refers to Rules framed by Non-Government Educational Institutions which are to be approved by the Government and not the Government itself making the Rules and approving the same. As already stated, Rule 82 only makes it obligatory for aided educational institutions to pay gratuity to their employees in accordance with the Gratuity Act. 14. The gratuity cannot be termed to be an emolument for the time being payable to the employees so as to come within the definition of salary defined in Section 2(r) of the Act. Further, Rule 14 uses the word actual salary. Be that as it may, it seems clear the non-recurring payment of this nature cannot be included in the definition of salary. Gratuity is payable at the time of retirement/termination of the employment. Reliance on the decision in the case of Metal Box Company of India Limited vs. Their Workmen [(1969) 1 SCR 790] can render little assistance to the appellant. It is case under Payment of Bonus Act. It was only dealing with accountancy principles. Observations were made that an estimated liability under the gratuity schemes even if it amounts to a contingent liability and is not a debt under the Wealth Tax Act, if properly ascertainable and its present value is fairly discounted, is deductible from the gross receipts while preparing the profits and loss account. In trading circles or in rule or direction in the Bonus Act, there was no prohibition from such a practice. The question in that case was whether while working out the net profits the trader can provide from his gross receipts his liability to pay a certain sum for every additional year of service which he receives from his employees. It was answered in affirmative. If such liability was properly ascertainable, it was possible to arrive at a proper discounted value. This decision, in our view, is not relevant to determine the point in issue in the present case. 15. Further, gratuity cannot be included in the approved expenditure as under Rule 9 the State Government can section the grants under for Heads provided therein and gratuity does not fall under any one of them. It is not claimed that the gratuity falls under Heads 2 to 4. The Head No.1 is maintenance or recurring grant. Admittedly a gratuity cannot come under the category of maintenance. It is also not a recurring grant as already noticed hereinbefore. It is, thus, clear that payment of gratuity cannot come under any of the four categories mentioned in Rule 9. 16. In view of the aforesaid, the gratuity within the meaning of the Act and the Rules cannot form part of recurring grant. It is not includable as part of approved expenditure for the purposes of computing the amount of grant payable to the appellant. In this view, communication dated 26th May, 1994 of Government of Rajasthan to the effect that the Rules do not provide for grant-in-aid on amount of gratuity, the same being not included in the approved expenditures, cannot b held to be illegal. This will, however, not affect the rights of the employees to get the gratuity from the concerned institution. 17. Before parting, we wish to note that if representations are made by aided Non-Government Educational Institutions, the State Government would consider sympathetically the question of the gratuity amount payable to the employees being taken into consideration for the purpose of computing the amount of grant-in-aid. We, however, clarify that pending making of such representation and its consideration, the payment of gratuity to the employees shall not be delayed.
### Response:
0
### Explanation:
It was answered in affirmative. If such liability was properly ascertainable, it was possible to arrive at a proper discounted value. This decision, in our view, is not relevant to determine the point in issue in the present case16. In view of the aforesaid, the gratuity within the meaning of the Act and the Rules cannot form part of recurring grant. It is not includable as part of approved expenditure for the purposes of computing the amount of grant payable to the appellant. In this view, communication dated 26th May, 1994 of Government of Rajasthan to the effect that the Rules do not provide for grant-in-aid on amount of gratuity, the same being not included in the approved expenditures, cannot b held to be illegal. This will, however, not affect the rights of the employees to get the gratuity from the concerned institution17. Before parting, we wish to note that if representations are made by aided Non-Government Educational Institutions, the State Government would consider sympathetically the question of the gratuity amount payable to the employees being taken into consideration for the purpose of computing the amount of grant-in-aid. We, however, clarify that pending making of such representation and its consideration, the payment of gratuity to the employees shall not be delayed
|
Duncan Industries Ltd. Vs. Union Of India | the manufacturers had agreed to abide by the decision of the FIC Committee, on all matters relating to determination of the Retention Price as being "final and binding" upon them. In the light of this, the argument of estoppel is actually the boot on the other foot. 38. Moreover, even if we were to assume for a moment that certain returns have been assured, and that this assurance is binding on the Government, we are not satisfied that the assurance has actually been breached. We agree with the High Court that there are too many imponderables and too many disputed questions of fact for an effective decision in a writ proceeding on this issue. In our view, therefore, this contention of the learned counsel for the appellants must also fail. Reasonableness and Legitimate Expectation 39. Dr. Dhavan next contended that the retrospective application of the new policy parameters by the FIC Committee is `arbitrary, `unreasonable and against the Doctrine of Legitimate Expectation. Learned counsel contends that since the Government controls the retail price of fertilizer, it would be `unfair, `unreasonable and violative of Article 14 for them to revise the scheme of subsidies, so that there would be losses caused to fertilizer manufacturers. In our view, this contention has no merit for both the facts and the applicable legal principles indicate that there is nothing arbitrary or unreasonable in what the FIC Committee has done. 40. At the outset, the material placed on record clearly demonstrates that the representatives of the First Appellant were party to the deliberations before the FIC Committee, who explained the material particulars regarding the manner of working out the Retention Price for the Seventh and Eighth pricing periods. The minutes of the said discussions, read with the correspondence between the parties pertaining to the Retention Price fixation for the Seventh and Eighth pricing periods, leave no doubt that the First Appellant was party to what was being done. Further, at no point, during the discussions or in the subsequent correspondence, did the First Appellant question the validity or correctness of the manner of fixation of the Retention Price (except on some minor issue like bank interest charges). 41. Dr. Dhavan cited a number of authorities to support his argument. However, these cases pertain to situations where tax exemptions, which were already granted and pursuant to which transactions had been held, were retrospectively withdrawn. Other authorities also pertained to setting up of industries in backward areas on promises of rebate/concessions. In our view, none of these authorities is of any assistance for resolving the issue before us, which is purely a consensual working arrangement between the Government and fertilizer manufacturers. The argument of `legitimate expectation, in our view, cannot have application to the present case. As we have said, the Scheme was a voluntary one, and having agreed to abide by the decision of the Government, there is no question of the appellants `legitimate expectations being belied. 42. Turning to the Article 14 argument, we emphatically reiterate the now-accepted position that Article 14 does not require this Court to examine the intricacies of an economic scheme or pricing policy for its merits or its correctness, for that is in the domain of the executive or the legislative branches of the Government. [See, e.g. BALCO Employees Union (Regd.) vs. Union of India, (2002) 2 SCC 333 at pp. 362-363 (paragraphs 46, 47), 381-382 (paragraphs 92, 93); Bhavesh D. Parish vs. Union of India, (2000) 5 SCC 471 at pp. 484-485 paragraph 23); Peerless General Finance and Investment Co. Ltd. vs. Reserve Bank of India, (1992) 2 SCC 343 at p. 397 (paragraphs 69 and 70); State of M.P. vs. Nandlal Jaiswal, (1986) 4 SCC 566 at pp.605-606 (paragraph 34); Premji Bhai Parmar vs. Delhi Development Authority, (1980) 2 SCC 129 at pp. 137-139 (paragraph 9)]. Indeed, even if the Scheme, as revised, is "unwise" or even "unjust", there is no recourse before us for, as Justice Homles elegantly put it: "We fully understand... the very powerful argument that can be made against the wisdom of the legislation, but on that point we have nothing to say, as it is not our concern." Noble State Bank vs. IIaskell, 219 US 575 at p. 580 (1910). We are broadly in concurrence with the reasoning of the High Court that in matters of administrative discretion it is not open to the courts to interfere in minute details except on grounds of mala fides or extreme arbitrariness. Interference should be only within very narrow limits, such as, where there is a clear violation of a statute or a constitutional provision, or extreme arbitrariness in the Wednesbury Associated Provincial Picture Houses Ltd. vs. Wednesbury Corporation, [1948] 1 KB 223. sense. Neither the High Court nor we have found any of these vitiating factors in the administration of the Retention Price Scheme and the consequent payments/recoveries of the subsidy amounts. Thus, in our view, the action of the FIC Committee to adversely modify the subsidies framework, cannot be questioned on its merits. The case of M/s Nagarjuna Fertilizers 43. The learned Additional Solicitor General brought to our notice that, out of all the concerned fertilizer manufacturing units, only two units have challenged the Retention Price Scheme for the relevant periods. One of the these is the First Appellant and the other was M/s Nagarjuna Fertilisers and Chemicals Ltd. (hereinafter "Nagarjuna Fertilizers"). Nagarjuna Fertilizers had filed SLP (Civil) No. 20721/2003 against the judgment of the High Court of Andhra Pradesh dismissing its Writ Petition No. 18242/2002 (dated 25.7.2003). This SLP was, however, summarily dismissed by this Court through order dated 17.11.2003. Although, we have carefully applied our mind to the case of the First Appellant, independent of the outcome in the case of Nagarjuna Fertilizers, we find that the two cases are actually indistinguishable on facts and the present case should have also been similarly dismissed. In any event, after a detailed examination, we have arrived at the same result. The Final Findings 44. | 0[ds]Dr. Dhavan next contended that the retrospective application of the new policy parameters by the FIC Committee is `arbitrary, `unreasonable and against the Doctrine of Legitimate Expectation. Learned counsel contends that since the Government controls the retail price of fertilizer, it would be `unfair, `unreasonable and violative of Article 14 for them to revise the scheme of subsidies, so that there would be losses caused to fertilizer manufacturers. In our view, this contention has no merit for both the facts and the applicable legal principles indicate that there is nothing arbitrary or unreasonable in what the FIC Committee has doneAt the outset, the material placed on record clearly demonstrates that the representatives of the First Appellant were party to the deliberations before the FIC Committee, who explained the material particulars regarding the manner of working out the Retention Price for the Seventh and Eighth pricing periods. The minutes of the said discussions, read with the correspondence between the parties pertaining to the Retention Price fixation for the Seventh and Eighth pricing periods, leave no doubt that the First Appellant was party to what was being done. Further, at no point, during the discussions or in the subsequent correspondence, did the First Appellant question the validity or correctness of the manner of fixation of the Retention Price (except on some minor issue like bank interest charges). Dr. Dhavan cited a number of authorities to support his argument. However, these cases pertain to situations where tax exemptions, which were already granted and pursuant to which transactions had been held, were retrospectively withdrawn. Other authorities also pertained to setting up of industries in backward areas on promises of rebate/concessions. In our view, none of these authorities is of any assistance for resolving the issue before us, which is purely a consensual working arrangement between the Government and fertilizer manufacturers. The argument of `legitimate expectation, in our view, cannot have application to the present case. As we have said, the Scheme was a voluntary one, and having agreed to abide by the decision of the Government, there is no question of the appellants `legitimate expectations being belied. Turning to the Article 14 argument, we emphatically reiterate the now-accepted position that Article 14 does not require this Court to examine the intricacies of an economic scheme or pricing policy for its merits or its correctness, for that is in the domain of the executive or the legislative branches of the Government. [See, e.g. BALCO Employees Union (Regd.) vs. Union of India, (2002) 2 SCC 333 at pp. 362-363 (paragraphs 46, 47), 381-382 (paragraphs 92, 93); Bhavesh D. Parish vs. Union of India, (2000) 5 SCC 471 at pp. 484-485 paragraph 23); Peerless General Finance and Investment Co. Ltd. vs. Reserve Bank of India, (1992) 2 SCC 343 at p. 397 (paragraphs 69 and 70); State of M.P. vs. Nandlal Jaiswal, (1986) 4 SCC 566 at pp.605-606 (paragraph 34); Premji Bhai Parmar vs. Delhi Development Authority, (1980) 2 SCC 129 at pp. 137-139 (paragraph 9)]. Indeed, even if the Scheme, as revised, is "unwise" or even "unjust", there is no recourse before us for, as Justice Homles elegantly put it:"We fully understand... the very powerful argument that can be made against the wisdom of the legislation, but on that point we have nothing to say, as it is not our concern."Noble State Bank vs. IIaskell, 219 US 575 at p. 580 (1910)We are broadly in concurrence with the reasoning of the High Court that in matters of administrative discretion it is not open to the courts to interfere in minute details except on grounds of mala fides or extreme arbitrariness. Interference should be only within very narrow limits, such as, where there is a clear violation of a statute or a constitutional provision, or extreme arbitrariness in the Wednesbury Associated Provincial Picture Houses Ltd. vs. Wednesbury Corporation, [1948] 1 KB 223. sense. Neither the High Court nor we have found any of these vitiating factors in the administration of the Retention Price Scheme and the consequent payments/recoveries of the subsidy amounts. Thus, in our view, the action of the FIC Committee to adversely modify the subsidies framework, cannot be questioned on its merits | 0 | 5,868 | 826 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
### Input:
the manufacturers had agreed to abide by the decision of the FIC Committee, on all matters relating to determination of the Retention Price as being "final and binding" upon them. In the light of this, the argument of estoppel is actually the boot on the other foot. 38. Moreover, even if we were to assume for a moment that certain returns have been assured, and that this assurance is binding on the Government, we are not satisfied that the assurance has actually been breached. We agree with the High Court that there are too many imponderables and too many disputed questions of fact for an effective decision in a writ proceeding on this issue. In our view, therefore, this contention of the learned counsel for the appellants must also fail. Reasonableness and Legitimate Expectation 39. Dr. Dhavan next contended that the retrospective application of the new policy parameters by the FIC Committee is `arbitrary, `unreasonable and against the Doctrine of Legitimate Expectation. Learned counsel contends that since the Government controls the retail price of fertilizer, it would be `unfair, `unreasonable and violative of Article 14 for them to revise the scheme of subsidies, so that there would be losses caused to fertilizer manufacturers. In our view, this contention has no merit for both the facts and the applicable legal principles indicate that there is nothing arbitrary or unreasonable in what the FIC Committee has done. 40. At the outset, the material placed on record clearly demonstrates that the representatives of the First Appellant were party to the deliberations before the FIC Committee, who explained the material particulars regarding the manner of working out the Retention Price for the Seventh and Eighth pricing periods. The minutes of the said discussions, read with the correspondence between the parties pertaining to the Retention Price fixation for the Seventh and Eighth pricing periods, leave no doubt that the First Appellant was party to what was being done. Further, at no point, during the discussions or in the subsequent correspondence, did the First Appellant question the validity or correctness of the manner of fixation of the Retention Price (except on some minor issue like bank interest charges). 41. Dr. Dhavan cited a number of authorities to support his argument. However, these cases pertain to situations where tax exemptions, which were already granted and pursuant to which transactions had been held, were retrospectively withdrawn. Other authorities also pertained to setting up of industries in backward areas on promises of rebate/concessions. In our view, none of these authorities is of any assistance for resolving the issue before us, which is purely a consensual working arrangement between the Government and fertilizer manufacturers. The argument of `legitimate expectation, in our view, cannot have application to the present case. As we have said, the Scheme was a voluntary one, and having agreed to abide by the decision of the Government, there is no question of the appellants `legitimate expectations being belied. 42. Turning to the Article 14 argument, we emphatically reiterate the now-accepted position that Article 14 does not require this Court to examine the intricacies of an economic scheme or pricing policy for its merits or its correctness, for that is in the domain of the executive or the legislative branches of the Government. [See, e.g. BALCO Employees Union (Regd.) vs. Union of India, (2002) 2 SCC 333 at pp. 362-363 (paragraphs 46, 47), 381-382 (paragraphs 92, 93); Bhavesh D. Parish vs. Union of India, (2000) 5 SCC 471 at pp. 484-485 paragraph 23); Peerless General Finance and Investment Co. Ltd. vs. Reserve Bank of India, (1992) 2 SCC 343 at p. 397 (paragraphs 69 and 70); State of M.P. vs. Nandlal Jaiswal, (1986) 4 SCC 566 at pp.605-606 (paragraph 34); Premji Bhai Parmar vs. Delhi Development Authority, (1980) 2 SCC 129 at pp. 137-139 (paragraph 9)]. Indeed, even if the Scheme, as revised, is "unwise" or even "unjust", there is no recourse before us for, as Justice Homles elegantly put it: "We fully understand... the very powerful argument that can be made against the wisdom of the legislation, but on that point we have nothing to say, as it is not our concern." Noble State Bank vs. IIaskell, 219 US 575 at p. 580 (1910). We are broadly in concurrence with the reasoning of the High Court that in matters of administrative discretion it is not open to the courts to interfere in minute details except on grounds of mala fides or extreme arbitrariness. Interference should be only within very narrow limits, such as, where there is a clear violation of a statute or a constitutional provision, or extreme arbitrariness in the Wednesbury Associated Provincial Picture Houses Ltd. vs. Wednesbury Corporation, [1948] 1 KB 223. sense. Neither the High Court nor we have found any of these vitiating factors in the administration of the Retention Price Scheme and the consequent payments/recoveries of the subsidy amounts. Thus, in our view, the action of the FIC Committee to adversely modify the subsidies framework, cannot be questioned on its merits. The case of M/s Nagarjuna Fertilizers 43. The learned Additional Solicitor General brought to our notice that, out of all the concerned fertilizer manufacturing units, only two units have challenged the Retention Price Scheme for the relevant periods. One of the these is the First Appellant and the other was M/s Nagarjuna Fertilisers and Chemicals Ltd. (hereinafter "Nagarjuna Fertilizers"). Nagarjuna Fertilizers had filed SLP (Civil) No. 20721/2003 against the judgment of the High Court of Andhra Pradesh dismissing its Writ Petition No. 18242/2002 (dated 25.7.2003). This SLP was, however, summarily dismissed by this Court through order dated 17.11.2003. Although, we have carefully applied our mind to the case of the First Appellant, independent of the outcome in the case of Nagarjuna Fertilizers, we find that the two cases are actually indistinguishable on facts and the present case should have also been similarly dismissed. In any event, after a detailed examination, we have arrived at the same result. The Final Findings 44.
### Response:
0
### Explanation:
Dr. Dhavan next contended that the retrospective application of the new policy parameters by the FIC Committee is `arbitrary, `unreasonable and against the Doctrine of Legitimate Expectation. Learned counsel contends that since the Government controls the retail price of fertilizer, it would be `unfair, `unreasonable and violative of Article 14 for them to revise the scheme of subsidies, so that there would be losses caused to fertilizer manufacturers. In our view, this contention has no merit for both the facts and the applicable legal principles indicate that there is nothing arbitrary or unreasonable in what the FIC Committee has doneAt the outset, the material placed on record clearly demonstrates that the representatives of the First Appellant were party to the deliberations before the FIC Committee, who explained the material particulars regarding the manner of working out the Retention Price for the Seventh and Eighth pricing periods. The minutes of the said discussions, read with the correspondence between the parties pertaining to the Retention Price fixation for the Seventh and Eighth pricing periods, leave no doubt that the First Appellant was party to what was being done. Further, at no point, during the discussions or in the subsequent correspondence, did the First Appellant question the validity or correctness of the manner of fixation of the Retention Price (except on some minor issue like bank interest charges). Dr. Dhavan cited a number of authorities to support his argument. However, these cases pertain to situations where tax exemptions, which were already granted and pursuant to which transactions had been held, were retrospectively withdrawn. Other authorities also pertained to setting up of industries in backward areas on promises of rebate/concessions. In our view, none of these authorities is of any assistance for resolving the issue before us, which is purely a consensual working arrangement between the Government and fertilizer manufacturers. The argument of `legitimate expectation, in our view, cannot have application to the present case. As we have said, the Scheme was a voluntary one, and having agreed to abide by the decision of the Government, there is no question of the appellants `legitimate expectations being belied. Turning to the Article 14 argument, we emphatically reiterate the now-accepted position that Article 14 does not require this Court to examine the intricacies of an economic scheme or pricing policy for its merits or its correctness, for that is in the domain of the executive or the legislative branches of the Government. [See, e.g. BALCO Employees Union (Regd.) vs. Union of India, (2002) 2 SCC 333 at pp. 362-363 (paragraphs 46, 47), 381-382 (paragraphs 92, 93); Bhavesh D. Parish vs. Union of India, (2000) 5 SCC 471 at pp. 484-485 paragraph 23); Peerless General Finance and Investment Co. Ltd. vs. Reserve Bank of India, (1992) 2 SCC 343 at p. 397 (paragraphs 69 and 70); State of M.P. vs. Nandlal Jaiswal, (1986) 4 SCC 566 at pp.605-606 (paragraph 34); Premji Bhai Parmar vs. Delhi Development Authority, (1980) 2 SCC 129 at pp. 137-139 (paragraph 9)]. Indeed, even if the Scheme, as revised, is "unwise" or even "unjust", there is no recourse before us for, as Justice Homles elegantly put it:"We fully understand... the very powerful argument that can be made against the wisdom of the legislation, but on that point we have nothing to say, as it is not our concern."Noble State Bank vs. IIaskell, 219 US 575 at p. 580 (1910)We are broadly in concurrence with the reasoning of the High Court that in matters of administrative discretion it is not open to the courts to interfere in minute details except on grounds of mala fides or extreme arbitrariness. Interference should be only within very narrow limits, such as, where there is a clear violation of a statute or a constitutional provision, or extreme arbitrariness in the Wednesbury Associated Provincial Picture Houses Ltd. vs. Wednesbury Corporation, [1948] 1 KB 223. sense. Neither the High Court nor we have found any of these vitiating factors in the administration of the Retention Price Scheme and the consequent payments/recoveries of the subsidy amounts. Thus, in our view, the action of the FIC Committee to adversely modify the subsidies framework, cannot be questioned on its merits
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EASTERN COALFIELDS LTD. & O THE RS Vs. RAM SAMUGH YADAV & O THE RS | 1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 06.10.2010 passed by the Calcutta High Court in W.P. No.215 of 2006 by which the High Court allowed the said appeal preferred by respondent no.1 herein and directed the appellant to insert the correct date of birth of respondent no.1 in his service book and all other documents including provident fund records i.e. 15.07.1954 instead of 01.07.1945, the appellant employer has preferred the present appeal. 2. It is required to be noted that respondent no.1 joined service in the year 1973. His date of birth was recorded as in the year 1945 both in the form register which can be said to be statutory document as well as in the pension form. 3. One year prior to his superannuation, respondent no.1 raised the issue of incorrect entry of his date of birth in the service records and he further stated that his date of birth should be 15.07.1954 relying upon his matriculation certificate. The same prayer was not accepted by the employer. Therefore, respondent no.1 approached the High Court but the learned Single Judge dismissed the writ petition filed by him. Being aggrieved, he preferred an appeal before the High Court which came to be allowed. 4. Having heard learned counsel appearing for the respective parties at length and having considered the fact that even in the year 1987, when an opportunity was given by the employer to the employees to raise the query/dispute regarding service record and also in the pension form, respondent no.1 failed to avail such remedy. 5. It is submitted by learned counsel appearing for respondent no.1 that in the year 1981, the dispute was raised. The said fact is disputed. Be that as it may. 6. Nothing is on record that in the year 1987 when the opportunity was given to respondent no.1, to raise any issue/dispute regarding the service record more particularly his date of birth in the service record, no such issue/dispute was raised. Only one year prior to his superannuation, respondent no.1 raised the dispute which can be said to be belated dispute and therefore, the learned Single Judge as well as the employer was justified in refusing to accept such an issue. 7. The Division Bench of the High Court has, therefore, committed a grave error in directing the appellant to correct the date of birth of respondent no.1 in the service record after number of years and that too when the issue was raised only one year prior to his superannuation and as observed hereinabove no dispute was raised earlier. | 1[ds]4. Having heard learned counsel appearing for the respective parties at length and having considered the fact that even in the year 1987, when an opportunity was given by the employer to the employees to raise the query/dispute regarding service record and also in the pension form, respondent no.1 failed to avail such remedy.5. It is submitted by learned counsel appearing for respondent no.1 that in the year 1981, the dispute was raised. The said fact is disputed. Be that as it may.6. Nothing is on record that in the year 1987 when the opportunity was given to respondent no.1, to raise any issue/dispute regarding the service record more particularly his date of birth in the service record, no such issue/dispute was raised. Only one year prior to his superannuation, respondent no.1 raised the dispute which can be said to be belated dispute and therefore, the learned Single Judge as well as the employer was justified in refusing to accept such an issue.7. The Division Bench of the High Court has, therefore, committed a grave error in directing the appellant to correct the date of birth of respondent no.1 in the service record after number of years and that too when the issue was raised only one year prior to his superannuation and as observed hereinabove no dispute was raised earlier. | 1 | 468 | 242 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 06.10.2010 passed by the Calcutta High Court in W.P. No.215 of 2006 by which the High Court allowed the said appeal preferred by respondent no.1 herein and directed the appellant to insert the correct date of birth of respondent no.1 in his service book and all other documents including provident fund records i.e. 15.07.1954 instead of 01.07.1945, the appellant employer has preferred the present appeal. 2. It is required to be noted that respondent no.1 joined service in the year 1973. His date of birth was recorded as in the year 1945 both in the form register which can be said to be statutory document as well as in the pension form. 3. One year prior to his superannuation, respondent no.1 raised the issue of incorrect entry of his date of birth in the service records and he further stated that his date of birth should be 15.07.1954 relying upon his matriculation certificate. The same prayer was not accepted by the employer. Therefore, respondent no.1 approached the High Court but the learned Single Judge dismissed the writ petition filed by him. Being aggrieved, he preferred an appeal before the High Court which came to be allowed. 4. Having heard learned counsel appearing for the respective parties at length and having considered the fact that even in the year 1987, when an opportunity was given by the employer to the employees to raise the query/dispute regarding service record and also in the pension form, respondent no.1 failed to avail such remedy. 5. It is submitted by learned counsel appearing for respondent no.1 that in the year 1981, the dispute was raised. The said fact is disputed. Be that as it may. 6. Nothing is on record that in the year 1987 when the opportunity was given to respondent no.1, to raise any issue/dispute regarding the service record more particularly his date of birth in the service record, no such issue/dispute was raised. Only one year prior to his superannuation, respondent no.1 raised the dispute which can be said to be belated dispute and therefore, the learned Single Judge as well as the employer was justified in refusing to accept such an issue. 7. The Division Bench of the High Court has, therefore, committed a grave error in directing the appellant to correct the date of birth of respondent no.1 in the service record after number of years and that too when the issue was raised only one year prior to his superannuation and as observed hereinabove no dispute was raised earlier.
### Response:
1
### Explanation:
4. Having heard learned counsel appearing for the respective parties at length and having considered the fact that even in the year 1987, when an opportunity was given by the employer to the employees to raise the query/dispute regarding service record and also in the pension form, respondent no.1 failed to avail such remedy.5. It is submitted by learned counsel appearing for respondent no.1 that in the year 1981, the dispute was raised. The said fact is disputed. Be that as it may.6. Nothing is on record that in the year 1987 when the opportunity was given to respondent no.1, to raise any issue/dispute regarding the service record more particularly his date of birth in the service record, no such issue/dispute was raised. Only one year prior to his superannuation, respondent no.1 raised the dispute which can be said to be belated dispute and therefore, the learned Single Judge as well as the employer was justified in refusing to accept such an issue.7. The Division Bench of the High Court has, therefore, committed a grave error in directing the appellant to correct the date of birth of respondent no.1 in the service record after number of years and that too when the issue was raised only one year prior to his superannuation and as observed hereinabove no dispute was raised earlier.
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Rajbir Singh and Others Vs. Administrator, Union Territory of Delhi and Others | 1. The petitioners who are Head Constables in Delhi challenge in this writ petition the new procedure for promotion to the rank of Assistant Sub-Inspector introduced by the Delhi Police (Promotion and Confirmation) Rules, 1980, which were brought into force with effect from December 29, 1980. It is difficult to appreciate how any challenge can be successfully levelled against these Rules, because indisputably it is competent to the Delhi Administration to modify the existing Rules for promotion to the rank of Assistant Sub-Inspectors and to make new Rules in that behalf so long as they do not violate any constitutional guarantee and none seems to have been violated in the present case. The new Rules of promotion clearly apply to all Head Constables, equally and without discrimination with effect from December 29, 1980. The challenge to the constitutional validity of these Rules must therefore be rejected. 2. The only ground which could be urged with certain amount of plausibility on behalf of the petitioners was that Standing Order No. 40/81 for Admission of Names to the List for promotion to the rank of Assistant Sub-Inspectors was inconsistent with Rule 15 of the Delhi Police (Promotion and Confirmation) Rules, 1980 inasmuch as it provided for awarding of five marks for representation at different levels in sports for the purpose of selection by the Departmental Promotion Committee. The argument of Mr R.K. Garg, appearing on behalf of the petitioners was that the only factors which the Departmental Promotion Committee was entitled to take into account for the purpose of evaluating the relative merits of the candidates for selection were : (1) service record, (2) seniority, (3) annual confidential reports, (4) professional test comprising (a) physical training and parade, (b) Delhi Police Rules and Regulations, (c) Police practical work, (d) law, (e) general knowledge, (5) professional courses, and (6) viva voce. Representation at one or the other level of competition in sports, according to Mr R.K. Garg, was not covered by any of these factors and hence the awarding of five marks for that purpose was ultra vires Rule 15. This contention of Mr R.K. Garg would have required serious consideration, but we find from the statistics which have been furnished to us by Dr L.M. Singhvi, appearing on behalf of the respondents, that only two Head Constables out of these who appeared for selection by the Departmental Selection Committee obtained marks for the not more than three - on account of sports and none of the other 192 Head Constables who were ultimately selected was awarded any marks on account of sports. The aggregate mark obtained by these two Head Constables were 143 1/2 and 145 1/2 respectively, while the Head Constable, who was ranked last in the selection list had 133 marks. Therefore, even if three marks awarded on account of sports were excluded from the total number of marks obtained by these two Head Constables, they would still have been in the select list at places higher than the Head Constable who was last in the select list, and it would have made no difference to the result even if three marks awarded on account of sports were not taken into account. The petitioners who get less number of marks than the Head Constables who ranked last in the select list could not possibly have come in the select list, even if the provision in the Standing Order in regard to awarding of five marks on account of sports were ultra vires and no marks had been awarded on account of sports to any Head Constables. This being the factual position, it is unnecessary to consider whether the provision in regard to awarding of five marks on account of sports is ultra vires Rule 15. Moreover, Dr L.M. Singhvi on behalf of the respondents, has stated before us that though, in his submission, representation at one other level of competition in sports would be covered by the expression "Professional Courses", the respondents would for future selection take steps to clarify the position by amending Rule 15 so as to specifically include representation in sports as a relevant factor in evaluation. | 0[ds]2. The only ground which could be urged with certain amount of plausibility on behalf of the petitioners was that Standing Order No. 40/81 for Admission of Names to the List for promotion to the rank of Assistants was inconsistent with Rule 15 of the Delhi Police (Promotion and Confirmation) Rules, 1980 inasmuch as it provided for awarding of five marks for representation at different levels in sports for the purpose of selection by the Departmental Promotion CommitteeThis contention of Mr R.K. Garg would have required serious consideration, but we find from the statistics which have been furnished to us by Dr L.M. Singhvi, appearing on behalf of the respondents, that only two Head Constables out of these who appeared for selection by the Departmental Selection Committee obtained marks for the not more than threeon account of sports and none of the other 192 Head Constables who were ultimately selected was awarded any marks on account of sports. The aggregate mark obtained by these two Head Constables were 143 1/2 and 145 1/2 respectively, while the Head Constable, who was ranked last in the selection list had 133 marks. Therefore, even if three marks awarded on account of sports were excluded from the total number of marks obtained by these two Head Constables, they would still have been in the select list at places higher than the Head Constable who was last in the select list, and it would have made no difference to the result even if three marks awarded on account of sports were not taken into account. The petitioners who get less number of marks than the Head Constables who ranked last in the select list could not possibly have come in the select list, even if the provision in the Standing Order in regard to awarding of five marks on account of sports were ultra vires and no marks had been awarded on account of sports to any Head Constables. This being the factual position, it is unnecessary to consider whether the provision in regard to awarding of five marks on account of sports is ultra vires Rule 15. Moreover, Dr L.M. Singhvi on behalf of the respondents, has stated before us that though, in his submission, representation at one other level of competition in sports would be covered by the expression "Professional Courses", the respondents would for future selection take steps to clarify the position by amending Rule 15 so as to specifically include representation in sports as a relevant factor in evaluation. | 0 | 770 | 452 | ### 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:
1. The petitioners who are Head Constables in Delhi challenge in this writ petition the new procedure for promotion to the rank of Assistant Sub-Inspector introduced by the Delhi Police (Promotion and Confirmation) Rules, 1980, which were brought into force with effect from December 29, 1980. It is difficult to appreciate how any challenge can be successfully levelled against these Rules, because indisputably it is competent to the Delhi Administration to modify the existing Rules for promotion to the rank of Assistant Sub-Inspectors and to make new Rules in that behalf so long as they do not violate any constitutional guarantee and none seems to have been violated in the present case. The new Rules of promotion clearly apply to all Head Constables, equally and without discrimination with effect from December 29, 1980. The challenge to the constitutional validity of these Rules must therefore be rejected. 2. The only ground which could be urged with certain amount of plausibility on behalf of the petitioners was that Standing Order No. 40/81 for Admission of Names to the List for promotion to the rank of Assistant Sub-Inspectors was inconsistent with Rule 15 of the Delhi Police (Promotion and Confirmation) Rules, 1980 inasmuch as it provided for awarding of five marks for representation at different levels in sports for the purpose of selection by the Departmental Promotion Committee. The argument of Mr R.K. Garg, appearing on behalf of the petitioners was that the only factors which the Departmental Promotion Committee was entitled to take into account for the purpose of evaluating the relative merits of the candidates for selection were : (1) service record, (2) seniority, (3) annual confidential reports, (4) professional test comprising (a) physical training and parade, (b) Delhi Police Rules and Regulations, (c) Police practical work, (d) law, (e) general knowledge, (5) professional courses, and (6) viva voce. Representation at one or the other level of competition in sports, according to Mr R.K. Garg, was not covered by any of these factors and hence the awarding of five marks for that purpose was ultra vires Rule 15. This contention of Mr R.K. Garg would have required serious consideration, but we find from the statistics which have been furnished to us by Dr L.M. Singhvi, appearing on behalf of the respondents, that only two Head Constables out of these who appeared for selection by the Departmental Selection Committee obtained marks for the not more than three - on account of sports and none of the other 192 Head Constables who were ultimately selected was awarded any marks on account of sports. The aggregate mark obtained by these two Head Constables were 143 1/2 and 145 1/2 respectively, while the Head Constable, who was ranked last in the selection list had 133 marks. Therefore, even if three marks awarded on account of sports were excluded from the total number of marks obtained by these two Head Constables, they would still have been in the select list at places higher than the Head Constable who was last in the select list, and it would have made no difference to the result even if three marks awarded on account of sports were not taken into account. The petitioners who get less number of marks than the Head Constables who ranked last in the select list could not possibly have come in the select list, even if the provision in the Standing Order in regard to awarding of five marks on account of sports were ultra vires and no marks had been awarded on account of sports to any Head Constables. This being the factual position, it is unnecessary to consider whether the provision in regard to awarding of five marks on account of sports is ultra vires Rule 15. Moreover, Dr L.M. Singhvi on behalf of the respondents, has stated before us that though, in his submission, representation at one other level of competition in sports would be covered by the expression "Professional Courses", the respondents would for future selection take steps to clarify the position by amending Rule 15 so as to specifically include representation in sports as a relevant factor in evaluation.
### Response:
0
### Explanation:
2. The only ground which could be urged with certain amount of plausibility on behalf of the petitioners was that Standing Order No. 40/81 for Admission of Names to the List for promotion to the rank of Assistants was inconsistent with Rule 15 of the Delhi Police (Promotion and Confirmation) Rules, 1980 inasmuch as it provided for awarding of five marks for representation at different levels in sports for the purpose of selection by the Departmental Promotion CommitteeThis contention of Mr R.K. Garg would have required serious consideration, but we find from the statistics which have been furnished to us by Dr L.M. Singhvi, appearing on behalf of the respondents, that only two Head Constables out of these who appeared for selection by the Departmental Selection Committee obtained marks for the not more than threeon account of sports and none of the other 192 Head Constables who were ultimately selected was awarded any marks on account of sports. The aggregate mark obtained by these two Head Constables were 143 1/2 and 145 1/2 respectively, while the Head Constable, who was ranked last in the selection list had 133 marks. Therefore, even if three marks awarded on account of sports were excluded from the total number of marks obtained by these two Head Constables, they would still have been in the select list at places higher than the Head Constable who was last in the select list, and it would have made no difference to the result even if three marks awarded on account of sports were not taken into account. The petitioners who get less number of marks than the Head Constables who ranked last in the select list could not possibly have come in the select list, even if the provision in the Standing Order in regard to awarding of five marks on account of sports were ultra vires and no marks had been awarded on account of sports to any Head Constables. This being the factual position, it is unnecessary to consider whether the provision in regard to awarding of five marks on account of sports is ultra vires Rule 15. Moreover, Dr L.M. Singhvi on behalf of the respondents, has stated before us that though, in his submission, representation at one other level of competition in sports would be covered by the expression "Professional Courses", the respondents would for future selection take steps to clarify the position by amending Rule 15 so as to specifically include representation in sports as a relevant factor in evaluation.
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A.P.Power Coordination Commit Vs. M/S Lanco Kondapalli Power Ltd | in view of the then prevailing tax regime under which income from such power projects stood exempted, is noticed only to be rejected. The entire phraseology used in Article 3.8 of the PPA leaves no manner of doubt that parties were aware that tax regime keeps changing and therefore any advance income tax payable for the income from the project only had to be reimbursed by the Board. As a successor of the Board the appellant cannot avoid the liability to reimburse advance income tax paid by the M/s. LANCO, on the ground that MAT was a new variety of tax concept introduced subsequently in which minimum tax became payable on the basis of mere book profits of even power generating companies. The argument that such tax is not on income from the project and therefore, not covered by Article 3.8 of the PPA is also found to be without any substance.35. The objective of levying MAT, as declared by the Income Tax Department is to bring into the tax net "Zero Tax Companies" which in spite of having earned substantial book profits and having paid handsome dividends, do not pay any tax due to various tax concessions and incentives provided under the Income Tax Law. It is no bodys case that in fact M/s. LANCO had not generated income from the project during the relevant years. The taxable income, of course, became amenable to MAT on account of Section 115JB. The Legislative changes in respect of MAT show that it came into force initially with effect from 1.4.1988 by introduction of Section 115J in the Income Tax Act, 1961 but this provision was amended to exempt power generating companies with effect from 1.4.1989 and from 1.4.1991 MAT became inapplicable because of deletion of Section 115J which was reintroduced with effect from 1.4.1997 by insertion of Section 115JA. But it was not made applicable to power generating companies till 31.3.2001. However, Section 115JA was withdrawn and Section 115JB was inserted with effect from 1.4.2001 to make MAT applicable to all targeted corporate entities including power generating companies. The submission on behalf of the appellant that Section 115JB is a tax not on profit but of different character is based on misconception. No doubt this Section has a special provision for payment of tax by certain companies on the basis of its book profit which is deemed to be the total income of the assessee and is subjected to income tax at a specified rate. The provisions of Sections 115JA and 115JB have been also construed as a self-contained code in Ajanta Pharma Limited v. CIT, 2010 (9) SCC 455 and in several other judgments as stand alone sections. But that does not change the basic nature of the provision. It remains a provision under the Income Tax Act and what is levied is income tax on the assessment of income as per such a special provision.36. Article 1.4 of the PPA provides inter alia that reference to any Law shall be construed as a reference to such Law as from time to time amended or re-enacted. This general provision in our view is sufficient to take care of all the taxes on income under Article 3.8 of the PPA notwithstanding different rates of income tax or other changes which may be brought about in the Income Tax Act. This view commends itself to us because such change in Law relating to Income Tax does not require any additional claim to be raised by the power generating companies. There is no specific amount - or rate which is to be reimbursed by the Board. Rather, the entire advance income tax payable requires reimbursement on account of Article 3.8 of the PPA provided of course that the accounts are maintained in the manner required by the Agreement so that tax is only on the basis of income from the project. No such dispute has been raised in the present case.37. The claim of the appellant that liability of MAT is on account of change in Law and therefore required M/s. LANCO to adopt the procedure for making claims under Article 11.4 of the PPA does not appeal to us for the aforesaid reasons. The entire stipulation in Article 11.4 of the PPA is in respect of additional or reduced expenditures or costs which have not been catered for and arise later due to change in Law. The burden on account of income tax as per Article 3.9 of the PPA cannot be treated as additional or reduced burden because the entire actual advance income tax payable for the project is required to be reimbursed by the Board. It is immaterial whether the income tax payable is high or low in any particular year. When there is already a special provision in respect of entire payable taxes on income under Article 3.8 of the PPA, that should have precedence over the general provisions in Article 11.4 of the PPA.38. We have also considered other relevant provisions of the Income Tax such as definition of income, total income, tax and find that they do not help the case of the appellant in any manner. Section 2(43) defines Tax to mean income tax chargeable under the provisions of Income Tax Act and Total Income has been defined with reference to Section 5 which enlarges the scope of total income not only to income received or accrued but also deemed to be received or deemed to be accrued in India (for a resident). Simply because the exemption earlier granted to power generating companies has been withdrawn so as to subject them to income tax liability under a special provision, cannot lead to any inference as suggested on behalf of the appellant that it is not an income tax but some other tax which is levied under Section 115JB of the Income Tax Act. Hence we hold the claim for MAT covered by Article 3.8 of the PPA and payable as such when requisite conditions stand satisfied. | 0[ds]11. Although, we were taken through various other Articles of PPA but it is not imperative to reproduce all such provisions. Article 3.1 provides for capacity charge which is required to be computed as per Article 3.2 and is meant to be paid by the Board. This is in respect of the Cumulative Available Energy provided by the Project in respect of any tariff year, upto (but not exceeding) an amount calculated on the basis of Prescribed Plant Load factor. Since the issue of capacity charge is not required to be addressed by us on merits, further details need not detain us. Clause 3.8 has been read over again and again because it is of immense significance in deciding the issue relating to MAT. Article 5 contains various sub-articles relating to billing and payment. They provide for monthly tariff bills which are payable by the Board or the licensee on the Due Date of Payment. The supplementary bills are covered by Article 5.5. They cover different items and are required to be supported by supporting data. Such bills are also payable on the Due Date of Payment, except the supplementary bill for taxes on income which is to be submitted at least 30 days prior to the time when the income tax is required to be paid by the generating company. Such bill is payable by the Board within 25 days of presentation or at least 5 days before the date on which the tax is required to be paid by the company, whichever is later.12. Article 5.7 relates to billing disputes and it refers to the provisions of Article 14 which governs Arbitration including Informal Dispute Resolution. Article 11 caters to the effects of Change in Law upon the rights and liabilities of the parties. This has assumed relevance in the present context on account of stand taken by the appellant that MAT does not fall under Article 3.8 governing claims for Taxes on Income but under Article 11.4 which provides an altogether different procedure for making claim for additional costs by the company on account of any Change in Law etc. In this context it may usefully be noted that Article 1 of PPA contains definitions for the purposes of the agreement. Article 1.2 adopts definition of several terms as defined in the Indian Electricity (Supply Act) 1948 and set out in Schedule B to the Agreement. Article 1.4 contains various general provisions such as - unless the context otherwise requires, the singular shall include plural etc. and vice versa and that " .......a reference to any Law shall be construed as a reference to such Law as from time to time amended or re-enacted.It has already been noted that the claim for reimbursement of MAT for the period 2001-2005 was rejected by the Commission on the ground of limitation and after impugned order by APTEL reversing such order, that claim stands remitted to the Commission for passing a consequential order. The claims for other periods have been allowed by the Commission. On account of our view indicated earlier upholding the order of APTEL on the issue of limitation, the claim of MAT for 2001-2005 cannot be treated as barred by limitation. Thus the claim of MAT for entire concerned period that is from 2001-2012 will be covered by our decision on Merits of Claim relating to MAT. The argument of Mr. Giri that MAT cannot be covered by the provisions in Article 3.8 of the PPA providing for claims for taxes on income because the appellant had not foreseen such eventuality in view of the then prevailing tax regime under which income from such power projects stood exempted, is noticed only to be rejected. The entire phraseology used in Article 3.8 of the PPA leaves no manner of doubt that parties were aware that tax regime keeps changing and therefore any advance income tax payable for the income from the project only had to be reimbursed by the Board. As a successor of the Board the appellant cannot avoid the liability to reimburse advance income tax paid by the M/s. LANCO, on the ground that MAT was a new variety of tax concept introduced subsequently in which minimum tax became payable on the basis of mere book profits of even power generating companies. The argument that such tax is not on income from the project and therefore, not covered by Article 3.8 of the PPA is also found to be without any substance.35. The objective of levying MAT, as declared by the Income Tax Department is to bring into the tax net "Zero Tax Companies" which in spite of having earned substantial book profits and having paid handsome dividends, do not pay any tax due to various tax concessions and incentives provided under the Income Tax Law. It is no bodys case that in fact M/s. LANCO had not generated income from the project during the relevant years. The taxable income, of course, became amenable to MAT on account of Section 115JB. The Legislative changes in respect of MAT show that it came into force initially with effect from 1.4.1988 by introduction of Section 115J in the Income Tax Act, 1961 but this provision was amended to exempt power generating companies with effect from 1.4.1989 and from 1.4.1991 MAT became inapplicable because of deletion of Section 115J which was reintroduced with effect from 1.4.1997 by insertion of Section 115JA. But it was not made applicable to power generating companies till 31.3.2001. However, Section 115JA was withdrawn and Section 115JB was inserted with effect from 1.4.2001 to make MAT applicable to all targeted corporate entities including power generating companies. The submission on behalf of the appellant that Section 115JB is a tax not on profit but of different character is based on misconception. No doubt this Section has a special provision for payment of tax by certain companies on the basis of its book profit which is deemed to be the total income of the assessee and is subjected to income tax at a specified rate. The provisions of Sections 115JA and 115JB have been also construed as a self-contained code in Ajanta Pharma Limited v. CIT, 2010 (9) SCC 455 and in several other judgments as stand alone sections. But that does not change the basic nature of the provision. It remains a provision under the Income Tax Act and what is levied is income tax on the assessment of income as per such a special provision.36. Article 1.4 of the PPA provides inter alia that reference to any Law shall be construed as a reference to such Law as from time to time amended or re-enacted. This general provision in our view is sufficient to take care of all the taxes on income under Article 3.8 of the PPA notwithstanding different rates of income tax or other changes which may be brought about in the Income Tax Act. This view commends itself to us because such change in Law relating to Income Tax does not require any additional claim to be raised by the power generating companies. There is no specific amount - or rate which is to be reimbursed by the Board. Rather, the entire advance income tax payable requires reimbursement on account of Article 3.8 of the PPA provided of course that the accounts are maintained in the manner required by the Agreement so that tax is only on the basis of income from the project. No such dispute has been raised in the present case.37. The claim of the appellant that liability of MAT is on account of change in Law and therefore required M/s. LANCO to adopt the procedure for making claims under Article 11.4 of the PPA does not appeal to us for the aforesaid reasons. The entire stipulation in Article 11.4 of the PPA is in respect of additional or reduced expenditures or costs which have not been catered for and arise later due to change in Law. The burden on account of income tax as per Article 3.9 of the PPA cannot be treated as additional or reduced burden because the entire actual advance income tax payable for the project is required to be reimbursed by the Board. It is immaterial whether the income tax payable is high or low in any particular year. When there is already a special provision in respect of entire payable taxes on income under Article 3.8 of the PPA, that should have precedence over the general provisions in Article 11.4 of the PPA.38. We have also considered other relevant provisions of the Income Tax such as definition of income, total income, tax and find that they do not help the case of the appellant in any manner. Section 2(43) defines Tax to mean income tax chargeable under the provisions of Income Tax Act and Total Income has been defined with reference to Section 5 which enlarges the scope of total income not only to income received or accrued but also deemed to be received or deemed to be accrued in India (for a resident). Simply because the exemption earlier granted to power generating companies has been withdrawn so as to subject them to income tax liability under a special provision, cannot lead to any inference as suggested on behalf of the appellant that it is not an income tax but some other tax which is levied under Section 115JB of the Income Tax Act. Hence we hold the claim for MAT covered by Article 3.8 of the PPA and payable as such when requisite conditions stand | 0 | 13,739 | 1,693 | ### 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:
in view of the then prevailing tax regime under which income from such power projects stood exempted, is noticed only to be rejected. The entire phraseology used in Article 3.8 of the PPA leaves no manner of doubt that parties were aware that tax regime keeps changing and therefore any advance income tax payable for the income from the project only had to be reimbursed by the Board. As a successor of the Board the appellant cannot avoid the liability to reimburse advance income tax paid by the M/s. LANCO, on the ground that MAT was a new variety of tax concept introduced subsequently in which minimum tax became payable on the basis of mere book profits of even power generating companies. The argument that such tax is not on income from the project and therefore, not covered by Article 3.8 of the PPA is also found to be without any substance.35. The objective of levying MAT, as declared by the Income Tax Department is to bring into the tax net "Zero Tax Companies" which in spite of having earned substantial book profits and having paid handsome dividends, do not pay any tax due to various tax concessions and incentives provided under the Income Tax Law. It is no bodys case that in fact M/s. LANCO had not generated income from the project during the relevant years. The taxable income, of course, became amenable to MAT on account of Section 115JB. The Legislative changes in respect of MAT show that it came into force initially with effect from 1.4.1988 by introduction of Section 115J in the Income Tax Act, 1961 but this provision was amended to exempt power generating companies with effect from 1.4.1989 and from 1.4.1991 MAT became inapplicable because of deletion of Section 115J which was reintroduced with effect from 1.4.1997 by insertion of Section 115JA. But it was not made applicable to power generating companies till 31.3.2001. However, Section 115JA was withdrawn and Section 115JB was inserted with effect from 1.4.2001 to make MAT applicable to all targeted corporate entities including power generating companies. The submission on behalf of the appellant that Section 115JB is a tax not on profit but of different character is based on misconception. No doubt this Section has a special provision for payment of tax by certain companies on the basis of its book profit which is deemed to be the total income of the assessee and is subjected to income tax at a specified rate. The provisions of Sections 115JA and 115JB have been also construed as a self-contained code in Ajanta Pharma Limited v. CIT, 2010 (9) SCC 455 and in several other judgments as stand alone sections. But that does not change the basic nature of the provision. It remains a provision under the Income Tax Act and what is levied is income tax on the assessment of income as per such a special provision.36. Article 1.4 of the PPA provides inter alia that reference to any Law shall be construed as a reference to such Law as from time to time amended or re-enacted. This general provision in our view is sufficient to take care of all the taxes on income under Article 3.8 of the PPA notwithstanding different rates of income tax or other changes which may be brought about in the Income Tax Act. This view commends itself to us because such change in Law relating to Income Tax does not require any additional claim to be raised by the power generating companies. There is no specific amount - or rate which is to be reimbursed by the Board. Rather, the entire advance income tax payable requires reimbursement on account of Article 3.8 of the PPA provided of course that the accounts are maintained in the manner required by the Agreement so that tax is only on the basis of income from the project. No such dispute has been raised in the present case.37. The claim of the appellant that liability of MAT is on account of change in Law and therefore required M/s. LANCO to adopt the procedure for making claims under Article 11.4 of the PPA does not appeal to us for the aforesaid reasons. The entire stipulation in Article 11.4 of the PPA is in respect of additional or reduced expenditures or costs which have not been catered for and arise later due to change in Law. The burden on account of income tax as per Article 3.9 of the PPA cannot be treated as additional or reduced burden because the entire actual advance income tax payable for the project is required to be reimbursed by the Board. It is immaterial whether the income tax payable is high or low in any particular year. When there is already a special provision in respect of entire payable taxes on income under Article 3.8 of the PPA, that should have precedence over the general provisions in Article 11.4 of the PPA.38. We have also considered other relevant provisions of the Income Tax such as definition of income, total income, tax and find that they do not help the case of the appellant in any manner. Section 2(43) defines Tax to mean income tax chargeable under the provisions of Income Tax Act and Total Income has been defined with reference to Section 5 which enlarges the scope of total income not only to income received or accrued but also deemed to be received or deemed to be accrued in India (for a resident). Simply because the exemption earlier granted to power generating companies has been withdrawn so as to subject them to income tax liability under a special provision, cannot lead to any inference as suggested on behalf of the appellant that it is not an income tax but some other tax which is levied under Section 115JB of the Income Tax Act. Hence we hold the claim for MAT covered by Article 3.8 of the PPA and payable as such when requisite conditions stand satisfied.
### Response:
0
### Explanation:
in view of the then prevailing tax regime under which income from such power projects stood exempted, is noticed only to be rejected. The entire phraseology used in Article 3.8 of the PPA leaves no manner of doubt that parties were aware that tax regime keeps changing and therefore any advance income tax payable for the income from the project only had to be reimbursed by the Board. As a successor of the Board the appellant cannot avoid the liability to reimburse advance income tax paid by the M/s. LANCO, on the ground that MAT was a new variety of tax concept introduced subsequently in which minimum tax became payable on the basis of mere book profits of even power generating companies. The argument that such tax is not on income from the project and therefore, not covered by Article 3.8 of the PPA is also found to be without any substance.35. The objective of levying MAT, as declared by the Income Tax Department is to bring into the tax net "Zero Tax Companies" which in spite of having earned substantial book profits and having paid handsome dividends, do not pay any tax due to various tax concessions and incentives provided under the Income Tax Law. It is no bodys case that in fact M/s. LANCO had not generated income from the project during the relevant years. The taxable income, of course, became amenable to MAT on account of Section 115JB. The Legislative changes in respect of MAT show that it came into force initially with effect from 1.4.1988 by introduction of Section 115J in the Income Tax Act, 1961 but this provision was amended to exempt power generating companies with effect from 1.4.1989 and from 1.4.1991 MAT became inapplicable because of deletion of Section 115J which was reintroduced with effect from 1.4.1997 by insertion of Section 115JA. But it was not made applicable to power generating companies till 31.3.2001. However, Section 115JA was withdrawn and Section 115JB was inserted with effect from 1.4.2001 to make MAT applicable to all targeted corporate entities including power generating companies. The submission on behalf of the appellant that Section 115JB is a tax not on profit but of different character is based on misconception. No doubt this Section has a special provision for payment of tax by certain companies on the basis of its book profit which is deemed to be the total income of the assessee and is subjected to income tax at a specified rate. The provisions of Sections 115JA and 115JB have been also construed as a self-contained code in Ajanta Pharma Limited v. CIT, 2010 (9) SCC 455 and in several other judgments as stand alone sections. But that does not change the basic nature of the provision. It remains a provision under the Income Tax Act and what is levied is income tax on the assessment of income as per such a special provision.36. Article 1.4 of the PPA provides inter alia that reference to any Law shall be construed as a reference to such Law as from time to time amended or re-enacted. This general provision in our view is sufficient to take care of all the taxes on income under Article 3.8 of the PPA notwithstanding different rates of income tax or other changes which may be brought about in the Income Tax Act. This view commends itself to us because such change in Law relating to Income Tax does not require any additional claim to be raised by the power generating companies. There is no specific amount - or rate which is to be reimbursed by the Board. Rather, the entire advance income tax payable requires reimbursement on account of Article 3.8 of the PPA provided of course that the accounts are maintained in the manner required by the Agreement so that tax is only on the basis of income from the project. No such dispute has been raised in the present case.37. The claim of the appellant that liability of MAT is on account of change in Law and therefore required M/s. LANCO to adopt the procedure for making claims under Article 11.4 of the PPA does not appeal to us for the aforesaid reasons. The entire stipulation in Article 11.4 of the PPA is in respect of additional or reduced expenditures or costs which have not been catered for and arise later due to change in Law. The burden on account of income tax as per Article 3.9 of the PPA cannot be treated as additional or reduced burden because the entire actual advance income tax payable for the project is required to be reimbursed by the Board. It is immaterial whether the income tax payable is high or low in any particular year. When there is already a special provision in respect of entire payable taxes on income under Article 3.8 of the PPA, that should have precedence over the general provisions in Article 11.4 of the PPA.38. We have also considered other relevant provisions of the Income Tax such as definition of income, total income, tax and find that they do not help the case of the appellant in any manner. Section 2(43) defines Tax to mean income tax chargeable under the provisions of Income Tax Act and Total Income has been defined with reference to Section 5 which enlarges the scope of total income not only to income received or accrued but also deemed to be received or deemed to be accrued in India (for a resident). Simply because the exemption earlier granted to power generating companies has been withdrawn so as to subject them to income tax liability under a special provision, cannot lead to any inference as suggested on behalf of the appellant that it is not an income tax but some other tax which is levied under Section 115JB of the Income Tax Act. Hence we hold the claim for MAT covered by Article 3.8 of the PPA and payable as such when requisite conditions stand
|
Shivdeo Singh & Ors Vs. State Of Punjab & Ors | and 49 of the Administration of Evacuee Property (Central) Rules, 1950, the power to cancel an allotment could not be exercised after July 22, 1952 and that in any case the cancellation of allotment made even prior to this date could not be implemented if it was not implemented before June-15, 1952. This argument is based on R. 49 which was added on July 22, 1952 and reads as follows :"49. Repeal-The Rules contained in the following notifications, namely :(i) the notification of the Government of Punjab in the Relief and Rehabilitation Department No. 8689-S (Reh), dated the 29th August, 1951; and(ii) the notification of the Government of Patiala and East Punjab States Union in the Relief and Rehabilitation Department No. 2 dated the 19th February, 1952, are hereby repealed :Provided that subject to the next succeeding proviso anything done on any action taken in exercise of any power conferred by any of the said Rules shall be deemed to have been done or taken under the corresponding provision of these Rules :Provided that no. order other than an order in an appeal made in exercise of any power conferred by any of the said Rules shall have effect-(a) if it was made after the 25th May, 1952, or(b) if it was made on or before the 25th May, 1952, was not implemented or enforced on or before the 15th June, 1952."5. According to Mr. Gopal Singh learned counsel for the appellant, the order passed by Mr. Vikram Singh dated October 9, 1951, was not an order of cancellation of allotment at all but was in the nature of proposal or at best it was a tentative or an inchoate order. We have quoted that order extensively and a bare perusal thereof would show that there is no. substance in the contention of the learned counsel. it is true that Mr. Vikram Singh has stated in his order that the appellants are "likely to be ousted immediately. But the word "likely" qualifies not ousted but "immediately". The order proceeds to say that the appellants seriously opposed the action and then says that the D. C. Gurdaspur will be asked to ascertain if he can find land for the "oustees" of Bhaini Bangar. This would indicate that a decision had already been taken by Mr. Vikram Singh to the effect that "non-fauii allottees of Bhaini Bangar including the appellants should be ousted to make room for "faujit" families, immediate action was not taken because as stated in the order, a certain appeal was pending before this court. That appeal, it may be mentioned, was against the decision of the Punjab High Court in a petition filed before it by some other "non-fauji" allottees who have been ousted from their lands in order to allot those lands to "fauji" families. Subsequent to the decision of the Punjab High Court the Director of Relief and Refiabilitation, Punjab, passed the aforesaid order dated October 9, 1951 cancelling the allotment in favour of the appellants in order to accommodate the persons who had succeeded in the petition before the Punjab High Court.6. We would like to point out that the appellants had themselves accepted the order dated October 9, 1951, as being a final order because in their petition to the High Court they had asked for its cancellation. It was only during the arguments that a contention was raised on their behalf that the order was not final. In our opinion, they cannot be permitted to raise a contention which is clearly contrary to the stand taken by them in their writ petition.7. The question then is whether the order of Mr. Vikram Singh could be implemented subsequent to June 15, 1952. The action which was taken against the appellant was under the notification of the Punjab Government in Relief and Rehabilitation Department No. 8689-S (Rein) dated August 29, 1951. Learned counsel points out that the rules contained in the aforesaid notification were repealed by notification No. S. R. O. 1290 dated July 22, 1952, and though R. 49 saved "anything done or any action taken in the exercise of any power conferred by any of the rules", it was the second proviso to R. 49 which prohibited the implementation of any order made under the repealed rules before May 25, 1952, unless that order was implemented or enforced on or before June 15, 1952. Rule 49 was amended on August 4, 1952 and the second proviso was deleted. The resultant position, therefore, is that the non-implementation of an order on or before June 15, l952, would not prohibit its implementation subsequent to that date.8. The other contention of Mr. Gopal Singh pertains to the second order of Khosla, J., which in effect, reviews his prior order. Learned counsel contends that Art. 226 of the Constitution does not confer any power on the High Court to review its own order and, therefore, the second order of Khosla, J., was without jurisdiction. It is sufficient to say that there is nothing in Art. 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. Here the previous order of Khosla, J., affected the interests of persons who were not made parties to the proceeding before him. It was at their instance and for giving them a hearing that Khosla J. entertained the second petition. In doing so, he merely did what the principles of natural justice required him to do. It is said that the respondents before us had no. right to apply for review because they were not parties to the previous proceedings. As we have already pointed out, it is precisely because they were not made parties to the previous proceedings, though their interests were sought to be affected by the decision of the High Court, that the second application was e entertained by Khosla, J. | 0[ds]4. It was not contended before us that the Director of Rehabilitation had no. power to declare a village as a "Fauji" village nor was it contended that an allotment made in favour of a displaced person could never be cancelled. What was, however, contended was that by virtue of Rules 14(6) and 49 of the Administration of Evacuee Property (Central) Rules, 1950, the power to cancel an allotment could not be exercised after July 22, 1952 and that in any case the cancellation of allotment made even prior to this date could not be implemented if it was not implemented before1952. This argument is based on R. 49 which was added on July 22, 1952 and reads as follows :"49.Rules contained in the following notifications, namely :(i) the notification of the Government of Punjab in the Relief and Rehabilitation Department No.(Reh), dated the 29th August, 1951; and(ii) the notification of the Government of Patiala and East Punjab States Union in the Relief and Rehabilitation Department No. 2 dated the 19th February, 1952, are hereby repealed :Provided that subject to the next succeeding proviso anything done on any action taken in exercise of any power conferred by any of the said Rules shall be deemed to have been done or taken under the corresponding provision of these Rules :Provided that no. order other than an order in an appeal made in exercise of any power conferred by any of the said Rules shall haveif it was made after the 25th May, 1952, or(b) if it was made on or before the 25th May, 1952, was not implemented or enforced on or before the 15th June, 1952.We would like to point out that the appellants had themselves accepted the order dated October 9, 1951, as being a final order because in their petition to the High Court they had asked for its cancellation. It was only during the arguments that a contention was raised on their behalf that the order was not final. In our opinion, they cannot be permitted to raise a contention which is clearly contrary to the stand taken by them in their writis sufficient to say that there is nothing in Art. 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. Here the previous order of Khosla, J., affected the interests of persons who were not made parties to the proceeding before him. It was at their instance and for giving them a hearing that Khosla J. entertained the second petition. In doing so, he merely did what the principles of natural justice required him to do. It is said that the respondents before us had no. right to apply for review because they were not parties to the previous proceedings. As we have already pointed out, it is precisely because they were not made parties to the previous proceedings, though their interests were sought to be affected by the decision of the High Court, that the second application was e entertained by Khosla, J. | 0 | 1,776 | 599 | ### 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:
and 49 of the Administration of Evacuee Property (Central) Rules, 1950, the power to cancel an allotment could not be exercised after July 22, 1952 and that in any case the cancellation of allotment made even prior to this date could not be implemented if it was not implemented before June-15, 1952. This argument is based on R. 49 which was added on July 22, 1952 and reads as follows :"49. Repeal-The Rules contained in the following notifications, namely :(i) the notification of the Government of Punjab in the Relief and Rehabilitation Department No. 8689-S (Reh), dated the 29th August, 1951; and(ii) the notification of the Government of Patiala and East Punjab States Union in the Relief and Rehabilitation Department No. 2 dated the 19th February, 1952, are hereby repealed :Provided that subject to the next succeeding proviso anything done on any action taken in exercise of any power conferred by any of the said Rules shall be deemed to have been done or taken under the corresponding provision of these Rules :Provided that no. order other than an order in an appeal made in exercise of any power conferred by any of the said Rules shall have effect-(a) if it was made after the 25th May, 1952, or(b) if it was made on or before the 25th May, 1952, was not implemented or enforced on or before the 15th June, 1952."5. According to Mr. Gopal Singh learned counsel for the appellant, the order passed by Mr. Vikram Singh dated October 9, 1951, was not an order of cancellation of allotment at all but was in the nature of proposal or at best it was a tentative or an inchoate order. We have quoted that order extensively and a bare perusal thereof would show that there is no. substance in the contention of the learned counsel. it is true that Mr. Vikram Singh has stated in his order that the appellants are "likely to be ousted immediately. But the word "likely" qualifies not ousted but "immediately". The order proceeds to say that the appellants seriously opposed the action and then says that the D. C. Gurdaspur will be asked to ascertain if he can find land for the "oustees" of Bhaini Bangar. This would indicate that a decision had already been taken by Mr. Vikram Singh to the effect that "non-fauii allottees of Bhaini Bangar including the appellants should be ousted to make room for "faujit" families, immediate action was not taken because as stated in the order, a certain appeal was pending before this court. That appeal, it may be mentioned, was against the decision of the Punjab High Court in a petition filed before it by some other "non-fauji" allottees who have been ousted from their lands in order to allot those lands to "fauji" families. Subsequent to the decision of the Punjab High Court the Director of Relief and Refiabilitation, Punjab, passed the aforesaid order dated October 9, 1951 cancelling the allotment in favour of the appellants in order to accommodate the persons who had succeeded in the petition before the Punjab High Court.6. We would like to point out that the appellants had themselves accepted the order dated October 9, 1951, as being a final order because in their petition to the High Court they had asked for its cancellation. It was only during the arguments that a contention was raised on their behalf that the order was not final. In our opinion, they cannot be permitted to raise a contention which is clearly contrary to the stand taken by them in their writ petition.7. The question then is whether the order of Mr. Vikram Singh could be implemented subsequent to June 15, 1952. The action which was taken against the appellant was under the notification of the Punjab Government in Relief and Rehabilitation Department No. 8689-S (Rein) dated August 29, 1951. Learned counsel points out that the rules contained in the aforesaid notification were repealed by notification No. S. R. O. 1290 dated July 22, 1952, and though R. 49 saved "anything done or any action taken in the exercise of any power conferred by any of the rules", it was the second proviso to R. 49 which prohibited the implementation of any order made under the repealed rules before May 25, 1952, unless that order was implemented or enforced on or before June 15, 1952. Rule 49 was amended on August 4, 1952 and the second proviso was deleted. The resultant position, therefore, is that the non-implementation of an order on or before June 15, l952, would not prohibit its implementation subsequent to that date.8. The other contention of Mr. Gopal Singh pertains to the second order of Khosla, J., which in effect, reviews his prior order. Learned counsel contends that Art. 226 of the Constitution does not confer any power on the High Court to review its own order and, therefore, the second order of Khosla, J., was without jurisdiction. It is sufficient to say that there is nothing in Art. 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. Here the previous order of Khosla, J., affected the interests of persons who were not made parties to the proceeding before him. It was at their instance and for giving them a hearing that Khosla J. entertained the second petition. In doing so, he merely did what the principles of natural justice required him to do. It is said that the respondents before us had no. right to apply for review because they were not parties to the previous proceedings. As we have already pointed out, it is precisely because they were not made parties to the previous proceedings, though their interests were sought to be affected by the decision of the High Court, that the second application was e entertained by Khosla, J.
### Response:
0
### Explanation:
4. It was not contended before us that the Director of Rehabilitation had no. power to declare a village as a "Fauji" village nor was it contended that an allotment made in favour of a displaced person could never be cancelled. What was, however, contended was that by virtue of Rules 14(6) and 49 of the Administration of Evacuee Property (Central) Rules, 1950, the power to cancel an allotment could not be exercised after July 22, 1952 and that in any case the cancellation of allotment made even prior to this date could not be implemented if it was not implemented before1952. This argument is based on R. 49 which was added on July 22, 1952 and reads as follows :"49.Rules contained in the following notifications, namely :(i) the notification of the Government of Punjab in the Relief and Rehabilitation Department No.(Reh), dated the 29th August, 1951; and(ii) the notification of the Government of Patiala and East Punjab States Union in the Relief and Rehabilitation Department No. 2 dated the 19th February, 1952, are hereby repealed :Provided that subject to the next succeeding proviso anything done on any action taken in exercise of any power conferred by any of the said Rules shall be deemed to have been done or taken under the corresponding provision of these Rules :Provided that no. order other than an order in an appeal made in exercise of any power conferred by any of the said Rules shall haveif it was made after the 25th May, 1952, or(b) if it was made on or before the 25th May, 1952, was not implemented or enforced on or before the 15th June, 1952.We would like to point out that the appellants had themselves accepted the order dated October 9, 1951, as being a final order because in their petition to the High Court they had asked for its cancellation. It was only during the arguments that a contention was raised on their behalf that the order was not final. In our opinion, they cannot be permitted to raise a contention which is clearly contrary to the stand taken by them in their writis sufficient to say that there is nothing in Art. 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. Here the previous order of Khosla, J., affected the interests of persons who were not made parties to the proceeding before him. It was at their instance and for giving them a hearing that Khosla J. entertained the second petition. In doing so, he merely did what the principles of natural justice required him to do. It is said that the respondents before us had no. right to apply for review because they were not parties to the previous proceedings. As we have already pointed out, it is precisely because they were not made parties to the previous proceedings, though their interests were sought to be affected by the decision of the High Court, that the second application was e entertained by Khosla, J.
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Kaushal Kishore & Others Vs. Ram Dev & Others | the debtors said anything in reply to the demand for payment. Therefore the evidence of this witness does not establish the statements alleged to have been made by Bhowani Pershad and Shiv Shanker. He does not say that any one else was with him when he is said to have made the demand. With regard to this witness the trial Court remarked that he was an interested witness. There is nothing to show that this remark was not justified. The High Court stated that this witness had said that he was told that the debtors were not making any payment. The High Court was obviously in error in this. All that the witness appears to have stated is as follows :"The respondents are not making payment to the creditors nowadays."The witness therefore did not intend to say that he was told by the debtors that they were not making any payments to their creditors. He only intended to convey that in fact at or about the time he was giving evidence which was a year after the date of the alleged incident, the debtors were not making payment to their creditors. With this we are not concerned. The High Court also remarked that the witness was not cross-examined on this part of his evidence. We are in agreement with learned counsel for the appellants that there was nothing to cross-examine. The absence of cross-examination dies not establish the incident. The evidence of this witness does not, in our view, establish the facts on which the petitioning creditors rely. Indeed learned counsel for the petitioning creditors conceded that this witness was not speaking about the incident of 18-4-1950, at all.7. The next witness called by the petitioning creditors is also of the name of Phul Chand but he is the son of Sham Sunder. He stated that in April 1950, Mohan Lal, Gujjar Mal, Nand Kishore, Ram Dev and Murari Mal and he himself went to Bhowani Pershad-Shiv Shankar, which obviously meant the shop of that name, and asked Shiv Shankar to pay but Shiv Shankar replied that he had no. money with him at that time and that the creditors could do whatever they liked. This witness stated that he was a Chaudhry of Anaj Mandi at Rewari and a member of the Trade Conciliation Committee of that place. With regard to this witness the trial Judge stated that he was a man of ordinary status and did not appear to be above approach or corruption. From the materials on the record we are unable to say that this remark of the trial Judge was not justified. However that may be, it would appear that the incident spoken to by him could not have taken place if the other Phul Chand was right for the latter said that the shop of Bhowani Pershad Shiv Shankar had been closed for six years prior to May 1951. This witness did not mention the presence of Bhowani Pershad.8. Then we come to Balmukand. He also said that several people went to make the demand and Shiv Shankar stated that there was no. money at that time, and that the creditors could do what they liked. He definitely stated that Bhowani Pershad was not present when the demand was made. The High Court erroneously thought that this witness had said that Bhowani Pershad was present.9. Then came Gujjar Mal who said that when the party went to make the demand of payment of the debt they met Bhowani Pershad and Shiv Shankar both and both of them said that they had no. money with them and that they would not pay. Clearly Gujjar Mal contradicted Balmukand with regard to the presence of Bhowani Pershad.10. Another witness was Budh Ram. All that he said was, "the opposite party refused to make the payment. They said they would not pay the amount." The evidence of the last witness Ram Dev was to the same effect.11. On this state of the evidence we are of opinion that it cannot be said that it has been proved that any demand was made on Shiv Shankar or Bhowani Pershad, or that they said that they had no. money or would not pay and that the creditors could do what they liked. That witness contradicted each other as to the presence of Bhowani Pershad, as to the possibility of going to the shop of Bhowani Pershad-Shiv Shankar, that is to say, whether it was running or had been closed, as to what was said and by whom. The last two witnesses did not at all say of whom the demand was made or who gave the reply to the demand. On this evidence it is impossible to adjudicate a person as insolvent. This view receives great support from the manner in which the giving of the notice of suspension of payment of debts is alleged in the petition. There no. incident happening on any particular date is mentioned, nor is it said who it was that spoke the words which are said to amount to an act of insolvency. This statement in the petition would show the petitioning creditors case to have been that the notice of suspension of payment of debts was being given for a whole month. This could not have happened if the facts spoken to by some of the witnesses had actually happened.12. We, therefore, come to the conclusion that it has not been proved that the debtors made any statement that they were suspending payment of their debts and this appeal should be allowed on that ground only.13. In this view of the matter the question whether the statement alleged if proved, would amount in law to an act of insolvency does not arise. Nor is it necessary for us to go into the other question which was discussed in the courts below, namely, whether by reason of a partition in the family of the debtors none but Shiv Shankar alone could be adjudged insolvent. | 1[ds]Learned Counsel for the appellants has contended that the evidence led did not establish any of the facts which the petitioning creditors set out to do. He pointed out that the trial Court which heard the evidence, did not believe the witnesses called by the petitioning creditors and that the court of first appeal did not examine the facts itself but proceeded on an erroneous impression that the trial Court had believed the evidence.In both these contentions learned counsel for the appellants was clearly right. In our view, for the reasons earlier stated the High Court was under the same misapprehension as the District Judge. This undoubtedly affected the examination of the evidence by the High Court itself. We have, therefore to examine the evidence ourselves.On this state of the evidence we are of opinion that it cannot be said that it has been proved that any demand was made on Shiv Shankar or Bhowani Pershad, or that they said that they had no. money or would not pay and that the creditors could do what they liked. That witness contradicted each other as to the presence of Bhowani Pershad, as to the possibility of going to the shop of BhowaniShankar, that is to say, whether it was running or had been closed, as to what was said and by whom. The last two witnesses did not at all say of whom the demand was made or who gave the reply to the demand. On this evidence it is impossible to adjudicate a person as insolvent. This view receives great support from the manner in which the giving of the notice of suspension of payment of debts is alleged in the petition. There no. incident happening on any particular date is mentioned, nor is it said who it was that spoke the words which are said to amount to an act of insolvency. This statement in the petition would show the petitioning creditors case to have been that the notice of suspension of payment of debts was being given for a whole month. This could not have happened if the facts spoken to by some of the witnesses had actually happened.12. We, therefore, come to the conclusion that it has not been proved that the debtors made any statement that they were suspending payment of their debts and this appeal should be allowed on that ground only.13. In this view of the matter the question whether the statement alleged if proved, would amount in law to an act of insolvency does not arise. Nor is it necessary for us to go into the other question which was discussed in the courts below, namely, whether by reason of a partition in the family of the debtors none but Shiv Shankar alone could be adjudged insolvent. | 1 | 2,326 | 500 | ### Instruction:
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the debtors said anything in reply to the demand for payment. Therefore the evidence of this witness does not establish the statements alleged to have been made by Bhowani Pershad and Shiv Shanker. He does not say that any one else was with him when he is said to have made the demand. With regard to this witness the trial Court remarked that he was an interested witness. There is nothing to show that this remark was not justified. The High Court stated that this witness had said that he was told that the debtors were not making any payment. The High Court was obviously in error in this. All that the witness appears to have stated is as follows :"The respondents are not making payment to the creditors nowadays."The witness therefore did not intend to say that he was told by the debtors that they were not making any payments to their creditors. He only intended to convey that in fact at or about the time he was giving evidence which was a year after the date of the alleged incident, the debtors were not making payment to their creditors. With this we are not concerned. The High Court also remarked that the witness was not cross-examined on this part of his evidence. We are in agreement with learned counsel for the appellants that there was nothing to cross-examine. The absence of cross-examination dies not establish the incident. The evidence of this witness does not, in our view, establish the facts on which the petitioning creditors rely. Indeed learned counsel for the petitioning creditors conceded that this witness was not speaking about the incident of 18-4-1950, at all.7. The next witness called by the petitioning creditors is also of the name of Phul Chand but he is the son of Sham Sunder. He stated that in April 1950, Mohan Lal, Gujjar Mal, Nand Kishore, Ram Dev and Murari Mal and he himself went to Bhowani Pershad-Shiv Shankar, which obviously meant the shop of that name, and asked Shiv Shankar to pay but Shiv Shankar replied that he had no. money with him at that time and that the creditors could do whatever they liked. This witness stated that he was a Chaudhry of Anaj Mandi at Rewari and a member of the Trade Conciliation Committee of that place. With regard to this witness the trial Judge stated that he was a man of ordinary status and did not appear to be above approach or corruption. From the materials on the record we are unable to say that this remark of the trial Judge was not justified. However that may be, it would appear that the incident spoken to by him could not have taken place if the other Phul Chand was right for the latter said that the shop of Bhowani Pershad Shiv Shankar had been closed for six years prior to May 1951. This witness did not mention the presence of Bhowani Pershad.8. Then we come to Balmukand. He also said that several people went to make the demand and Shiv Shankar stated that there was no. money at that time, and that the creditors could do what they liked. He definitely stated that Bhowani Pershad was not present when the demand was made. The High Court erroneously thought that this witness had said that Bhowani Pershad was present.9. Then came Gujjar Mal who said that when the party went to make the demand of payment of the debt they met Bhowani Pershad and Shiv Shankar both and both of them said that they had no. money with them and that they would not pay. Clearly Gujjar Mal contradicted Balmukand with regard to the presence of Bhowani Pershad.10. Another witness was Budh Ram. All that he said was, "the opposite party refused to make the payment. They said they would not pay the amount." The evidence of the last witness Ram Dev was to the same effect.11. On this state of the evidence we are of opinion that it cannot be said that it has been proved that any demand was made on Shiv Shankar or Bhowani Pershad, or that they said that they had no. money or would not pay and that the creditors could do what they liked. That witness contradicted each other as to the presence of Bhowani Pershad, as to the possibility of going to the shop of Bhowani Pershad-Shiv Shankar, that is to say, whether it was running or had been closed, as to what was said and by whom. The last two witnesses did not at all say of whom the demand was made or who gave the reply to the demand. On this evidence it is impossible to adjudicate a person as insolvent. This view receives great support from the manner in which the giving of the notice of suspension of payment of debts is alleged in the petition. There no. incident happening on any particular date is mentioned, nor is it said who it was that spoke the words which are said to amount to an act of insolvency. This statement in the petition would show the petitioning creditors case to have been that the notice of suspension of payment of debts was being given for a whole month. This could not have happened if the facts spoken to by some of the witnesses had actually happened.12. We, therefore, come to the conclusion that it has not been proved that the debtors made any statement that they were suspending payment of their debts and this appeal should be allowed on that ground only.13. In this view of the matter the question whether the statement alleged if proved, would amount in law to an act of insolvency does not arise. Nor is it necessary for us to go into the other question which was discussed in the courts below, namely, whether by reason of a partition in the family of the debtors none but Shiv Shankar alone could be adjudged insolvent.
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Learned Counsel for the appellants has contended that the evidence led did not establish any of the facts which the petitioning creditors set out to do. He pointed out that the trial Court which heard the evidence, did not believe the witnesses called by the petitioning creditors and that the court of first appeal did not examine the facts itself but proceeded on an erroneous impression that the trial Court had believed the evidence.In both these contentions learned counsel for the appellants was clearly right. In our view, for the reasons earlier stated the High Court was under the same misapprehension as the District Judge. This undoubtedly affected the examination of the evidence by the High Court itself. We have, therefore to examine the evidence ourselves.On this state of the evidence we are of opinion that it cannot be said that it has been proved that any demand was made on Shiv Shankar or Bhowani Pershad, or that they said that they had no. money or would not pay and that the creditors could do what they liked. That witness contradicted each other as to the presence of Bhowani Pershad, as to the possibility of going to the shop of BhowaniShankar, that is to say, whether it was running or had been closed, as to what was said and by whom. The last two witnesses did not at all say of whom the demand was made or who gave the reply to the demand. On this evidence it is impossible to adjudicate a person as insolvent. This view receives great support from the manner in which the giving of the notice of suspension of payment of debts is alleged in the petition. There no. incident happening on any particular date is mentioned, nor is it said who it was that spoke the words which are said to amount to an act of insolvency. This statement in the petition would show the petitioning creditors case to have been that the notice of suspension of payment of debts was being given for a whole month. This could not have happened if the facts spoken to by some of the witnesses had actually happened.12. We, therefore, come to the conclusion that it has not been proved that the debtors made any statement that they were suspending payment of their debts and this appeal should be allowed on that ground only.13. In this view of the matter the question whether the statement alleged if proved, would amount in law to an act of insolvency does not arise. Nor is it necessary for us to go into the other question which was discussed in the courts below, namely, whether by reason of a partition in the family of the debtors none but Shiv Shankar alone could be adjudged insolvent.
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S. Govinda Menon Vs. The Union Of India & Anr | by res judicata by reason of the decision of the Kerala High Court in S. Govinda Menon v. State of Kerala 1963 KLT.1162. In that case, the order of suspension was challenged by the appellant by a writ petition in O. P. No. 485 of 1963 which was dismissed by Vaidialingam, J. Against that decision the appellant preferred an appeal which was dismissed by the Division Bench. It was contended by the appellant that the only issue considered in that case was whether the appellant could be suspended before the charges were framed and the rule of res judicata was not applicable. We shall assume in favour of the appellant that the question is not barred by res judicata. Even so, we are of the opinion that there is no substance in the contention of the appellant that there was no valid institution of the disciplinary proceedings under R.4(1). A persual of the order of the Government, Ex. P-1 would itself indicate that disciplinary proceedings had been initiated against the appellant. Exhibit P-1 reads as follows:"The Government have received several petitions containing serious allegations of official misconduct against Sri S. Govinda Menon. I. A. S., First Member, Board of Revenue, and formerly Commissioner, Hindu Religious and Charitable Endowments (Administration). Preliminary enquires caused to be conducted into the allegations have shown prima facie, that the officer is guilty of corruption, nepotism and other irregularities of a grave nature. The Kerala High Court had also occasion to comment on the conduct of the officer in their judgment in O. P. 2306/62 delivered on 12th February 1963. The judgment begins with the observation thatthis case, if it has served little else, has served to expose a disquieting state of affairs regarding the disposal of valuable forest lands belonging to a religious institution known as the Sree Pulpally Devaswom of which I trust due notice will be taken by the competent authority in the interests of the public administration and preservation of our forest wealth no less than in the interests of this particular institution.The judgment in the above case and the preliminary report of the X-Branch Police have disclosed the following grave charges of the serious irregularity and official misconduct on the part of the accused officer.The detailed enquiry into the charges by the X-Branch is in progress. The evidence in the case has to be collected from a large number of officers who are subordinate to the accused officer in his capacity as First Member of the Board of Revenue. In the interest of the proper conduct of the enquiry it is necessary that the officer should not be allowed to continue in that post. Having regard to the nature of the charges against the officer and the circumstances the proper course would be to place him under suspension. Shri S. Govinda Menon, I. A. S. First Member, Board of Revenue, is therefore placed under suspension under R.7 of the All India Services (Discipline and Appeal) R.1955 till the disciplinary proceedings initiated against him are completed."A perusal of this document shows that the Government had accepted the proceedings taken in the matter until that date and had decided to go forward with the disciplinary proceedings. In our opinion, there is no formal order necessary to initiate disciplinary proceedings under R.4(1) of the Rules and the order of the State Government under Ext. P-1 must be deemed to be an order under R.4(1) of the Rules initiating disciplinary proceedings.13. It was lastly submitted that the order of suspension of the appellant dated March 8, 1963 is not in compliance with R.7 of the Rules which states:7. Suspension during disciplinary proceedings. (1) If having regard to the nature of the charges and the circumstances in any case, the Government which initiates any disciplinary proceedings is satisfied that it is necessary or desirable to place under suspension the member of the Service against whom such proceedings are started that Government may(a) if the member of the Service is serving under H pass an order placing him under suspension, or ...............................................It was pointed out that definite charges were framed on June 6,1963 and the Government had no authority to suspend the appellant before the date of framing charges. Reference was made to R.5(2) which states:"5. (2) The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges, which shall be communicated to the member of the Service charged together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case."It was argued by the appellant that the word "charges" which occurs in R.5(2) and R.7 should be given the same meaning and no order of suspension could be passed under R.7 before the charges are framed under R.5(2) against the appellant. We do not think there is any substance in this argument. R.5(2) prescribes that the grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges. Under R.5(3) a member of the Service is required to submit a written statement of his defence to the charge or charges. The framing of the charge under R.5(2) is necessary to enable the member of Service to meet the case against him. The language of R.7(1) is however different and that rule provides that the Government may place a member of the Service under suspension "having regard to the nature of the charge/charges and the circumstances in any case" if the Government is satisfied that it is necessary to place him under suspension. In view of the difference of language in R.5(2) and R.7 we are of the opinion that the word "charges" in R.7(1) should be given a wider meaning as denoting the accusations or imputations against the member of the Service. We accordingly reject the argument of the appellant on this aspect of the case. | 1[ds]It is not disputed that the appropriate Government has power to take disciplinary proceedings against the appellant and that he could be removed from service by an order of the Central Government, but it was contended that I. A. S. Officers are governed by statutory rules, thatany act or omission referred to in R.4(1) relates only to an act or omission of an officer when serving under the Government, and that servingunder the Government means subject to the administrative control of the Government and that disciplinary proceedings should be, therefore, on the basis of the relationship of master andare unable to accept the proposition. contended for by the appellant as correct. R.4 (1) does not impose any limitation or qualification as to the nature of the act or omission in respect of which disciplinary proceedings" can be instituted. R.4 (1) (b) merely says that the appropriate Government competent to institute disciplinary proceedings against a member of the Service would be the Government under whom such member was serving at the time of the commission of such act or omission. It does not say that the act or omission must have been committed in the discharge of his duty or in the course of his employment as a Government servant. It is therefore open to the Government to take disciplinary proceedings against the appellant in respect of his acts or omissions which cast a reflection upon his reputation for integrity or good faith or devotion to duty as a member of the Service. It is not disputed that the appellant was, at the time of the alleged misconduct, employed as the First Member of the Board of Revenue and he was at the same time performing the duties of Commissioner under the Act in addition to his duties as the First Member of the Board of Revenue. In our opinion, it is not necessary that a member of the Service should have committed the alleged act or omission in the course of discharge of his duties as a servant of the Government in order that it may form the subject-matter of disciplinary proceedings. In other words, if the act or omission is such as to reflect on the reputation of the officer for his integrity or good faith or devotion to duty, there is no reason why disciplinary proceedings should not be taken against him for that act or omission even though the act or omission relates to an activity in regard to which there is no actual master and servant relationship. To put it differently, the test is not whether the act or omission was committed by the appellant in the course of the discharge of his duties as servant of the Government. The test is whether the act or omission has some reasonable connection with the nature and condition of his service or whether the act or omission has cast any reflection upon the reputation of the member of the Service for integrity or devotion to duty as a public servant. We are of the opinion that even if the appellant was not subject to the administrative control of the Government when he was functioning as Commissioner under the Act and was not the servant of the Government subject to its orders at the relevant time, his act or omission as Commissioner could form the subject-matter of disciplinary proceedings provided the act or omission would reflect upon his reputation for integrity or devotion to duty as a member of thedo not think there is any substance in this argument. It is true that the Commissioner has been made a Corporation sole under S.80 of the Act which states that the Commissioner shall have perpetual succession and a common seal and may sue and be sued in his corporate name. S.81 (1) of the Act provides for the establishment of a Fund called The Madras Hindu Religious and Charitable Endowments Administration Fund and further states that the Fund shall vest in theaccordingly reject the contention of the appellant that the Commissioner has a separate legal personality as corporation sole under S.80 of the Act and that he is exempt from disciplinary proceedings for any act or omission committed in his capacity as Commissioner. In our opinion, the object of the legislature in enacting S.80 and 81 of the Act was to constitute a separate Fund and to provide for the vesting of that Fund in the Commissioner as a corporation sole and thereby avoid the necessity of periodic conveyances in the transmission of title to thatis apparent that the first part of charge No.1 read with the relevant allegations is that in utter disregard of the provisions of S.29 of the Act and the Rules and without being satisfied that the bases were beneficial to the devaswoms the appellant sanctioned them and this action of the appellant discloses misconduct, irregularity and gross recklessness in the discharge of his official duties. The charge is therefore one of misconduct and recklessness disclosed by the utter disregard of the relevant provisions of S.29 and the Rules thereunder in sanctioning thewe shall proceed on the assumption that the commissioner was performing quasi-judicial functions in granting leases under S.29 of the Act. Even upon that assumption we are satisfied that the Government was entitled to institute disciplinary proceedings if there was prima facie material for showing recklessness or misconduct on the part of the appellant in the discharge of his official duty. It is true that if the provisions of S.29 of the Act or the Rules are disregarded the order of the commissioner is illegal and such an order could be questioned in appeal under S.29 (4) or in revision under S.99 of the Act. But in the present proceedings what is sought to be challenged is not the correctness or the legality of the decision of the commissioner but the conduct of the appellant in the discharge of his duties as commissioner. The appellant was proceeded against because in the discharge of his functions he acted in utter disregard of the provisions of the Act and the Rules. It is the manner in which he discharged his functions that is brought up in these proceeding. In other words, the charge and the allegations are to the effect that in exercising his powers as commissioner the appellant acted in abuse of his power and it was in regard to such misconduct that he is being proceeded against. It is manifest therefore that though the propriety and legality of the sanction to the leases may be questioned in appeal or revision under the Act, the Government is not precluded from taking disciplinary action if there is proof that the commissioner had acted in gross recklessness in the discharge of his duties or that he failed to act honestly or in good faith or that he omitted to observe the prescribed conditions which are essential for the exercise of the statutory power. We see no reason why the Government cannot do so for the purpose of showing that the commissioner acted in utter disregard of the conditions prescribed for the exercise of his power or that he was guilty of misconduct or gross negligence. We are accordingly of the opinion that the appellant has been unable to make good his argument on this aspect of theare unable to accept this argument as correct. The statement of allegations in respect of charge No.1 sets out the provisions of S.29 of the Act, the rules made under cls. (1) and (3) of that section and the rules made under S.100(2)(m) of thedo not think there is any substance in this argument because it is open to the trustee to hold the auction in the first place under R.1 even in the case of a lease for a period over 5 years and then send the proposal to the commissioner for sanction. We are accordingly of the opinion that R.1 made under S.100(2) (m) of the Act providing for auction applies to leases for over 5 years under S.29 of the Act and the commissioner had therefore no authority for sanctioning any leases without auction under S.29(1) of the Act. In other words, R.1 requiring public auction framed under S.100(2)(m) covers all leases and there is no exception in respect of leases exceeding 5 years falling within the scope of S.29(1) of the Act. We accordingly reject the argument of the appellant on this aspect of theis not disputed by the appellant that the trustee is the proper person to initiate a proposal for lease of the trust properties, but it is argued that under S.20 of the Act the commissioner can make specific proposals for leases and that he can himself sanction them under S.29. The first part of S.20 speaks of the general superintendence and control of the commissioner over the administration of all religious endowments. The section goes on to state that such superintendence and control shall include the power to pass an order which may be necessary to ensure that such endowments are properly administered and their income is really appropriated for the purpose for which they were founded. In our opinion, the language of this section does not suggest that the commissioner himself is vested with the power to make specific proposals for leases of trust properties. Under S.29 of the Act the commissioner is given a specific power to accord sanction for any alienation and for leases for a term exceeding 5 years. That section implies that the the proposals for leases must originate from the trustees and not from the commissioner himself and that the only function of the commissioner is to accord sanction to such proposals. If the language of S.20 is understood as suggesting that the commissioner has power to initiate proposals it would mean that the commissioner himself may sit in judgment over the proposals initiated by him. It cannot be supposed that the legislature contemplated such a consequence. In this context it is necessary to remember that under the general law the trustee is the person competent to make alienation or grant lease of Devaswom properties. It is true that the legislature has put a restriction on the power of alienation and the power of granting leases by S.29 of the Act, but the statutory restriction on the power of the trustee should not be interpreted in such a way as to abrogate all his power in respect of alienation or lease. We are accordingly of the opinion that the commissioner has no power to initiate specific proposals for lease of the trust properties and the argument of the appellant on this point must beshall assume in favour of the appellant that the question is not barred by res judicata. Even so, we are of the opinion that there is no substance in the contention of the appellant that there was no valid institution of the disciplinary proceedings under R.4(1). A persual of the order of the Government, Ex. P-1 would itself indicate that disciplinary proceedings had been initiated against theperusal of this document shows that the Government had accepted the proceedings taken in the matter until that date and had decided to go forward with the disciplinary proceedings. In our opinion, there is no formal order necessary to initiate disciplinary proceedings under R.4(1) of the Rules and the order of the State Government under Ext. P-1 must be deemed to be an order under R.4(1) of the Rules initiating disciplinarydo not think there is any substance in this argument. R.5(2) prescribes that the grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges. Under R.5(3) a member of the Service is required to submit a written statement of his defence to the charge or charges. The framing of the charge under R.5(2) is necessary to enable the member of Service to meet the case against him. The language of R.7(1) is however different and that rule provides that the Government may place a member of the Service under suspension "having regard to the nature of the charge/charges and the circumstances in any case" if the Government is satisfied that it is necessary to place him under suspension. In view of the difference of language in R.5(2) and R.7 we are of the opinion that the word "charges" in R.7(1) should be given a wider meaning as denoting the accusations or imputations against the member of the Service. We accordingly reject the argument of the appellant on this aspect of the case. | 1 | 7,432 | 2,249 | ### 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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by res judicata by reason of the decision of the Kerala High Court in S. Govinda Menon v. State of Kerala 1963 KLT.1162. In that case, the order of suspension was challenged by the appellant by a writ petition in O. P. No. 485 of 1963 which was dismissed by Vaidialingam, J. Against that decision the appellant preferred an appeal which was dismissed by the Division Bench. It was contended by the appellant that the only issue considered in that case was whether the appellant could be suspended before the charges were framed and the rule of res judicata was not applicable. We shall assume in favour of the appellant that the question is not barred by res judicata. Even so, we are of the opinion that there is no substance in the contention of the appellant that there was no valid institution of the disciplinary proceedings under R.4(1). A persual of the order of the Government, Ex. P-1 would itself indicate that disciplinary proceedings had been initiated against the appellant. Exhibit P-1 reads as follows:"The Government have received several petitions containing serious allegations of official misconduct against Sri S. Govinda Menon. I. A. S., First Member, Board of Revenue, and formerly Commissioner, Hindu Religious and Charitable Endowments (Administration). Preliminary enquires caused to be conducted into the allegations have shown prima facie, that the officer is guilty of corruption, nepotism and other irregularities of a grave nature. The Kerala High Court had also occasion to comment on the conduct of the officer in their judgment in O. P. 2306/62 delivered on 12th February 1963. The judgment begins with the observation thatthis case, if it has served little else, has served to expose a disquieting state of affairs regarding the disposal of valuable forest lands belonging to a religious institution known as the Sree Pulpally Devaswom of which I trust due notice will be taken by the competent authority in the interests of the public administration and preservation of our forest wealth no less than in the interests of this particular institution.The judgment in the above case and the preliminary report of the X-Branch Police have disclosed the following grave charges of the serious irregularity and official misconduct on the part of the accused officer.The detailed enquiry into the charges by the X-Branch is in progress. The evidence in the case has to be collected from a large number of officers who are subordinate to the accused officer in his capacity as First Member of the Board of Revenue. In the interest of the proper conduct of the enquiry it is necessary that the officer should not be allowed to continue in that post. Having regard to the nature of the charges against the officer and the circumstances the proper course would be to place him under suspension. Shri S. Govinda Menon, I. A. S. First Member, Board of Revenue, is therefore placed under suspension under R.7 of the All India Services (Discipline and Appeal) R.1955 till the disciplinary proceedings initiated against him are completed."A perusal of this document shows that the Government had accepted the proceedings taken in the matter until that date and had decided to go forward with the disciplinary proceedings. In our opinion, there is no formal order necessary to initiate disciplinary proceedings under R.4(1) of the Rules and the order of the State Government under Ext. P-1 must be deemed to be an order under R.4(1) of the Rules initiating disciplinary proceedings.13. It was lastly submitted that the order of suspension of the appellant dated March 8, 1963 is not in compliance with R.7 of the Rules which states:7. Suspension during disciplinary proceedings. (1) If having regard to the nature of the charges and the circumstances in any case, the Government which initiates any disciplinary proceedings is satisfied that it is necessary or desirable to place under suspension the member of the Service against whom such proceedings are started that Government may(a) if the member of the Service is serving under H pass an order placing him under suspension, or ...............................................It was pointed out that definite charges were framed on June 6,1963 and the Government had no authority to suspend the appellant before the date of framing charges. Reference was made to R.5(2) which states:"5. (2) The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges, which shall be communicated to the member of the Service charged together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case."It was argued by the appellant that the word "charges" which occurs in R.5(2) and R.7 should be given the same meaning and no order of suspension could be passed under R.7 before the charges are framed under R.5(2) against the appellant. We do not think there is any substance in this argument. R.5(2) prescribes that the grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges. Under R.5(3) a member of the Service is required to submit a written statement of his defence to the charge or charges. The framing of the charge under R.5(2) is necessary to enable the member of Service to meet the case against him. The language of R.7(1) is however different and that rule provides that the Government may place a member of the Service under suspension "having regard to the nature of the charge/charges and the circumstances in any case" if the Government is satisfied that it is necessary to place him under suspension. In view of the difference of language in R.5(2) and R.7 we are of the opinion that the word "charges" in R.7(1) should be given a wider meaning as denoting the accusations or imputations against the member of the Service. We accordingly reject the argument of the appellant on this aspect of the case.
### Response:
1
### Explanation:
revision under the Act, the Government is not precluded from taking disciplinary action if there is proof that the commissioner had acted in gross recklessness in the discharge of his duties or that he failed to act honestly or in good faith or that he omitted to observe the prescribed conditions which are essential for the exercise of the statutory power. We see no reason why the Government cannot do so for the purpose of showing that the commissioner acted in utter disregard of the conditions prescribed for the exercise of his power or that he was guilty of misconduct or gross negligence. We are accordingly of the opinion that the appellant has been unable to make good his argument on this aspect of theare unable to accept this argument as correct. The statement of allegations in respect of charge No.1 sets out the provisions of S.29 of the Act, the rules made under cls. (1) and (3) of that section and the rules made under S.100(2)(m) of thedo not think there is any substance in this argument because it is open to the trustee to hold the auction in the first place under R.1 even in the case of a lease for a period over 5 years and then send the proposal to the commissioner for sanction. We are accordingly of the opinion that R.1 made under S.100(2) (m) of the Act providing for auction applies to leases for over 5 years under S.29 of the Act and the commissioner had therefore no authority for sanctioning any leases without auction under S.29(1) of the Act. In other words, R.1 requiring public auction framed under S.100(2)(m) covers all leases and there is no exception in respect of leases exceeding 5 years falling within the scope of S.29(1) of the Act. We accordingly reject the argument of the appellant on this aspect of theis not disputed by the appellant that the trustee is the proper person to initiate a proposal for lease of the trust properties, but it is argued that under S.20 of the Act the commissioner can make specific proposals for leases and that he can himself sanction them under S.29. The first part of S.20 speaks of the general superintendence and control of the commissioner over the administration of all religious endowments. The section goes on to state that such superintendence and control shall include the power to pass an order which may be necessary to ensure that such endowments are properly administered and their income is really appropriated for the purpose for which they were founded. In our opinion, the language of this section does not suggest that the commissioner himself is vested with the power to make specific proposals for leases of trust properties. Under S.29 of the Act the commissioner is given a specific power to accord sanction for any alienation and for leases for a term exceeding 5 years. That section implies that the the proposals for leases must originate from the trustees and not from the commissioner himself and that the only function of the commissioner is to accord sanction to such proposals. If the language of S.20 is understood as suggesting that the commissioner has power to initiate proposals it would mean that the commissioner himself may sit in judgment over the proposals initiated by him. It cannot be supposed that the legislature contemplated such a consequence. In this context it is necessary to remember that under the general law the trustee is the person competent to make alienation or grant lease of Devaswom properties. It is true that the legislature has put a restriction on the power of alienation and the power of granting leases by S.29 of the Act, but the statutory restriction on the power of the trustee should not be interpreted in such a way as to abrogate all his power in respect of alienation or lease. We are accordingly of the opinion that the commissioner has no power to initiate specific proposals for lease of the trust properties and the argument of the appellant on this point must beshall assume in favour of the appellant that the question is not barred by res judicata. Even so, we are of the opinion that there is no substance in the contention of the appellant that there was no valid institution of the disciplinary proceedings under R.4(1). A persual of the order of the Government, Ex. P-1 would itself indicate that disciplinary proceedings had been initiated against theperusal of this document shows that the Government had accepted the proceedings taken in the matter until that date and had decided to go forward with the disciplinary proceedings. In our opinion, there is no formal order necessary to initiate disciplinary proceedings under R.4(1) of the Rules and the order of the State Government under Ext. P-1 must be deemed to be an order under R.4(1) of the Rules initiating disciplinarydo not think there is any substance in this argument. R.5(2) prescribes that the grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges. Under R.5(3) a member of the Service is required to submit a written statement of his defence to the charge or charges. The framing of the charge under R.5(2) is necessary to enable the member of Service to meet the case against him. The language of R.7(1) is however different and that rule provides that the Government may place a member of the Service under suspension "having regard to the nature of the charge/charges and the circumstances in any case" if the Government is satisfied that it is necessary to place him under suspension. In view of the difference of language in R.5(2) and R.7 we are of the opinion that the word "charges" in R.7(1) should be given a wider meaning as denoting the accusations or imputations against the member of the Service. We accordingly reject the argument of the appellant on this aspect of the case.
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Commissioner of Income Tax Vs. Annamalaiar Mills | 1. We have heard learned Counsel for the parties and perused the impugned order dated January 20, 2004 passed by the Division Bench of the High Court of Judicature at Madras in T.C. No. 55 of 2001. Briefly stated, the facts of this case are as follows:M/s. Annamalaiar Mills (P.) Ltd., Respondent herein is a holding company of M/s. Annamalaiar Textiles (P.) Ltd. Hundred percent shares of M/s. Annamalaiar Textiles (P.) Ltd. were held by the Respondent-company. In the Respondent-company, there were two groups of shareholders; the majority shareholder called Group A was having 61.26 per cent shares whereas the minority shareholders called Group B were holding 38.74 percent, shares.2. An agreement was entered into between the two groups on June 24, 1985 by which Group A came to hold all the shares in the holding company, i.e., the Respondent herein and Group B was given 100 percent. shares in the subsidiary company, i.e., M/s. Annamalaiar Textiles (P.) Ltd. However, M/s. Annamalaiar Textiles (P.) Ltd. also paid a sum of Rs. 42.45 lakhs to the Respondent-company.3. Proceedings under the Gift-tax Act were initiated in respect of payment of Rs. 42.45 lakhs received by the Respondent-company. However, we are not concerned with the question of levy of gift-tax under the present proceedings.4. The Assessing Officer treated the amount of Rs. 42.45 lakhs paid by the M/s. Annamalaiar Textiles (P.) Ltd. to the Respondent-company as capital gains on the footing that since both the companies are now 100 percent. owned by Group A or Group B, as the case may be, payment of Rs. 42.45 lakhs was to offset valuation of the shares of M/s. Annamalaiar Textiles (P.) Ltd.5. The Assessing Officer opined that the Respondent herein-Assessee was liable to pay tax for capital gains which was upheld in the appeal before the Commissioner of Income-tax (Appeals). However, the Income-tax Appellate Tribunal, Madras, in appeal preferred by the Respondent herein accepted the pleas put forth by the Respondent herein, set aside the assessment and restored the matter to the Income-tax Officer so that the asses-see may approach the Central Board of Direct Taxes. The Income-tax Officer was further directed to finalise the assessment in accordance with the directions that may be given by the Central Board of Direct Taxes.6. The matter was taken up before the High Court of Madras and the order of the Tribunal was upheld by the Madras High Court.The sole question which arises for our consideration is as to whether the sum of Rs. 42.45 lakhs paid by M/s. Annamalaiar Textiles (P.) Ltd. to the Respondent-company is liable to any capital gains or not.7. It is not in dispute that M/s. Annamalaiar Textiles (P.) Ltd. did not pay any amount to the shareholders who ultimately got the shares transferred in their names. The Respondent was holding 100 percent. shares of M/s. Annamalaiar Textiles (P.) Ltd., before it was transferred to Group B. No payment was made to the shareholders belonging to Group B and, therefore, the question of there being any capital gains at the hands of the Respondent herein does not arise.8. Needless to mention that the transaction of payment of Rs. 42.45 lakhs had been subjected under the Gift-tax Act and the Department cannot claim both under the Gift-tax Act and also levy tax under the Income-tax Act. | 0[ds]7. It is not in dispute that M/s. Annamalaiar Textiles (P.) Ltd. did not pay any amount to the shareholders who ultimately got the shares transferred in their names. The Respondent was holding 100 percent. shares of M/s. Annamalaiar Textiles (P.) Ltd., before it was transferred to Group B. No payment was made to the shareholders belonging to Group B and, therefore, the question of there being any capital gains at the hands of the Respondent herein does not arise8. Needless to mention that the transaction of payment of Rs. 42.45 lakhs had been subjected under the Gift-tax Act and the Department cannot claim both under the Gift-tax Act and also levy tax under the Income-tax Act. | 0 | 638 | 138 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
### Input:
1. We have heard learned Counsel for the parties and perused the impugned order dated January 20, 2004 passed by the Division Bench of the High Court of Judicature at Madras in T.C. No. 55 of 2001. Briefly stated, the facts of this case are as follows:M/s. Annamalaiar Mills (P.) Ltd., Respondent herein is a holding company of M/s. Annamalaiar Textiles (P.) Ltd. Hundred percent shares of M/s. Annamalaiar Textiles (P.) Ltd. were held by the Respondent-company. In the Respondent-company, there were two groups of shareholders; the majority shareholder called Group A was having 61.26 per cent shares whereas the minority shareholders called Group B were holding 38.74 percent, shares.2. An agreement was entered into between the two groups on June 24, 1985 by which Group A came to hold all the shares in the holding company, i.e., the Respondent herein and Group B was given 100 percent. shares in the subsidiary company, i.e., M/s. Annamalaiar Textiles (P.) Ltd. However, M/s. Annamalaiar Textiles (P.) Ltd. also paid a sum of Rs. 42.45 lakhs to the Respondent-company.3. Proceedings under the Gift-tax Act were initiated in respect of payment of Rs. 42.45 lakhs received by the Respondent-company. However, we are not concerned with the question of levy of gift-tax under the present proceedings.4. The Assessing Officer treated the amount of Rs. 42.45 lakhs paid by the M/s. Annamalaiar Textiles (P.) Ltd. to the Respondent-company as capital gains on the footing that since both the companies are now 100 percent. owned by Group A or Group B, as the case may be, payment of Rs. 42.45 lakhs was to offset valuation of the shares of M/s. Annamalaiar Textiles (P.) Ltd.5. The Assessing Officer opined that the Respondent herein-Assessee was liable to pay tax for capital gains which was upheld in the appeal before the Commissioner of Income-tax (Appeals). However, the Income-tax Appellate Tribunal, Madras, in appeal preferred by the Respondent herein accepted the pleas put forth by the Respondent herein, set aside the assessment and restored the matter to the Income-tax Officer so that the asses-see may approach the Central Board of Direct Taxes. The Income-tax Officer was further directed to finalise the assessment in accordance with the directions that may be given by the Central Board of Direct Taxes.6. The matter was taken up before the High Court of Madras and the order of the Tribunal was upheld by the Madras High Court.The sole question which arises for our consideration is as to whether the sum of Rs. 42.45 lakhs paid by M/s. Annamalaiar Textiles (P.) Ltd. to the Respondent-company is liable to any capital gains or not.7. It is not in dispute that M/s. Annamalaiar Textiles (P.) Ltd. did not pay any amount to the shareholders who ultimately got the shares transferred in their names. The Respondent was holding 100 percent. shares of M/s. Annamalaiar Textiles (P.) Ltd., before it was transferred to Group B. No payment was made to the shareholders belonging to Group B and, therefore, the question of there being any capital gains at the hands of the Respondent herein does not arise.8. Needless to mention that the transaction of payment of Rs. 42.45 lakhs had been subjected under the Gift-tax Act and the Department cannot claim both under the Gift-tax Act and also levy tax under the Income-tax Act.
### Response:
0
### Explanation:
7. It is not in dispute that M/s. Annamalaiar Textiles (P.) Ltd. did not pay any amount to the shareholders who ultimately got the shares transferred in their names. The Respondent was holding 100 percent. shares of M/s. Annamalaiar Textiles (P.) Ltd., before it was transferred to Group B. No payment was made to the shareholders belonging to Group B and, therefore, the question of there being any capital gains at the hands of the Respondent herein does not arise8. Needless to mention that the transaction of payment of Rs. 42.45 lakhs had been subjected under the Gift-tax Act and the Department cannot claim both under the Gift-tax Act and also levy tax under the Income-tax Act.
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Chinta Lingam & Ors Vs. Government Of India & Ors | prevent Parliament from making any law giving, or authorising the giving of, any preference or making or authorising the making of, any discrimination if it is declared by such law that it is necessary to do so for the purpose of dealing with a situation arising from scarcity of goods in any part of the territory of India"Now the Control Orders were made under section 3 of the Act. The object essentially was to regulate the export and movement of rice and of rice and paddy products from the Southern States. These Control Orders were laid before both Houses of Parliament as required by sub-s. (6) of section 3 of the Act. ? It has not been shown how this form of legislation would be mere executive instruction and would not constitute law made by Parliament within the meaning of Art. 302. No foundation was laid in the pleadings either before the High Court or in the writ petition before us as to how the restrictions which were imposed by the Control Orders were not in the public interest. It is significant that even on the point of preference to one State over another or discrimination between one State and another State there is complete absence of pleading in the writ petition filed before us. The High Court adverted to the matter but we have not been shown that any proper or firm foundation was laid in the writ petitions before the High Court on the question of preference or discrimination within Art. 303 (1). No argument, therefore, can be entertained on these matters. We are unable to see the necessity of reciting the requisite opinion within S. 3 (1) of the Act in the Control Orders. It is implicit in the recital in the Control Orders that they were being made under S. 3 of the Act that the Central Government had formed the requisite opinion within sub-s. (1) of that section. This disposes of the first four contentions.6. As regards the 5th point it is noteworthy that the permit is to be issued by the State Government concerned or any officer authorised in this behalf by that Government. It is common ground that the officers authorised by the State Government are the District Collector and the Deputy Commissioner of Civil Supplies. These officers cannot but be regarded as fairly high rank who are expected to discharge their duties in a responsible and reasonable manner. In M/s. Dwarka Prasad Laxmi Narain v. State of Uttar Pradesh, 1954 SCR 803 = (AIR 1954 SC224) in which the provisions of cl. (3) of the U. P. Coal Control Order 1953 which gave the licensing authority absolute power to grant or refuse to grant any licence were struck down on the ground that a law which confers arbitrary and uncontrolled power upon the executive in the matter of regulating trade or business in normally available commodities must be held to be unreasonable. There the power could be exercised by any person to whom the State Coal Controller might choose to delegate the same. The matter which has been stressed before us relates generally to the absence of any provision relating to appeal or revision in the Control Orders if the District Collector or the Deputy Commissioner of Civil Supplies refuse to grant a permit under clause 3 of the Order. In Dwarka Prasads case, 1954 SCR 803 = (AIR 1954 SC 224 ) the delegation could be made to any one which was certainly a relevant factor in judging the reasonableness of the impugned provision. But in the case, before us the permit is to be granted either by the State Government or by responsible officers of the rank of the District Collector or the Deputy Commissioner of Civil Supplies. Indeed, Mrs. Pappu quite properly agreed that if the State Government alone had the power to issue the permits the challenge on the ground of unreasonableness of the restrictions would not be available. We consider that there is no bar to any of the aggrieved parties approaching the State Government by means of a representation for a final decision even if the matter has been dealt with by the District Collector or the Deputy Commissioner of Civil Supplies in the first instance and the permit has been refused or wrongly withheld by those officers. In these circumstances the absence of a provision for appeal or revision can be of no consequence. At any rate it has been pointed out in more than one decision of this court that when the power had to be exercised by one of the highest officers the fact that no appeal has been provided for is a matter of no moment, (See K L. Gupta v. Bombay Municipal Corporation, 1968-1 SCR 274 at p. 297 = (AIR 1968 SC 303 at p. 316).It may also be remembered that emphasis was laid in Pannalal Biniraj v. Union of India, 1957 SCR 233 at p. 257 c (AIR 1957 SC 397 at p. 408) on the power being vested not in any minor official but in top-ranking authority. It was said that though the power was discretionary but it was not necessarily discriminatory and abuse of power could not be easily assumed. There was moreover a presumption that public officials would discharge their duties honestly and in accordance with rules of law.7. Lastly an effort was made to agitate the point that S. 3 (2) (d) of the Act suffers from the vice of excessive delegation. This question is no longer at large. In Union of India v. M/s. Bhana Mal Gulzari Mal, 1960-2 SCR 627 = (AIR 1960 SC 475 ) the attack on S. 3 of the Essential Supplies (Temporary Powers) Act 1946 which was similar in terms to S. 3 of the Act on the ground of excessive delegation was repelled. It was held that the Central Government had been given sufficient and proper guidance for exercising its powers in effectuating the policy of the statute. | 0[ds]Now the Control Orders were made under section 3 of the Act. The object essentially was to regulate the export and movement of rice and of rice and paddy products from the Southern States. These Control Orders were laid before both Houses of Parliament as required by sub-s. (6) of section 3 of the Act. ? It has not been shown how this form of legislation would be mere executive instruction and would not constitute law made by Parliament within the meaning of Art. 302. No foundation was laid in the pleadings either before the High Court or in the writ petition before us as to how the restrictions which were imposed by the Control Orders were not in the public interest. It is significant that even on the point of preference to one State over another or discrimination between one State and another State there is complete absence of pleading in the writ petition filed before us. The High Court adverted to the matter but we have not been shown that any proper or firm foundation was laid in the writ petitions before the High Court on the question of preference or discrimination within Art. 303 (1). No argument, therefore, can be entertained on these matters. We are unable to see the necessity of reciting the requisite opinion within S. 3 (1) of the Act in the Control Orders. It is implicit in the recital in the Control Orders that they were being made under S. 3 of the Act that the Central Government had formed the requisite opinion within sub-s. (1) of that section. This disposes of the first four contentions. | 0 | 2,178 | 300 | ### 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:
prevent Parliament from making any law giving, or authorising the giving of, any preference or making or authorising the making of, any discrimination if it is declared by such law that it is necessary to do so for the purpose of dealing with a situation arising from scarcity of goods in any part of the territory of India"Now the Control Orders were made under section 3 of the Act. The object essentially was to regulate the export and movement of rice and of rice and paddy products from the Southern States. These Control Orders were laid before both Houses of Parliament as required by sub-s. (6) of section 3 of the Act. ? It has not been shown how this form of legislation would be mere executive instruction and would not constitute law made by Parliament within the meaning of Art. 302. No foundation was laid in the pleadings either before the High Court or in the writ petition before us as to how the restrictions which were imposed by the Control Orders were not in the public interest. It is significant that even on the point of preference to one State over another or discrimination between one State and another State there is complete absence of pleading in the writ petition filed before us. The High Court adverted to the matter but we have not been shown that any proper or firm foundation was laid in the writ petitions before the High Court on the question of preference or discrimination within Art. 303 (1). No argument, therefore, can be entertained on these matters. We are unable to see the necessity of reciting the requisite opinion within S. 3 (1) of the Act in the Control Orders. It is implicit in the recital in the Control Orders that they were being made under S. 3 of the Act that the Central Government had formed the requisite opinion within sub-s. (1) of that section. This disposes of the first four contentions.6. As regards the 5th point it is noteworthy that the permit is to be issued by the State Government concerned or any officer authorised in this behalf by that Government. It is common ground that the officers authorised by the State Government are the District Collector and the Deputy Commissioner of Civil Supplies. These officers cannot but be regarded as fairly high rank who are expected to discharge their duties in a responsible and reasonable manner. In M/s. Dwarka Prasad Laxmi Narain v. State of Uttar Pradesh, 1954 SCR 803 = (AIR 1954 SC224) in which the provisions of cl. (3) of the U. P. Coal Control Order 1953 which gave the licensing authority absolute power to grant or refuse to grant any licence were struck down on the ground that a law which confers arbitrary and uncontrolled power upon the executive in the matter of regulating trade or business in normally available commodities must be held to be unreasonable. There the power could be exercised by any person to whom the State Coal Controller might choose to delegate the same. The matter which has been stressed before us relates generally to the absence of any provision relating to appeal or revision in the Control Orders if the District Collector or the Deputy Commissioner of Civil Supplies refuse to grant a permit under clause 3 of the Order. In Dwarka Prasads case, 1954 SCR 803 = (AIR 1954 SC 224 ) the delegation could be made to any one which was certainly a relevant factor in judging the reasonableness of the impugned provision. But in the case, before us the permit is to be granted either by the State Government or by responsible officers of the rank of the District Collector or the Deputy Commissioner of Civil Supplies. Indeed, Mrs. Pappu quite properly agreed that if the State Government alone had the power to issue the permits the challenge on the ground of unreasonableness of the restrictions would not be available. We consider that there is no bar to any of the aggrieved parties approaching the State Government by means of a representation for a final decision even if the matter has been dealt with by the District Collector or the Deputy Commissioner of Civil Supplies in the first instance and the permit has been refused or wrongly withheld by those officers. In these circumstances the absence of a provision for appeal or revision can be of no consequence. At any rate it has been pointed out in more than one decision of this court that when the power had to be exercised by one of the highest officers the fact that no appeal has been provided for is a matter of no moment, (See K L. Gupta v. Bombay Municipal Corporation, 1968-1 SCR 274 at p. 297 = (AIR 1968 SC 303 at p. 316).It may also be remembered that emphasis was laid in Pannalal Biniraj v. Union of India, 1957 SCR 233 at p. 257 c (AIR 1957 SC 397 at p. 408) on the power being vested not in any minor official but in top-ranking authority. It was said that though the power was discretionary but it was not necessarily discriminatory and abuse of power could not be easily assumed. There was moreover a presumption that public officials would discharge their duties honestly and in accordance with rules of law.7. Lastly an effort was made to agitate the point that S. 3 (2) (d) of the Act suffers from the vice of excessive delegation. This question is no longer at large. In Union of India v. M/s. Bhana Mal Gulzari Mal, 1960-2 SCR 627 = (AIR 1960 SC 475 ) the attack on S. 3 of the Essential Supplies (Temporary Powers) Act 1946 which was similar in terms to S. 3 of the Act on the ground of excessive delegation was repelled. It was held that the Central Government had been given sufficient and proper guidance for exercising its powers in effectuating the policy of the statute.
### Response:
0
### Explanation:
Now the Control Orders were made under section 3 of the Act. The object essentially was to regulate the export and movement of rice and of rice and paddy products from the Southern States. These Control Orders were laid before both Houses of Parliament as required by sub-s. (6) of section 3 of the Act. ? It has not been shown how this form of legislation would be mere executive instruction and would not constitute law made by Parliament within the meaning of Art. 302. No foundation was laid in the pleadings either before the High Court or in the writ petition before us as to how the restrictions which were imposed by the Control Orders were not in the public interest. It is significant that even on the point of preference to one State over another or discrimination between one State and another State there is complete absence of pleading in the writ petition filed before us. The High Court adverted to the matter but we have not been shown that any proper or firm foundation was laid in the writ petitions before the High Court on the question of preference or discrimination within Art. 303 (1). No argument, therefore, can be entertained on these matters. We are unable to see the necessity of reciting the requisite opinion within S. 3 (1) of the Act in the Control Orders. It is implicit in the recital in the Control Orders that they were being made under S. 3 of the Act that the Central Government had formed the requisite opinion within sub-s. (1) of that section. This disposes of the first four contentions.
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Darshan Hiru Shivdasani Vs. The State of Maharashtra | the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned must or should and not may be established. There is not only a grammatical but a legal distinction between may be proved and must be or should be proved as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra, (1973) 2 SCC 793 ; where the following observations were made:"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between may be and must be is long and divides vague conjectures from sure conclusions."(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,(3) the circumstances should be of a conclusive nature and tendency.(4) they should exclude every possible hypothesis except the one to be proved, and(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.22. The Apex Court in the case of Sharad Birdichand Sarda Vs State of Maharashtra, (1984 4 SCC 116 ) has laid down the five golden principles which the number of cases based on circumstantial evidence. It would be appropriate to enumerate the said principles below. It held that the onus is on the prosecution to prove that the chain is complete and Apex Court laid down the conditions precedent, before conviction based on it to be fully established.1. The circumstances from which the conclusion of guilt is to be drawn should be fully established;2. The facts so established should be consistent with the hypothesis of guilt and the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;3. The circumstances should be of a conclusive nature and tendency;4. They should exclude every possible hypothesis except the one to be proved; and5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.23. Applying the said principle the Apex Court in a recent judgment in the case of Kishor Vs. State of Maharashtra, 2017 (3) SCC p. 716 has observed that last seen together circumstance does not by itself necessarily lead to inference that it was accused who committed crime but there must be something more to connect the accused with the crime and to point out the guilt of the accused and none else. As aforesaid, in the present case there is clinching evidence to point towards the involvement of the appellant in the commission of the crime.24. In the present case, the prosecution has led clinching evidence to point out the involvement of the appellant in the commission of the crime and we see no reason to interfere with the findings recorded by learned Sessions Judge. The prosecution has established the guilt of the appellant by leading cogent and trustworthy evidence. Considering the evidence led by the prosecution in the form of the subsequent conduct of the appellant, where he attempted to evade the arrest, is also a circumstance to complete the chain of events which lead to the guilt of the accused. Though we are aware of the position in law in relation to abscondance of a accused and that it by itself may not be a positive circumstance since an innocent person would also run away from the course of justice fearing the consequences but when such circumstance is coupled with other circumstances it assumes significance. The appellant has not only absconded to evade arrest but also concealed his identity and took shelter in the hotels far away from the place of the incident outside Bombay in fake name to avoid arrest. The appellant was unmistakenly traced as a customer who was admitted to the private hospital Yashwantrao Chavan Hospital, Pimpri. The learned counsel for the appellant has vehemently argued that test identification parade was not carried out to establish the identity of the accused. However, in our view, the court identification itself is good identification in the eyes of law and prosecution witnesses have identified the accused in the dock as the same person who had been to the hotel in Kolhapur and Pimpri and established the circumstance that it was the accused who had stayed in the said hotel by concealing his identity.25. The identity of the appellant is well established and merely because no test identification parade is conducted is no reason to break the chain against the appellant. In case of circumstantial evidence, the motive assumes great significance and importance and in the absence of such motive the Court would be put on guard and caution to scrutinize each piece of evidence very closely in order to ensure that mere suspicion or conjecture did not take place of proof. In the present case, the prosecution has also brought on record the motive of the appellant in causing the death of the deceased as they shared an estranged relationship and the accused/appellant was suspecting that the deceased was carrying illicit relationship after the divorce and this motive according to us was sufficient to commit the crime in the scenario of modern urban life, specifically when the ego of the appellant is hurt in discovering that the deceased who was once upon a time his wife, is leading a happy life and carrying illicit relationship with the PW No.2. Thus, the prosecution has also brought on record the motive in causing the death of the deceased. | 0[ds]20. It is not in dispute that death of Payal is homicidal and the place where her dead body was found in Flat No. 315, Satpuda Building, Oshiwara Park. The prosecution did not have any direct evidence in the form of ocular evidence as to the said act of killing the deceased. However, the prosecution relies on the circumstantial evidence and based its case on the theory of last seen. The deceased was last seen in the company of the accused in the afternoon hours on the date of incident. PW No.18 Omprakash who is the watchman of the Satpuda building has deposed that the appellant had been to the flat at around 1:00 p.m. and had obtained the key of the said flat from the maid servant. The appellant was known to the said witness and he returned to the said flat with his wife, who was identified by the said witness as deceased Payal. The prosecution has proved that deceased accompanied the appellant to the said building after 1:00 p.m. and she was not seen alive thereafter. The prosecution relies upon the said circumstance of the deceased being last seen in the company of the appellant at a point of time which is very proximate to the point when her dead body was found at around 6:00 p.m. by the complainant. The prosecution has also relied upon the circumstance that the body was lying at a place where she had accompanied the appellant and it is only the appellant who had an access to the said flat along with the complainants sister who had come to the said flat but she did not return to the said flat till 6:00 p.m. after her departure from the said flat in the night of the earlier date. Thus, the prosecution has clinchingly established that it was the appellant who had an access to the flat and had an opportunity to cause death of the deceased in the said flat.21. The prosecution has based its case on circumstantial evidence and by cogent evidence brought on record has established the circumstances which are consistent with the hypothesis regarding guilt of the present appellant. The circumstances so established by the prosecution exclude every other hypothesis except the one that the deceased was killed by the appellant. The prosecution has established the chain of circumstance brought on record by the prosecution which do not lead to any other inference than the guilt of the accused. The evidence brought on record by the prosecution in relation to last seen together is completely established to show that the time gap when the deceased was last seen in the company of the accused and when she was found dead was so small but that the only inference that can be drawn is that it was the appellant who was responsible for death of deceased. In the present case, it is to be noted that the circumstances are sufficient to conclusively point out to the commission of murder of the deceased by the appellant and while dealing with the factum of last seen together it is well established by the prosecution that a close proximity exists between the event of the appellant last seen in the company of the deceased. The Honble Apex Court by applying the principles laid down by the Apex Court in the case of Hanumant Vs. State of Madhya Pradesh (AIR 1952 SC 343 ) laid down the principle which should be a guiding one in such case and the said principle is consistently following in the judicial hierarchy and still holds good."It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendencythey should be such as to exclude every hypothesis but the one proposed to be proved. In other words there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.A close analysis of the decius would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned must or should and not may be established. There is not only a grammatical but a legal distinction between may be proved and must be or should be proved as was held by this Court in Shivaji Sahabrao BobadeAnr. v. State of Maharashtra, (1973) 2 SCC 793 ; where the following observations were made:"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between may be and must be is long and divides vague conjectures from sure conclusions."(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,(3) the circumstances should be of a conclusive nature and tendency.(4) they should exclude every possible hypothesis except the one to be proved, and(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.22. The Apex Court in the case of Sharad Birdichand Sarda Vs State of Maharashtra, (1984 4 SCC 116 ) has laid down the five golden principles which the number of cases based on circumstantial evidence. It would be appropriate to enumerate the said principles below. It held that the onus is on the prosecution to prove that the chain is complete and Apex Court laid down the conditions precedent, before conviction based on it to be fully established.1. The circumstances from which the conclusion of guilt is to be drawn should be fully established;2. The facts so established should be consistent with the hypothesis of guilt and the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;3. The circumstances should be of a conclusive nature and tendency;4. They should exclude every possible hypothesis except the one to be proved; and5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.23. Applying the said principle the Apex Court in a recent judgment in the case of Kishor Vs. State of Maharashtra, 2017 (3) SCC p. 716 has observed that last seen together circumstance does not by itself necessarily lead to inference that it was accused who committed crime but there must be something more to connect the accused with the crime and to point out the guilt of the accused and none else. As aforesaid, in the present case there is clinching evidence to point towards the involvement of the appellant in the commission of the crime.24. In the present case, the prosecution has led clinching evidence to point out the involvement of the appellant in the commission of the crime and we see no reason to interfere with the findings recorded by learned Sessions Judge. The prosecution has established the guilt of the appellant by leading cogent and trustworthy evidence. Considering the evidence led by the prosecution in the form of the subsequent conduct of the appellant, where he attempted to evade the arrest, is also a circumstance to complete the chain of events which lead to the guilt of the accused. Though we are aware of the position in law in relation to abscondance of a accused and that it by itself may not be a positive circumstance since an innocent person would also run away from the course of justice fearing the consequences but when such circumstance is coupled with other circumstances it assumes significance. The appellant has not only absconded to evade arrest but also concealed his identity and took shelter in the hotels far away from the place of the incident outside Bombay in fake name to avoid arrest. The appellant was unmistakenly traced as a customer who was admitted to the private hospital Yashwantrao Chavan Hospital, Pimpri. The learned counsel for the appellant has vehemently argued that test identification parade was not carried out to establish the identity of the accused. However, in our view, the court identification itself is good identification in the eyes of law and prosecution witnesses have identified the accused in the dock as the same person who had been to the hotel in Kolhapur and Pimpri and established the circumstance that it was the accused who had stayed in the said hotel by concealing his identity.25. The identity of the appellant is well established and merely because no test identification parade is conducted is no reason to break the chain against the appellant. In case of circumstantial evidence, the motive assumes great significance and importance and in the absence of such motive the Court would be put on guard and caution to scrutinize each piece of evidence very closely in order to ensure that mere suspicion or conjecture did not take place of proof. In the present case, the prosecution has also brought on record the motive of the appellant in causing the death of the deceased as they shared an estranged relationship and the accused/appellant was suspecting that the deceased was carrying illicit relationship after the divorce and this motive according to us was sufficient to commit the crime in the scenario of modern urban life, specifically when the ego of the appellant is hurt in discovering that the deceased who was once upon a time his wife, is leading a happy life and carrying illicit relationship with the PW No.2. Thus, the prosecution has also brought on record the motive in causing the death of the deceased. | 0 | 8,384 | 1,874 | ### Instruction:
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the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned must or should and not may be established. There is not only a grammatical but a legal distinction between may be proved and must be or should be proved as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra, (1973) 2 SCC 793 ; where the following observations were made:"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between may be and must be is long and divides vague conjectures from sure conclusions."(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,(3) the circumstances should be of a conclusive nature and tendency.(4) they should exclude every possible hypothesis except the one to be proved, and(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.22. The Apex Court in the case of Sharad Birdichand Sarda Vs State of Maharashtra, (1984 4 SCC 116 ) has laid down the five golden principles which the number of cases based on circumstantial evidence. It would be appropriate to enumerate the said principles below. It held that the onus is on the prosecution to prove that the chain is complete and Apex Court laid down the conditions precedent, before conviction based on it to be fully established.1. The circumstances from which the conclusion of guilt is to be drawn should be fully established;2. The facts so established should be consistent with the hypothesis of guilt and the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;3. The circumstances should be of a conclusive nature and tendency;4. They should exclude every possible hypothesis except the one to be proved; and5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.23. Applying the said principle the Apex Court in a recent judgment in the case of Kishor Vs. State of Maharashtra, 2017 (3) SCC p. 716 has observed that last seen together circumstance does not by itself necessarily lead to inference that it was accused who committed crime but there must be something more to connect the accused with the crime and to point out the guilt of the accused and none else. As aforesaid, in the present case there is clinching evidence to point towards the involvement of the appellant in the commission of the crime.24. In the present case, the prosecution has led clinching evidence to point out the involvement of the appellant in the commission of the crime and we see no reason to interfere with the findings recorded by learned Sessions Judge. The prosecution has established the guilt of the appellant by leading cogent and trustworthy evidence. Considering the evidence led by the prosecution in the form of the subsequent conduct of the appellant, where he attempted to evade the arrest, is also a circumstance to complete the chain of events which lead to the guilt of the accused. Though we are aware of the position in law in relation to abscondance of a accused and that it by itself may not be a positive circumstance since an innocent person would also run away from the course of justice fearing the consequences but when such circumstance is coupled with other circumstances it assumes significance. The appellant has not only absconded to evade arrest but also concealed his identity and took shelter in the hotels far away from the place of the incident outside Bombay in fake name to avoid arrest. The appellant was unmistakenly traced as a customer who was admitted to the private hospital Yashwantrao Chavan Hospital, Pimpri. The learned counsel for the appellant has vehemently argued that test identification parade was not carried out to establish the identity of the accused. However, in our view, the court identification itself is good identification in the eyes of law and prosecution witnesses have identified the accused in the dock as the same person who had been to the hotel in Kolhapur and Pimpri and established the circumstance that it was the accused who had stayed in the said hotel by concealing his identity.25. The identity of the appellant is well established and merely because no test identification parade is conducted is no reason to break the chain against the appellant. In case of circumstantial evidence, the motive assumes great significance and importance and in the absence of such motive the Court would be put on guard and caution to scrutinize each piece of evidence very closely in order to ensure that mere suspicion or conjecture did not take place of proof. In the present case, the prosecution has also brought on record the motive of the appellant in causing the death of the deceased as they shared an estranged relationship and the accused/appellant was suspecting that the deceased was carrying illicit relationship after the divorce and this motive according to us was sufficient to commit the crime in the scenario of modern urban life, specifically when the ego of the appellant is hurt in discovering that the deceased who was once upon a time his wife, is leading a happy life and carrying illicit relationship with the PW No.2. Thus, the prosecution has also brought on record the motive in causing the death of the deceased.
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the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned must or should and not may be established. There is not only a grammatical but a legal distinction between may be proved and must be or should be proved as was held by this Court in Shivaji Sahabrao BobadeAnr. v. State of Maharashtra, (1973) 2 SCC 793 ; where the following observations were made:"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between may be and must be is long and divides vague conjectures from sure conclusions."(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,(3) the circumstances should be of a conclusive nature and tendency.(4) they should exclude every possible hypothesis except the one to be proved, and(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.22. The Apex Court in the case of Sharad Birdichand Sarda Vs State of Maharashtra, (1984 4 SCC 116 ) has laid down the five golden principles which the number of cases based on circumstantial evidence. It would be appropriate to enumerate the said principles below. It held that the onus is on the prosecution to prove that the chain is complete and Apex Court laid down the conditions precedent, before conviction based on it to be fully established.1. The circumstances from which the conclusion of guilt is to be drawn should be fully established;2. The facts so established should be consistent with the hypothesis of guilt and the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;3. The circumstances should be of a conclusive nature and tendency;4. They should exclude every possible hypothesis except the one to be proved; and5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.23. Applying the said principle the Apex Court in a recent judgment in the case of Kishor Vs. State of Maharashtra, 2017 (3) SCC p. 716 has observed that last seen together circumstance does not by itself necessarily lead to inference that it was accused who committed crime but there must be something more to connect the accused with the crime and to point out the guilt of the accused and none else. As aforesaid, in the present case there is clinching evidence to point towards the involvement of the appellant in the commission of the crime.24. In the present case, the prosecution has led clinching evidence to point out the involvement of the appellant in the commission of the crime and we see no reason to interfere with the findings recorded by learned Sessions Judge. The prosecution has established the guilt of the appellant by leading cogent and trustworthy evidence. Considering the evidence led by the prosecution in the form of the subsequent conduct of the appellant, where he attempted to evade the arrest, is also a circumstance to complete the chain of events which lead to the guilt of the accused. Though we are aware of the position in law in relation to abscondance of a accused and that it by itself may not be a positive circumstance since an innocent person would also run away from the course of justice fearing the consequences but when such circumstance is coupled with other circumstances it assumes significance. The appellant has not only absconded to evade arrest but also concealed his identity and took shelter in the hotels far away from the place of the incident outside Bombay in fake name to avoid arrest. The appellant was unmistakenly traced as a customer who was admitted to the private hospital Yashwantrao Chavan Hospital, Pimpri. The learned counsel for the appellant has vehemently argued that test identification parade was not carried out to establish the identity of the accused. However, in our view, the court identification itself is good identification in the eyes of law and prosecution witnesses have identified the accused in the dock as the same person who had been to the hotel in Kolhapur and Pimpri and established the circumstance that it was the accused who had stayed in the said hotel by concealing his identity.25. The identity of the appellant is well established and merely because no test identification parade is conducted is no reason to break the chain against the appellant. In case of circumstantial evidence, the motive assumes great significance and importance and in the absence of such motive the Court would be put on guard and caution to scrutinize each piece of evidence very closely in order to ensure that mere suspicion or conjecture did not take place of proof. In the present case, the prosecution has also brought on record the motive of the appellant in causing the death of the deceased as they shared an estranged relationship and the accused/appellant was suspecting that the deceased was carrying illicit relationship after the divorce and this motive according to us was sufficient to commit the crime in the scenario of modern urban life, specifically when the ego of the appellant is hurt in discovering that the deceased who was once upon a time his wife, is leading a happy life and carrying illicit relationship with the PW No.2. Thus, the prosecution has also brought on record the motive in causing the death of the deceased.
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District Collector Of Hyderabad & Ors Vs. M/S. Ibrahim & Co. Etc | Government was plainly contrary to the statutory provisions contained in the Andhra Pradesh Sugar Dealers Licensing Order and the Sugar Control Order, it was not protected under Article 358 of the Constitution.11. Nor had it the protection under Article 359. On November 3, 1962 the President issued an order in exercise of the power under Article 359, that "the right of any person to move any Court for the enforcement of the rights conferred by Article 14, Article 21 and Article 22 of the Constitution shall remain suspended for the period during which the Proclamation of Emergency issued under Clause (1) of Article 352 thereof on the 26th October, 1962 is in force, if such person has been deprived of any such rights under the Defence of India Ordinance, 1962 (4 of 1962) or any rule or order made thereunder." Only if the impugned order was shown to be made under the authority reserved by the Defence of India Ordinance or rules made thereunder, the jurisdiction of the Court to entertain a petition for impairment of the guarantee under article 14 may be excluded. But the action was not shown to be taken under the Defence of India Ordinance or under the rule or order made thereunder.12. Again it may be pointed out that under Article 301 the freedom of trade, commerce and intercourse throughout the territory of India is declared free. That freedom is declared in the widest terms and applies to all forms of trade, commerce and intercourse. But it is subject to certain restrictions of which Arts. 304 and 305 are relevant. It is provided by Article 304:"Notwithstanding anything in Art. 301 or Art. 303, the Legislature of a State may by law-(a) x x x x x x x x x xx x x x x x x x x x(b) impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State as may be required in the public interest:Provided that no Bill or amendment for the purposes of Clause (b) shall be introduced or moved in the Legislature of a State without the previous sanction of the President."13. It is also provided by Article 305 that the existing law or laws which may be made by the State providing for State monopolies, i.e.,relating to any matter as is referred to in sub-clause (ii) of Clause (6) of Article 19, are outside the guarantee of Article 301. In the present case the State had not assumed a monopoly to deal in sugar. It had granted monopoly to a Central Consumers Co-operative Stores which was not a corporation owned or controlled by the State within the meaning of Article 19 (6) (ii). The order was challenged on the ground that it trenches upon the freedom of trade and commerce guaranteed by Article 301 of the Constitution.By Article 304 even by legislative restrictions on the freedom of trade, commerce, and intercourse with or within the State may only be imposed, if such restrictions are reasonable and are required in the public interest and the Bill or amendment is introduced or moved in the Legislature of a State with the previous sanction of the President. Obviously the guarantee under Article 301 cannot be taken away by executive action. The guarantee under Article 301 which imposes a restriction upon legislative power of the Parliament or the State Legislature and the declaration of freedom is not merely an abstract declaration. There is no reason to think that while placing a restriction upon legislative power the Constitution guaranteed freedom in the abstract and not of the individuals. Article 301 of the Constitution is borrowed almost verbatim from Section 92 of the Commonwealth of Australian Constitution Act 63 and 64 Vict. c. 12 of 1900. In dealing with the contention that no individual right was guaranteed by Section 92 of the Commonwealth of Australian Constitution Act the Judicial Committee in Commonwealth of Australia v. Bank of New South Wales, (1950) AC 235 observed at p. 305:"The necessary implications of these decisions (Kames v. Cowan-(1932) AC 542 and James v. The Commonwealth of Australia-(1936) AC 578) are important. First may be mentioned an argument strenuously maintained on this appeal that Section 92 of the Constitution does not guarantee the freedom of individuals. Yet James was an individual and James vindicated his freedom in hard-won fights. Clearly there is here a misconception. It is true as has been said more than once in the High Court, that Section 92 does not create any new juristic rights but it does give the citizen of State or Commonwealth, as the case may be, the right to ignore, and , if necessary, to call on the judicial power to help him to resist, legislative or executive action which offends against the section. And this is just what James successfully did."14. Our Constituent Assembly borrowed the concept of freedom of trade, commerce and intercourse from the Australian Constitution. It is true that the limitations upon the amplitude of the guarantee are not expressed in Section 92 of the Australian Constitution, as are to be found in our Constitution. Again, there is no guarantee in the Australian Constitution of a fundamental right to carry on trade. But this departure from the scheme of the Australian Constitution does not alter the true character of the guarantee and it cannot be inferred that the Constitution imposed restrictions upon Legislative power, but denied to the individuals affected by unauthorised assumption of executive power the right to challenge the exercise of that power. A vital constitutional provision cannot be so construed as to make a mockery of the declared guarantee and the constitutional restrictions on the power of the Legislature. If the power of the State Legislature is restricted in the manner provided by Article 301, but within limits provided by Articles 303 to 305, it would be impossible to hold that the State by executive order can do something which it is incompetent to do by legislation.15. | 0[ds]8. It is true that under article 352 of the Constitution, the President declared a state of emergency on October 26, 1962. By Article 358 while a proclamation of emergency is in operation, nothing in Article 19 shall restrict the power of the State (as defined in Part III) to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take. By Article 359 the President is authorised, where a proclamation of emergency was in operation, to declare that the right to move any Court for the enforcement of such of the rights conferred by Part III as may be mentioned shall remain suspended for the period during which the proclamation was in force or for such shorter period as may be specified in the order.9. On the issue of the proclamation of emergency the State is, for the duration of the emergency, competent to enact legislation, notwithstanding that it impairs the freedoms guaranteed by Article 19 of the Constitution. The State is also competent to take executive action, which the State would, but for the provisions contained in Article, 19 of the Constitution, be competent to take. The impugned order in this case was issued while the proclamation of emergency was in operation. The respondents could not challenge the validity of any law enacted by the State Legislature so long as the proclamation of emergency was in operation on the ground that it impaired the freedoms guaranteed by Article 19. They could not also challenge any executive action which, but for the provisions contained in Article 19, the State was competent to take.10. In the present case, the State did not enact any legislation impairing the fundamental right of the respondents to carry on business which is guaranteed by Article 19 (1) (g), they proceeded to make an executive order.But the executive order immune from attack is only that order which the State was competent, but for the provisions contained in Article 19, to make. Executive action of the State Government which is otherwise invalid is not immune from attack, merely because a proclamation of emergency is in operation when it is taken. Since the order of the State Government was plainly contrary to the statutory provisions contained in the Andhra Pradesh Sugar Dealers Licensing Order and the Sugar Control Order, it was not protected under Article 358 of the Constitution.11. Nor had it the protection under Article 359. On November 3, 1962 the President issued an order in exercise of the power under Article 359, that "the right of any person to move any Court for the enforcement of the rights conferred by Article 14, Article 21 and Article 22 of the Constitution shall remain suspended for the period during which the Proclamation of Emergency issued under Clause (1) of Article 352 thereof on the 26th October, 1962 is in force, if such person has been deprived of any such rights under the Defence of India Ordinance, 1962 (4 of 1962) or any rule or order made thereunder." Only if the impugned order was shown to be made under the authority reserved by the Defence of India Ordinance or rules made thereunder, the jurisdiction of the Court to entertain a petition for impairment of the guarantee under article 14 may be excluded. But the action was not shown to be taken under the Defence of India Ordinance or under the rule or order madeConstituent Assembly borrowed the concept of freedom of trade, commerce and intercourse from the Australian Constitution. It is true that the limitations upon the amplitude of the guarantee are not expressed in Section 92 of the Australian Constitution, as are to be found in our Constitution. Again, there is no guarantee in the Australian Constitution of a fundamental right to carry on trade. But this departure from the scheme of the Australian Constitution does not alter the true character of the guarantee and it cannot be inferred that the Constitution imposed restrictions upon Legislative power, but denied to the individuals affected by unauthorised assumption of executive power the right to challenge the exercise of that power. A vital constitutional provision cannot be so construed as to make a mockery of the declared guarantee and the constitutional restrictions on the power of the Legislature. If the power of the State Legislature is restricted in the manner provided by Article 301, but within limits provided by Articles 303 to 305, it would be impossible to hold that the State by executive order can do something which it is incompetent to do by legislation. | 0 | 2,562 | 845 | ### Instruction:
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Government was plainly contrary to the statutory provisions contained in the Andhra Pradesh Sugar Dealers Licensing Order and the Sugar Control Order, it was not protected under Article 358 of the Constitution.11. Nor had it the protection under Article 359. On November 3, 1962 the President issued an order in exercise of the power under Article 359, that "the right of any person to move any Court for the enforcement of the rights conferred by Article 14, Article 21 and Article 22 of the Constitution shall remain suspended for the period during which the Proclamation of Emergency issued under Clause (1) of Article 352 thereof on the 26th October, 1962 is in force, if such person has been deprived of any such rights under the Defence of India Ordinance, 1962 (4 of 1962) or any rule or order made thereunder." Only if the impugned order was shown to be made under the authority reserved by the Defence of India Ordinance or rules made thereunder, the jurisdiction of the Court to entertain a petition for impairment of the guarantee under article 14 may be excluded. But the action was not shown to be taken under the Defence of India Ordinance or under the rule or order made thereunder.12. Again it may be pointed out that under Article 301 the freedom of trade, commerce and intercourse throughout the territory of India is declared free. That freedom is declared in the widest terms and applies to all forms of trade, commerce and intercourse. But it is subject to certain restrictions of which Arts. 304 and 305 are relevant. It is provided by Article 304:"Notwithstanding anything in Art. 301 or Art. 303, the Legislature of a State may by law-(a) x x x x x x x x x xx x x x x x x x x x(b) impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State as may be required in the public interest:Provided that no Bill or amendment for the purposes of Clause (b) shall be introduced or moved in the Legislature of a State without the previous sanction of the President."13. It is also provided by Article 305 that the existing law or laws which may be made by the State providing for State monopolies, i.e.,relating to any matter as is referred to in sub-clause (ii) of Clause (6) of Article 19, are outside the guarantee of Article 301. In the present case the State had not assumed a monopoly to deal in sugar. It had granted monopoly to a Central Consumers Co-operative Stores which was not a corporation owned or controlled by the State within the meaning of Article 19 (6) (ii). The order was challenged on the ground that it trenches upon the freedom of trade and commerce guaranteed by Article 301 of the Constitution.By Article 304 even by legislative restrictions on the freedom of trade, commerce, and intercourse with or within the State may only be imposed, if such restrictions are reasonable and are required in the public interest and the Bill or amendment is introduced or moved in the Legislature of a State with the previous sanction of the President. Obviously the guarantee under Article 301 cannot be taken away by executive action. The guarantee under Article 301 which imposes a restriction upon legislative power of the Parliament or the State Legislature and the declaration of freedom is not merely an abstract declaration. There is no reason to think that while placing a restriction upon legislative power the Constitution guaranteed freedom in the abstract and not of the individuals. Article 301 of the Constitution is borrowed almost verbatim from Section 92 of the Commonwealth of Australian Constitution Act 63 and 64 Vict. c. 12 of 1900. In dealing with the contention that no individual right was guaranteed by Section 92 of the Commonwealth of Australian Constitution Act the Judicial Committee in Commonwealth of Australia v. Bank of New South Wales, (1950) AC 235 observed at p. 305:"The necessary implications of these decisions (Kames v. Cowan-(1932) AC 542 and James v. The Commonwealth of Australia-(1936) AC 578) are important. First may be mentioned an argument strenuously maintained on this appeal that Section 92 of the Constitution does not guarantee the freedom of individuals. Yet James was an individual and James vindicated his freedom in hard-won fights. Clearly there is here a misconception. It is true as has been said more than once in the High Court, that Section 92 does not create any new juristic rights but it does give the citizen of State or Commonwealth, as the case may be, the right to ignore, and , if necessary, to call on the judicial power to help him to resist, legislative or executive action which offends against the section. And this is just what James successfully did."14. Our Constituent Assembly borrowed the concept of freedom of trade, commerce and intercourse from the Australian Constitution. It is true that the limitations upon the amplitude of the guarantee are not expressed in Section 92 of the Australian Constitution, as are to be found in our Constitution. Again, there is no guarantee in the Australian Constitution of a fundamental right to carry on trade. But this departure from the scheme of the Australian Constitution does not alter the true character of the guarantee and it cannot be inferred that the Constitution imposed restrictions upon Legislative power, but denied to the individuals affected by unauthorised assumption of executive power the right to challenge the exercise of that power. A vital constitutional provision cannot be so construed as to make a mockery of the declared guarantee and the constitutional restrictions on the power of the Legislature. If the power of the State Legislature is restricted in the manner provided by Article 301, but within limits provided by Articles 303 to 305, it would be impossible to hold that the State by executive order can do something which it is incompetent to do by legislation.15.
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8. It is true that under article 352 of the Constitution, the President declared a state of emergency on October 26, 1962. By Article 358 while a proclamation of emergency is in operation, nothing in Article 19 shall restrict the power of the State (as defined in Part III) to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take. By Article 359 the President is authorised, where a proclamation of emergency was in operation, to declare that the right to move any Court for the enforcement of such of the rights conferred by Part III as may be mentioned shall remain suspended for the period during which the proclamation was in force or for such shorter period as may be specified in the order.9. On the issue of the proclamation of emergency the State is, for the duration of the emergency, competent to enact legislation, notwithstanding that it impairs the freedoms guaranteed by Article 19 of the Constitution. The State is also competent to take executive action, which the State would, but for the provisions contained in Article, 19 of the Constitution, be competent to take. The impugned order in this case was issued while the proclamation of emergency was in operation. The respondents could not challenge the validity of any law enacted by the State Legislature so long as the proclamation of emergency was in operation on the ground that it impaired the freedoms guaranteed by Article 19. They could not also challenge any executive action which, but for the provisions contained in Article 19, the State was competent to take.10. In the present case, the State did not enact any legislation impairing the fundamental right of the respondents to carry on business which is guaranteed by Article 19 (1) (g), they proceeded to make an executive order.But the executive order immune from attack is only that order which the State was competent, but for the provisions contained in Article 19, to make. Executive action of the State Government which is otherwise invalid is not immune from attack, merely because a proclamation of emergency is in operation when it is taken. Since the order of the State Government was plainly contrary to the statutory provisions contained in the Andhra Pradesh Sugar Dealers Licensing Order and the Sugar Control Order, it was not protected under Article 358 of the Constitution.11. Nor had it the protection under Article 359. On November 3, 1962 the President issued an order in exercise of the power under Article 359, that "the right of any person to move any Court for the enforcement of the rights conferred by Article 14, Article 21 and Article 22 of the Constitution shall remain suspended for the period during which the Proclamation of Emergency issued under Clause (1) of Article 352 thereof on the 26th October, 1962 is in force, if such person has been deprived of any such rights under the Defence of India Ordinance, 1962 (4 of 1962) or any rule or order made thereunder." Only if the impugned order was shown to be made under the authority reserved by the Defence of India Ordinance or rules made thereunder, the jurisdiction of the Court to entertain a petition for impairment of the guarantee under article 14 may be excluded. But the action was not shown to be taken under the Defence of India Ordinance or under the rule or order madeConstituent Assembly borrowed the concept of freedom of trade, commerce and intercourse from the Australian Constitution. It is true that the limitations upon the amplitude of the guarantee are not expressed in Section 92 of the Australian Constitution, as are to be found in our Constitution. Again, there is no guarantee in the Australian Constitution of a fundamental right to carry on trade. But this departure from the scheme of the Australian Constitution does not alter the true character of the guarantee and it cannot be inferred that the Constitution imposed restrictions upon Legislative power, but denied to the individuals affected by unauthorised assumption of executive power the right to challenge the exercise of that power. A vital constitutional provision cannot be so construed as to make a mockery of the declared guarantee and the constitutional restrictions on the power of the Legislature. If the power of the State Legislature is restricted in the manner provided by Article 301, but within limits provided by Articles 303 to 305, it would be impossible to hold that the State by executive order can do something which it is incompetent to do by legislation.
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JAWAHARLAL NEHRU TECHNOLOGICAL UNIVERSITY REGISTRAR Vs. SANGAM LAXMI BAI VIDYAPEET AND ORS | any of the provisions in the AICTE Act and rules for adjudging requirement of the locality have been framed by the Council. In the absence of guidelines or norms framed to check the mushroom growth of the institutions, the university cannot be deprived of considering the said aspect. The State Government had also sent a communication to AICTE regarding the alarming increase in the number of technical educational institutions in the area in question and imbalanced growth. The decision of State has been taken in an objective manner and the same is based on the consideration of data and could not be said to be irrational or arbitrary in any manner whatsoever. The policy decision of the State Government cannot be said to be illegal and on that basis, the University has taken the decision in terms of Section 20 of the Act of 1982. 28. In State of Maharashtra v. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya, (2006) 9 SCC 1 , question arose for consideration as to the power of the Government of Maharashtra as it refused to issue no objection certificate for starting new BEd college for the academic year 200506 in view of the provisions of National Council for Teacher Education Act (NCTE Act). Though the permission was granted by the Council under Section 14 of the NCTE Act to start the college. This Court held that university was bound to implement a decision of the NCTE Act and grant affiliation in accordance therewith irrespective of the bar under Section 83 of the Maharashtra Universities Act, 1994. This Court also observed that it does not imply that under Sections 82 and 83 of the Maharashtra Universities Act, 1994 were null and void. They would not apply to the case but in other appropriate courses. This Court observed that: 61. Interpreting the statutory provisions, this Court held that by enacting Section 10A, Parliament had made a complete and exhaustive provision covering the entire field for the establishment of a new medical college in the country. No further scope is left for the operation of the State Legislation in the said field which was fully covered by the law made by Parliament. The Court, therefore, held that the proviso to Subsection (5) of Section 5 of the State Act which required prior permission of the State Government for establishing a medical college was repugnant to Section 10A of the Central Act and to the extent of repugnancy, the State Act would not operate. The Court noted that in the scheme that had been prepared under the Regulations for the establishment of new medical colleges, one of the conditions for the qualifying criteria laid down was essentiality certificate regarding the desirability and of having the proposed college at the proposed location which should be obtained from the State Government. The proviso to Subsection (5) of Section 5 of the Act, therefore, must be construed only as regards proposed location. The essentiality certificate, however, could not be withheld by the State Government on any policy consideration inasmuch as the policy and the matter of establishment of new medical college rested with the Central Government alone. 62. From the above decisions, in our judgment, the law appears to be very well settled. So far as coordination and determination of standards in institutions for higher education or research, scientific and technical institutions are concerned, the subject is exclusively covered by Entry 66 of List I of Schedule VII to the Constitution and State has no power to encroach upon the legislative power of Parliament. It is only when the subject is covered by Entry 25 of List III of Schedule VII to the Constitution that there is a concurrent power of Parliament as well as State Legislatures and appropriate Act can be by the State Legislature subject to limitations and restrictions under the Constitution. 29. In Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya (supra) Court further observed that proviso to subsection 5 of Section 5 must be construed with respect to proposed location. The essentiality certificate could not be dealt with by the State Government on any policy consideration inasmuch as the policy and the matter of establishment of new medical college rested with the Central Government alone. In the instant case, it is mainly with respect to local area i.e., the city of Hyderabad which power has been saved by this Court even in the aforesaid dictum. 30. In Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Education & Charitable Trust v. State of Tamil Nadu, (1996) 3 SCC 15 , the provisions of Tamil Nadu Medical University Act, 1987 came up for consideration. The provisions of the Act are different. For the establishment of a Medical College, State Essentiality Certificate and affiliation from University is required. In the instant case, the matter is about the proposed location and affiliation out of 36 Pharmacy colleges in the State of Telangana and 30 are located in Hyderabad city alone which are more than adequate in number. Thus, rightly decision has been taken not to start another new course at the proposed location at Hyderabad city. Thus, the said decision is no avail to espouse the cause of the respondents. 31. The respondents have also referred to the decision in Rungta Engineering College, Bhilai v. Chhattisgarh Swami Vivekananda Technical University, (2015) 11 SCC 291 , wherein question came up for consideration with respect to the power of examining authority i.e., University and State Government, to withdraw provisional affiliation or to decline grant of affiliation. The decision was taken to disapprove provisional affiliation granted to the college. This Court observed that the objections on the basis of which action was taken squarely fall within the sweep of one or the other areas which only AICTE has exclusive jurisdiction to deal with. These shortcomings ought to have been brought to the notice of AICTE to take appropriate action against the college. On facts of the instant case, the decision cannot be applied as it is not the case of shortcomings. | 1[ds]A bare reading of the aforesaid provisions of section 20(1) makes it clear that the survey is conducted so as to identify the educational needs of the locality would definitely include within its ken how many institutions are operating in the area and whether there is any further requirement of opening educational institutions/new courses in existing colleges, and it is also imperative under section 20(3)(a)(i) that educational agency has to satisfy the authority that there is a need for providing educational facilities to the people in the locality. In case there are already a large number of institutions imparting education in the area the competent authority may be justified not to grant the NOC, for permitting an institution to come up in the area.13. The provisions contained in section 20 are wholesome and intend not only to cater to the educational needs of the area but also prevent the mushroom growth of the institutions/courses. In case institutions are permitted to run each and every course that may affect the very standard of education and may ultimately result in substandard education. There is already a paucity of wellqualified teachers in a large number of institutions and the available seats in Pharmacy course in the Hyderabad city are remaining vacant every year in spite of the reduction in a number of seats. It had not been possible to fill up the available vacancies due to nonavailability of students. Thus, it is apparent that when 30 institutions in Hyderabad city are already running Pharmacy course, the refusal to grant NOC by the University was wholly justified.14. Apart from the provisions contained in section 20, when we consider Regulations 5.2 and 5.3 which clearly provide that a new college proposing to offer technical education with the University affiliation shall first seek a NOC from the University before applying to AICTE/PCI/any other statutory body. Regulation 5.3 provides that the permission for starting of new programmes in the existing colleges shall be considered by the University as per the priority/policy of the State Government if any.15. In Government of A.P. & Anr. v. J.B. Educational Society & Anr. (supra), the Court considered the validity of section 20 of the Act of 1982 visvis section 10 of AICTE Act of 1987 and observed that the two provisions are not repugnant to each other and they operate in different fields. The object and purpose of two enactments had been considered by this Court and it observed that if there are more colleges in a particular area, the State would be justified in not granting permission to one more college in that area. Entry 25 of the Concurrent List gives power to the State Legislature to make laws regarding education, including technical education. The AICTE Act deals with the general power of Parliament for coordination, determination of standards in institutions for higher education or research and scientific and technical educational institutions and Entry 65 of List I deals with the union agencies and institutions. The State has the competence to pass such legislation and Section 20 of the Act of 1982 is for the welfare of the State. The Court observed:13. It is in this background that the provisions contained in the two legislative enactments have to be scrutinized. The provisions of the AICTE Act are intended to improve the technical education and the various authorities under the Act have been given exclusive responsibility to coordinate and determine the standards of higher education. It is a general power given to evaluate, harmonize and secure proper relationship to any project of national importance.Such a coordinate action in higher education with a proper standard is of paramount importance to national progress. Section 20 of the AP Act does not in any way encroach upon the powers of the authorities under the Central Act. Section 20 says that the competent authority shall, from time to time, conduct a survey to identify the educational needs of the locality under its jurisdiction notified through the local newspapers calling for applications from the educational agencies. Section 20(3)(a)(i) says that before permission is granted, the authority concerned must be satisfied that there is a need for providing educational facilities to the people in the locality. The State authorities alone can decide about the educational facilities and needs of the locality. If there are more colleges in a particular area, the State would not be justified in granting permission to one more college in that locality. Entry 25 of the Concurrent List gives power to the State Legislature to make laws regarding education, including technical education. Of course, this is subject to the provisions of Entry 63, 64, 65 and 66 of List I. Entry 66 of List I to which the legislative source is traced for the AICTE Act deals with the general power of the Parliament for coordination, determination of standards in institutions for higher education or research and scientific and technical educational institutions and Entry 65 deals with the union agencies and institutions for professional, vocational and technical training, including the training of police officers, etc. The State has certainly the legislative competence to pass the legislation in respect of education including technical education and Section 20 of the Act is intended for the general welfare of the citizens of the State and also in discharge of the constitutional duty enumerated under Article 41 of the Constitution.14. The general survey in various fields of technical education contemplated under Section 10(1)(a) of the AICTE Act is not pertaining to the educational needs of any particular area in a State.It is a general supervisory survey to be conducted by the AICTE Council, for example, if any IIT is to be established in a particular region, a general survey could be conducted and the Council can very much conduct a survey regarding the location of that institution and collect data of all related matters. But as regards whether a particular educational institution is to be established in a particular area in a State, the State alone would be competent to say as to where that institution should be established. Section 20 of the AP Act and Section 10 of the Central Act operate in different fields and we do not see any repugnancy between the two provisions.21. The educational needs of the locality are to be ascertained and determined by the State. Having regard to the regulations framed under the AICTE Act, the representatives of the State have to be included in the ultimate decisionmaking process and having regard to the provisions of the Act, the Writ Petitioners would not in any way be prejudiced by such provisions in the A.P. Act. Moreover, the decision, if any, taken by the State authorities under Section 20(3)(a) (i) would be subject to judicial review and we do not think that the State could make any irrational decision about granting permission.Hence, we hold that Section 20(3)(a)(i) is not in any way repugnant to Section 10 of the AICTE Act and it is constitutionally valid.16. In view of the aforesaid decision, the High Court has erred in law in holding that it was not permissible for the State Government to frame such a policy and the University was bound to issue NOC. The decision of the High Court runs to the contrary, ignores and overlooks the law laid down in the said decision.17. The Government of Telangana vide its communication dated 29.11.2016 to the AICTE had communicated the views of the State Government regarding AICTE approval for the establishment of educational institutions for the session 2017-18. After discussing the matter by the Director of Technical Education, ViceChancellor of the University and State Council of Higher Education the State Government had expressed serious concern at the proliferation and establishment of technical institutions and the unprecedented expansion in the intake in all the courses offered by all the technical institutions coming within the purview of AICTE. Data was given in the tabular form including that of the Pharmacy. It was pointed out that in the year 201516 sanctioned intake in Pharmacy was 11490, seats remained vacant were 4035, in academic session 2016-17 sanctioned intake was 9226, seats vacant were 1892.19. Regulation 4.18 cannot be said to be repugnant to Regulations 5.2 and 5.3 of the University, and there is no repugnancy in AICTE Act and section 20 of the Act of 1982 as observed by this Court in Government of A.P. & Anr. v. J.B. Educational Society & Anr. (supra).The perspective plan had been prepared by the State of Telangana for 2018-19. In the perspective plan the State Government has pointed out the abstract of courses and seats in the existing engineering colleges for the academic year 2017-18 and it was mentioned that there was an imbalance of seats. Following is the extract relied upon by the respondents:A perusal of the above Table reveals the fact that the four programmes viz. Information Technology, Computer Science and Engineering, Electronics and Communication Engineering and Electrical and Electronics Engineering together account for 83,290 seats of the total Intake of 1,26,855 seats. This accounts for nearly 66% of the seats and rests account for about 43,565 seats, which is 34% of the total intake. This lopsided priority will, in the long run, have an adverse effect on the growth of infrastructure in the country with its attendant consequences.This imbalance needs to be corrected on a priority basis so that the manufacturing and other sectors do not suffer. The courses on demand related to latest Technologies and needs of the Industry such as Mining, Textile, Pharmacy, Automobile, Aviation Civil Engineering, and Construction Technology and hence their enhancement in Intake may be considered in the State, while keeping in view of the 14 Thrust Areas as mentioned in Para 5, Page 14 of this Plan. This is also keeping in view that the Pharma city, Textile hub, Fabcity, ITIR, IT Hubs, etc. are emerging in Telangana State.At the same time in the conclusions and recommendations made by the Government in perspective plan, it has been pointed out that AICTE may declare a holiday on the establishment of new technical institutions for the academic year 2018-19. This holiday applies not only to the establishment of new engineering colleges but may also be extended inter alia to BPharmacy institutions. It was also pointed out that in case the Pharmacy Council of India has not accorded the approval, AICTE should not grant approval to the Pharmacy colleges. It was inter alia mentioned in the recommendations that new programmes may be sanctioned in Mining, Granite, Textile, Pharmacy, Automobile etc. based on new technologies. However, it was not the case, that course would be based on new technology. Following is the relevant extract of the conclusions and recommendations made by the State:6. CONCLUSIONS & RECOMMENDATIONSThus, the various concerns that arise from all the above data are summarized below for the consideration of the All India Council of Technical Education:The AICTE has been sanctioning the Colleges routinely every year without actually assessing the Need of the State. With a massive number of such Colleges established in the State, there is a severe shortage of qualified Teaching faculty, which is seriously affecting the Quality of Education offered by many of these institutions. Moreover, it is observed that a large number of seats are falling vacant every year as the total number of seats available is far more than the takers. During the year 2016-17 for instance, there are about 32784 seats and during 2017-18, there are 29367 seats that remained vacant in theThe AICTE may thus declare a holiday on the establishment of New Technical Institutions from the Academic Year 2018-19. The holiday applies not only with regard to the establishment of New Engineering Colleges in the State but may also be extended to B.Pharmacy, MBA/MCA Institutions.Engineering course (based on the affiliations). With poor admissions, the financial viability in running several colleges is becoming a problem and thus making Colleges to offer poor Quality of Education, which is totally undesirable. In fact, in several Colleges, the admissions during last year and this year in Engineering and MCA programmes are just single digits. This situation has led to an unhealthy competition among the Colleges for admissions by wooing the students with all sorts of false promises. This is highly harmful to the Professional Educational System in the State.In view of all the above and to improve the Quality of Education in Private, Unaided Colleges in the State of Telangana, it is recommended that:New Programmes may be sanctioned such as Mining, Granite, Textile, Pharmacy, Automobile, Civil Eng. Construction Technology based on New Technologies and the needs of the Industry keeping in view the 14 Thrust Areas mentioned in Para 5 of Page 14 of this Plan.20. Admittedly it is not a case of new technology to be adopted for the proposed course of DPharma by the college in question. Thus, the State had put up a moratorium for Pharmacy courses also. It is significant to note that in the conclusions and recommendations, it was observed that AICTE had permitted imbalanced growth of the institutions in the area which could be avoided. In fact, we see that such an expert body often ignores such relevant factors which makes action arbitrary.21. The decision taken by the State Government to impose a moratorium as apparent from facts reflected in perspective plan is based on a survey and supported by the data. Considering the fact that seats are going abegging. Even in 2017-18 in the Pharmacy course, data has been given in the SLP that among 56 colleges affiliated to the University, 30 were in the city of Hyderabad and out of total 1630 seats, 173 had remained vacant. Thus, it is apparent that a large number of seats remained vacant. Not more than 30 seats can be allotted to one institution. In the circumstances, the observation of the High Court that it was for the institution to worry and consider the viability and it was not for the University or State Government to take same into consideration, is completely a flimsy and impermissible reason employed. The mushroom growth of educational institutions cannot be permitted. The observation made by the High Court that unfit institution will automatically shut down the courses is not the judicious approach warranted in such matters. It is not only that the requirement of the locality should exist but it has to be ensured that only the standard educational institutions should come up and once they come up, they should be able to survive. A large number of Institutions are not to be opened up to die an unnatural death on the principle of survival of the fittest and due to nonavailability of teachers/students. Standard of education cannot be compromised and sacrificed by permitting institutions to come up in a reckless manner without there being any requirement for them at a particular place. There is a need to strengthen the existing system of education not to make it weak by further complicating the issues by wholly unwarranted approach as the one adopted by the High Court. It cannot be left at the choice of the institution to open the course whenever or wherever they desire. The High Court has also erred in observing that the seats remaining vacant could not be the relevant criteria for refusal of NOC.23. In Adhiyaman Educational & Research Institute case (supra), the power of the State Government to grant permission to start a technical institute that is an Engineering College in the State of Tamil Nadu came up for consideration. College was functioning and a report was received from the Director of Technical Education after inspection regarding lack of infrastructural facilities. The High Power Committee in its report stated that conditions imposed by the Government were not fulfilled. The Director, Technical Education issued a show cause notice asking the College to explain why the permission granted by the Government to start the college should not be withdrawn. The High Power Committee also resolved to reject the request of the Trust regarding provisional affiliation for 198990. Questioning the same a writ petition was filed. It was held that the State Government had no power to cancel the permission granted to the Trust to start the College. It was required to be canceled under the AICTE Act. It was observed that duty was imposed on the Council for recognizing or derecognizing any technical institution in the country.As the provisions of Clause 9(7) of the Statute merely required the University to obtain the views of the State Government, that could not be characterized as requiring the approval of the State Government. This Court also opined that the question of affiliation was a different matter and was not covered by the Central Act. On considering the provisions under Clause 9(7) of Kerala University First Statute, this Court held that there was no statutory requirement for obtaining the approval of the State Government even if there was one, it would be repugnant to the AICTE Act. The decision is based on the provisions of Clause 9(7).26. The provisions contained in Section 20 of the Act of 1982 involved in the instant case are different and its validity visvis to AICTE Act has already been upheld by this Court. Apart from that, it has not been pointed out that in the exercise of powers under Section 10 of Central Act, norms have been fixed by the AICTE as to how many colleges should function at a particular city/place. Definitely the State Government and the University, in the absence of any such norms/rules having been framed by the AICTE can always have their say as per applicable statutory provisions or policy. In the instant case, Section 20 of Act of 1982, enables Universities to grant no objection certificate after considering the local requirement and as no guidelines in this regard have been framed by the AICTE, it cannot be said to be an exercise of power against the norms fixed by AICTE.Consequently, no repugnancy arises. The mushroom growth of the institutions cannot be permitted, was rightly pointed out in the perspective plan. A large number of institutions have already been permitted to function in the State by the Central Bodies. It is painful to note that at several places mushroom growth of the institutions had been permitted by such bodies in an illegal manner. In case there is no check or balance and the power is exercised in an unbridled reckless manner, the sufferer is going to be the standard of education.At the same time, there is a necessity of good institutions with new technology, but at the same time mushroom growth of the substandard institutions cannot be permitted. There has to be a requirement of educational institutions in the locality and that is one of the main considerations.27. The counsel appearing for the respondents were not able to point out any of the provisions in the AICTE Act and rules for adjudging requirement of the locality have been framed by the Council. In the absence of guidelines or norms framed to check the mushroom growth of the institutions, the university cannot be deprived of considering the said aspect. The State Government had also sent a communication to AICTE regarding the alarming increase in the number of technical educational institutions in the area in question and imbalanced growth. The decision of State has been taken in an objective manner and the same is based on the consideration of data and could not be said to be irrational or arbitrary in any manner whatsoever. The policy decision of the State Government cannot be said to be illegal and on that basis, the University has taken the decision in terms of Section 20 of the Act of 1982.29. In Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya (supra) Court further observed that proviso to subsection 5 of Section 5 must be construed with respect to proposed location. The essentiality certificate could not be dealt with by the State Government on any policy consideration inasmuch as the policy and the matter of establishment of new medical college rested with the Central Government alone. In the instant case, it is mainly with respect to local area i.e., the city of Hyderabad which power has been saved by this Court even in the aforesaid dictum.30. In Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Education & Charitable Trust v. State of Tamil Nadu, (1996) 3 SCC 15 , the provisions of Tamil Nadu Medical University Act, 1987 came up for consideration. The provisions of the Act are different. For the establishment of a Medical College, State Essentiality Certificate and affiliation from University is required. In the instant case, the matter is about the proposed location and affiliation out of 36 Pharmacy colleges in the State of Telangana and 30 are located in Hyderabad city alone which are more than adequate in number. Thus, rightly decision has been taken not to start another new course at the proposed location at Hyderabad city. Thus, the said decision is no avail to espouse the cause of the respondents.31. The respondents have also referred to the decision in Rungta Engineering College, Bhilai v. Chhattisgarh Swami Vivekananda Technical University, (2015) 11 SCC 291 , wherein question came up for consideration with respect to the power of examining authority i.e., University and State Government, to withdraw provisional affiliation or to decline grant of affiliation. The decision was taken to disapprove provisional affiliation granted to the college. This Court observed that the objections on the basis of which action was taken squarely fall within the sweep of one or the other areas which only AICTE has exclusive jurisdiction to deal with. These shortcomings ought to have been brought to the notice of AICTE to take appropriate action against the college. On facts of the instant case, the decision cannot be applied as it is not the case of shortcomings. | 1 | 8,687 | 3,986 | ### Instruction:
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any of the provisions in the AICTE Act and rules for adjudging requirement of the locality have been framed by the Council. In the absence of guidelines or norms framed to check the mushroom growth of the institutions, the university cannot be deprived of considering the said aspect. The State Government had also sent a communication to AICTE regarding the alarming increase in the number of technical educational institutions in the area in question and imbalanced growth. The decision of State has been taken in an objective manner and the same is based on the consideration of data and could not be said to be irrational or arbitrary in any manner whatsoever. The policy decision of the State Government cannot be said to be illegal and on that basis, the University has taken the decision in terms of Section 20 of the Act of 1982. 28. In State of Maharashtra v. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya, (2006) 9 SCC 1 , question arose for consideration as to the power of the Government of Maharashtra as it refused to issue no objection certificate for starting new BEd college for the academic year 200506 in view of the provisions of National Council for Teacher Education Act (NCTE Act). Though the permission was granted by the Council under Section 14 of the NCTE Act to start the college. This Court held that university was bound to implement a decision of the NCTE Act and grant affiliation in accordance therewith irrespective of the bar under Section 83 of the Maharashtra Universities Act, 1994. This Court also observed that it does not imply that under Sections 82 and 83 of the Maharashtra Universities Act, 1994 were null and void. They would not apply to the case but in other appropriate courses. This Court observed that: 61. Interpreting the statutory provisions, this Court held that by enacting Section 10A, Parliament had made a complete and exhaustive provision covering the entire field for the establishment of a new medical college in the country. No further scope is left for the operation of the State Legislation in the said field which was fully covered by the law made by Parliament. The Court, therefore, held that the proviso to Subsection (5) of Section 5 of the State Act which required prior permission of the State Government for establishing a medical college was repugnant to Section 10A of the Central Act and to the extent of repugnancy, the State Act would not operate. The Court noted that in the scheme that had been prepared under the Regulations for the establishment of new medical colleges, one of the conditions for the qualifying criteria laid down was essentiality certificate regarding the desirability and of having the proposed college at the proposed location which should be obtained from the State Government. The proviso to Subsection (5) of Section 5 of the Act, therefore, must be construed only as regards proposed location. The essentiality certificate, however, could not be withheld by the State Government on any policy consideration inasmuch as the policy and the matter of establishment of new medical college rested with the Central Government alone. 62. From the above decisions, in our judgment, the law appears to be very well settled. So far as coordination and determination of standards in institutions for higher education or research, scientific and technical institutions are concerned, the subject is exclusively covered by Entry 66 of List I of Schedule VII to the Constitution and State has no power to encroach upon the legislative power of Parliament. It is only when the subject is covered by Entry 25 of List III of Schedule VII to the Constitution that there is a concurrent power of Parliament as well as State Legislatures and appropriate Act can be by the State Legislature subject to limitations and restrictions under the Constitution. 29. In Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya (supra) Court further observed that proviso to subsection 5 of Section 5 must be construed with respect to proposed location. The essentiality certificate could not be dealt with by the State Government on any policy consideration inasmuch as the policy and the matter of establishment of new medical college rested with the Central Government alone. In the instant case, it is mainly with respect to local area i.e., the city of Hyderabad which power has been saved by this Court even in the aforesaid dictum. 30. In Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Education & Charitable Trust v. State of Tamil Nadu, (1996) 3 SCC 15 , the provisions of Tamil Nadu Medical University Act, 1987 came up for consideration. The provisions of the Act are different. For the establishment of a Medical College, State Essentiality Certificate and affiliation from University is required. In the instant case, the matter is about the proposed location and affiliation out of 36 Pharmacy colleges in the State of Telangana and 30 are located in Hyderabad city alone which are more than adequate in number. Thus, rightly decision has been taken not to start another new course at the proposed location at Hyderabad city. Thus, the said decision is no avail to espouse the cause of the respondents. 31. The respondents have also referred to the decision in Rungta Engineering College, Bhilai v. Chhattisgarh Swami Vivekananda Technical University, (2015) 11 SCC 291 , wherein question came up for consideration with respect to the power of examining authority i.e., University and State Government, to withdraw provisional affiliation or to decline grant of affiliation. The decision was taken to disapprove provisional affiliation granted to the college. This Court observed that the objections on the basis of which action was taken squarely fall within the sweep of one or the other areas which only AICTE has exclusive jurisdiction to deal with. These shortcomings ought to have been brought to the notice of AICTE to take appropriate action against the college. On facts of the instant case, the decision cannot be applied as it is not the case of shortcomings.
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by the Government to start the college should not be withdrawn. The High Power Committee also resolved to reject the request of the Trust regarding provisional affiliation for 198990. Questioning the same a writ petition was filed. It was held that the State Government had no power to cancel the permission granted to the Trust to start the College. It was required to be canceled under the AICTE Act. It was observed that duty was imposed on the Council for recognizing or derecognizing any technical institution in the country.As the provisions of Clause 9(7) of the Statute merely required the University to obtain the views of the State Government, that could not be characterized as requiring the approval of the State Government. This Court also opined that the question of affiliation was a different matter and was not covered by the Central Act. On considering the provisions under Clause 9(7) of Kerala University First Statute, this Court held that there was no statutory requirement for obtaining the approval of the State Government even if there was one, it would be repugnant to the AICTE Act. The decision is based on the provisions of Clause 9(7).26. The provisions contained in Section 20 of the Act of 1982 involved in the instant case are different and its validity visvis to AICTE Act has already been upheld by this Court. Apart from that, it has not been pointed out that in the exercise of powers under Section 10 of Central Act, norms have been fixed by the AICTE as to how many colleges should function at a particular city/place. Definitely the State Government and the University, in the absence of any such norms/rules having been framed by the AICTE can always have their say as per applicable statutory provisions or policy. In the instant case, Section 20 of Act of 1982, enables Universities to grant no objection certificate after considering the local requirement and as no guidelines in this regard have been framed by the AICTE, it cannot be said to be an exercise of power against the norms fixed by AICTE.Consequently, no repugnancy arises. The mushroom growth of the institutions cannot be permitted, was rightly pointed out in the perspective plan. A large number of institutions have already been permitted to function in the State by the Central Bodies. It is painful to note that at several places mushroom growth of the institutions had been permitted by such bodies in an illegal manner. In case there is no check or balance and the power is exercised in an unbridled reckless manner, the sufferer is going to be the standard of education.At the same time, there is a necessity of good institutions with new technology, but at the same time mushroom growth of the substandard institutions cannot be permitted. There has to be a requirement of educational institutions in the locality and that is one of the main considerations.27. The counsel appearing for the respondents were not able to point out any of the provisions in the AICTE Act and rules for adjudging requirement of the locality have been framed by the Council. In the absence of guidelines or norms framed to check the mushroom growth of the institutions, the university cannot be deprived of considering the said aspect. The State Government had also sent a communication to AICTE regarding the alarming increase in the number of technical educational institutions in the area in question and imbalanced growth. The decision of State has been taken in an objective manner and the same is based on the consideration of data and could not be said to be irrational or arbitrary in any manner whatsoever. The policy decision of the State Government cannot be said to be illegal and on that basis, the University has taken the decision in terms of Section 20 of the Act of 1982.29. In Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya (supra) Court further observed that proviso to subsection 5 of Section 5 must be construed with respect to proposed location. The essentiality certificate could not be dealt with by the State Government on any policy consideration inasmuch as the policy and the matter of establishment of new medical college rested with the Central Government alone. In the instant case, it is mainly with respect to local area i.e., the city of Hyderabad which power has been saved by this Court even in the aforesaid dictum.30. In Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Education & Charitable Trust v. State of Tamil Nadu, (1996) 3 SCC 15 , the provisions of Tamil Nadu Medical University Act, 1987 came up for consideration. The provisions of the Act are different. For the establishment of a Medical College, State Essentiality Certificate and affiliation from University is required. In the instant case, the matter is about the proposed location and affiliation out of 36 Pharmacy colleges in the State of Telangana and 30 are located in Hyderabad city alone which are more than adequate in number. Thus, rightly decision has been taken not to start another new course at the proposed location at Hyderabad city. Thus, the said decision is no avail to espouse the cause of the respondents.31. The respondents have also referred to the decision in Rungta Engineering College, Bhilai v. Chhattisgarh Swami Vivekananda Technical University, (2015) 11 SCC 291 , wherein question came up for consideration with respect to the power of examining authority i.e., University and State Government, to withdraw provisional affiliation or to decline grant of affiliation. The decision was taken to disapprove provisional affiliation granted to the college. This Court observed that the objections on the basis of which action was taken squarely fall within the sweep of one or the other areas which only AICTE has exclusive jurisdiction to deal with. These shortcomings ought to have been brought to the notice of AICTE to take appropriate action against the college. On facts of the instant case, the decision cannot be applied as it is not the case of shortcomings.
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STATE OF WEST BENGAL Vs. CALCUTTA CLUB LIMITED | takes place in hotels and restaurants, there is really one indivisible contract of service coupled incidentally with sale of food and drinks. Since it is not possible to divide the service element, which is the dominant element, from the sale element, it is clear that such composite contracts cannot be the subject-matter of sales tax legislation, as was held in those judgments. 12. Bearing these judgments in mind, Parliament amended the Constitution and introduced the Constitution (Forty-sixth Amendment) Act, by which it introduced Article 366(29-A). Sub-clause (f), with which we are directly concerned, reads as follows: 366. (29-A)(f) a tax on the supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink (whether or not intoxicating), where such supply or service, is for cash, deferred payment or other valuable consideration, and such transfer, delivery or supply of any goods shall be deemed to be a sale of those goods by the person making the transfer, delivery or supply and a purchase of those goods by the person to whom such transfer, delivery or supply is made.A reading of the constitutional amendment would show that supply by way of or as part of any service of food or other article for human consumption is now deemed to be a sale of goods by the person making the transfer, delivery or supply. 45. That the doctrine of mutuality has not been done away with by sub-clause (e) is also clear when sub-clause (e) is contrasted with certain provisions of the Income Tax Act, 1961. Section 2(24) (vii) of the Income Tax Act, 1961, reads as under: 2. Definitions.- xxx xxx xxx (24) income includes- xxx xxx xxx (vii) the profits and gains of any business of insurance carried on by a mutual insurance company or by a co-operative society, computed in accordance with section 44 or any surplus taken to be such profits and gains by virtue of the provisions contained in the First Schedule This has to be read with Section 44 of the Income Tax Act, 1961 which reads as under: 44. Insurance business.-Notwithstanding anything to the contrary contained in the provisions of this Act relating to the computation of income chargeable under the head Interest on securities, Income from house property, Capital gains or Income from other sources, or in section 199 or in sections 28 to 43B, the profits and gains of any business of insurance, including any such business carried on by a mutual insurance company or by a co-operative society, shall be computed in accordance with the rules contained in the First Schedule. 46. A reading of the aforesaid provisions makes it clear that when profits and gains of a mutual insurance company are sought to be brought to tax, they are so done by express reference to the fact that the business of insurance is carried on by a mutual insurance company. The absence of any such language in sub- clause (e) of Article 366(29-A) is also an important pointer to the fact that the doctrine of mutuality cannot be said to have been done away with by the said 46 th Amendment. 47. In fact, Section 2(24)(vii) has been expressly noticed in Venkatesh Premises Cooperative Society Limited (supra) as follows: 14. The doctrine of mutuality, based on common law principles, is premised on the theory that a person cannot make a profit from himself. An amount received from oneself, therefore, cannot be regarded as income and taxable. Section 2(24) of the Income Tax Act defines taxable income. The income of a cooperative society from business is taxable under Section 2(24)(vii) and will stand excluded from the principle of mutuality. 48. Also, Section 45(2) of the Income Tax Act, 1961 is an example of a provision by which a deemed transfer by a person to himself gets taxed. Section 45(2) reads as follows: 45. Capital gains.- xxx xxx xxx (2) Notwithstanding anything contained in sub-section (1), the profits and gains arising from the transfer by way of conversion by the owner of a capital asset into, or its treatment by him as, stock-in-trade of a business carried on by him shall be chargeable to income-tax as his income of the previous year in which such stock-in-trade is sold or otherwise transferred by him and, for the purposes of Section 48, the fair market value of the asset on the date of such conversion or treatment shall be deemed to be the full value of the consideration received or accruing as a result of the transfer of the capital asset. It can be seen from this provision that profits or gains arising from a transfer by way of conversion by the owner of a capital asset into, or its treatment by him as stock-in-trade of a business, is by a deeming fiction brought to tax, despite the fact that there is no transfer in law by the owner of a capital asset to another person. Modalities such as these to bring to tax amounts that would do away with any doctrine of mutuality are conspicuous by their absence in the language of Article 366(29-A)(e). 49. In light of the view that we have taken, it is unnecessary to advert to Shri Dwivedis arguments that the explanation (1) to Section 2(10) of the West Bengal Sales Tax Act is a stand-alone provision and not an explanation in the classical sense. We, therefore, answer the three questions posed by the Division Bench in State of West Bengal v. Calcutta Club Limited (supra) as follows: (1) The doctrine of mutuality continues to be applicable to incorporated and unincorporated members clubs after the 46 th Amendment adding Article 366(29-A) to the Constitution of India. (2) Young Mens Indian Association (supra) and other judgments which applied this doctrine continue to hold the field even after the 46 th Amendment. (3) Sub-clause (f) of Article 366(29-A) has no application to members clubs. | 0[ds]24. It can be seen that Young Mens Indian Association (supra) expressly distinguished Enfield India Ltd. (supra), in paragraph 9 therein. The judgment in Enfield India Ltd. (supra), held on the facts of that case that there was nothing to show that the society in that case was acting as an agent of its members in providing facilities for making food available to them. A distinction was then made between a society which is a body corporate and its members, stating that the body corporate is a separate person in law. It then referred to various English judgments including Trebanog (supra), and refused to apply them on the ground that they were cases which dealt with criminal proceedings. The judgment then ended by stating that the Court was not called upon to decide whether an unincorporated club, supplying goods for a price to its members, may be regarded as selling goods to its members25. It can be seen from the above, that the ratio of the Three Judge Bench in Enfield India Ltd. (supra) does not square with the ratio of the Six Judge Bench in Young Mens Indian Association (supra). Young Mens Indian Association (supra) is expressly based upon the English judgments which disregarded the corporate form and stated that there could not be a sale, on the facts of those cases, between two persons because Foster, i.e. a member of the club, could be regarded as vendor as well as purchaser in Graff (supra). Likewise, in Trebanog (supra), the form in which the club was clothed was of no moment, it being stated that there is no magic in the expressions trustee or agent. What is essential is that the holding of the property by the trustee or agent must be a holding for and on behalf of, and not a holding antagonistic to, the members of the club26. It is thus clear that Enfield India Ltd. (supra) does not take the matter any further. Young Mens Indian Association (supra) made no distinction between a club in the corporate form and a club by way of a registered society or incorporated by a deed of trust. What is the essence of the judgment is that the holding of property must be a holding for and on behalf of the members of the club, there being no transfer of property from one person to another. Proprietary clubs were distinguished, as there the owner of the club would not be the members themselves, but somebody else. The present appeal deals with a company that is registered under Section 25 of the Companies Act28. It will thus be seen that in these companies, payment of dividend to shareholders is prohibited, and the profits, if any, have to be applied to promote the objects of the company. Bacha F. Guzdar (supra) did not deal with a Section 25 company - it dealt with two tea companies which were Public Limited Companies, registered under the Companies Act. It is in this context that this Court held:That a shareholder acquires a right to participate in the profits of the company may be readily conceded but it is not possible to accept the contention that the shareholder acquires any interest in the assets of the company. The use of the word assets in the passage quoted above cannot be exploited to warrant the inference that a shareholder, on investing money in the purchase of shares, becomes entitled to the assets of the company and has any share in the property of the company. A shareholder has got no interest in the property of the company though he has undoubtedly a right to participate in the profits if and when the company decides to divide them…The company is a juristic person and is distinct from the shareholders. It is the company which owns the property and not the shareholders. The dividend is a share of the profits declared by the company as liable to be distributed among the shareholders. Reliance is placed on behalf of the appellant on a passage in Buckleys Companies Act (12th Edn.), p. 894 where the etymological meaning of dividend is given as dividendum, the total divisible sum but in its ordinary sense it means the sum paid and received as the quotient forming the share of the divisible sum payable to the recipient. This statement does not justify the contention that shareholders are owners of a divisible sum or that they are owners of the property of the company. The proper approach to the solution of the Question 1s to concentrate on the plain words of the definition of agricultural income which connects in no uncertain language revenue with the land from which it directly springs and a stray observation in a case which has no bearing upon the present question does not advance the solution of the question. There is nothing in the Indian law to warrant the assumption that a shareholder who buys shares buys any interest in the property of the company which is a juristic person entirely distinct from the shareholders. The true position of a shareholder is that on buying shares an investor becomes entitled to participate in the profits of the company in which he holds the shares if and when the company declares, subject to the Articles of Association, that the profits or any portion thereof should be distributed by way of dividends among the shareholders. He has undoubtedly a further right to participate in the assets of the company which would be left over after winding up but not in the assets as a whole as Lord Anderson puts it29. Given the differences pointed out in Cricket Club of India (supra) between clubs registered as Companies under Section 25 of the Companies Act and other companies, it is clear that the ratio decidendi in the judgment in Bacha F. Guzdar (supra) would not apply to such clubs - there being no shareholders, no dividends declared, and no distribution of profits taking place. Such clubs, therefore, cannot be treated as separate in law from their membersGiven these observations, it is clear that if persons carry on a certain activity in such a way that there is a commonality between contributors of funds and participators in the activity, a complete identity between the two is then established. This identity is not snapped because the surplus that arises from the common fund is not distributed among the members – it is enough that there is a right of disposal over the surplus, and in exercise of that right they may agree that on winding up, the surplus will be transferred to a club or association with similar activities. Most importantly, the surplus that is made does not come back to the members of the club as shareholders of a company in the form of dividends upon their shares. Since the members perform the activities of the club for themselves, the fact that they incorporate a legal entity to do it for them makes no difference. This judgment was also followed by this Court in Income Tax Officer, Mumbai v. Venkatesh Premises Cooperative Society Limited (2018) 15 SCC 37. What is of essence, therefore, in applying this doctrine is that there is no sale transaction between two persons, as one person cannot sell goods to itself32. It can be seen that the 61 st Law Commission Report had observed that there cannot be said to be any evasion of tax as a member of members clubs really takes his own goods and, therefore, did not seek to tax such goods. The framers of the 46 th Amendment thought otherwise, and made it plain that they sought to bring to tax sales made by unincorporated clubs or an association of persons to their members, as it was thought that such transactions were not taxable, as such club or associations in law has no separate existence from that of the members33. Quite obviously, the Statement of Objects and Reasons has not read the case of Young Mens Indian Association (supra) in its correct perspective. As has been noticed hereinabove, Young Mens Indian Association (supra) had three separate appeals before it, in one of which a company was involved. To state, therefore, that under the law as it stood on the date of the 46 th Amendment, a sale of goods by a club having a corporate status to members is taxable, is wholly incorrect. Proceeding on this incorrect basis, what the 46 th Amendment sought to do was to then bring to tax sales by clubs which have no separate existence from that of their members. In so doing, the 46 th Amendment used the expression any unincorporated association or body of persons. This expression, when read with the Statement of Objects and Reasons, makes it clear that it was only clubs which are not in corporate form that were sought to be brought within the tax net, as it was wrongly assumed that sale of goods by members clubs in the corporate form were taxable. Any is the equivalent of all. This word, therefore, also lends itself to the aforesaid interpretation, as the emphasis of the legislature is on all unincorporated associations or bodies being brought within sub- clause (e)34. Thus, it is clear that even going by Shri Dwivedis eloquent argument as to the intention of the legislature, as seen through the object that the legislature sought to achieve, would lead to the aforesaid expression applying only to clubs which were not in the corporate formAs has been correctly argued by Shri Jaideep Gupta, the definition of consideration in Section 2(d) of the Indian Contract Act, 1872 necessarily posits consideration passing from one person to anotherThe expression valuable consideration has, as has been pointed out in Pollock and Mulla, The Indian Contract & Specific Relief Acts (16 th ed.), been taken from an old English case Currie v. Misa (1875) LR 10 EX 153, and explained as follows:A valuable consideration in the sense of the law, may consist either in some right, interest, profit, or benefit accruing to one party, or some forbearance, detriment, loss or responsibility given, suffered, or undertaken by the otherThe above definition brings out the idea of reciprocity as the distinguishing mark; it is the gratuitous promise that is unenforceable in English law38. This is further reinforced by the last part of Article 366(29-A), as under this part, the supply of such goods shall be deemed to be sale of those goods by the person making the supply, and the purchase of those goods by the person to whom such supply is made. As the Young Mens Indian Association (supra) case and the doctrine of mutuality state, there is no sale transaction between a club and its members. As has been pointed out above, there cannot be a sale of goods to oneself. Here again, it is clear that the ratio of Young Mens Indian Association (supra) has not been done away with by the limited fiction introduced by Article 366(29-A)(e)39. But, says Shri Dwivedi, even if sub-clause (e) does not apply, sub-clause (f) would apply, given the width of its language. Here again, it is clear that the reason for sub-clause (f), as has been stated in the Statement of Objects and Reasons, is the doing away with of two judgments of this Court, namely, State of Punjab v. Associated Hotels of India Limited AIR 1972 SC 1131 and Northern India Caterers (India) Ltd. (supra)40. This is clear not only from the Statement of Objects and Reasons, but from the subject matter of sub-clause (f) (which does not include goods in their entirety, but only food or any other article for human consumption, or any drink), which is the serving of such food or drink in hotels or restaurants. This is further made clear by Section 6 of the 46 th Amendment Act, which is a validation and exemption provision. Section 6(1)(a) specifically refers to transactions referable to the aforesaid two Supreme Court judgments. The exemption provision puts the matter beyond doubt41. Sub-clause (a) refers to 7 th September, 1978, which is the date on which Northern India Caterers (supra) was pronounced and sub-clause (b) refers to 4 th January, 1972, which is the date on which Associated Hotels of India Ltd. (supra) was pronounced. The 46 th Amendment Act, therefore, when read as a whole, would make it clear that Article 366(29-A)(f) refers only to an undoing of the aforesaid two judgments, the subject matter being the taxability of food or drink served in hotels and restaurants. This being the case, it is obvious that the taxability of food or drink served in members clubs is not the subject matter of sub-clause (f)42. Looked at from another point of view, a members club may supply goods which are not food or drink – for example, soap, cosmetics and other household items. These items would be goods, but would not be within sub-clause (f) - not being food or drink, and cannot, therefore, be taxed under sub-clause (f), leading to the absurd situation of the supply of food and drink being taxable in members clubs, and the supply of other goods in such clubs being outside the tax net. For this reason also, it is clear that the subject matter of sub-clause (f) is entirely different and distinct from that of sub-clause (e), and cannot possibly apply to members clubs. In this view of the matter, the expression in any manner whatsoever, being part and parcel of sub-clause (f) cannot be held to extend to a supply of all goods so as to bring such goods to tax when applied to members clubs43. Judgments of this Court have also held that the subject matter of sub-clause (f) related to food and drink supplied in hotels and restaurants, the deeming fiction of sub-clause (f) being introduced only to get over certain judgments of this Court46. A reading of the aforesaid provisions makes it clear that when profits and gains of a mutual insurance company are sought to be brought to tax, they are so done by express reference to the fact that the business of insurance is carried on by a mutual insurance company. The absence of any such language in sub- clause (e) of Article 366(29-A) is also an important pointer to the fact that the doctrine of mutuality cannot be said to have been done away with by the said 46 th AmendmentIt can be seen from this provision that profits or gains arising from a transfer by way of conversion by the owner of a capital asset into, or its treatment by him as stock-in-trade of a business, is by a deeming fiction brought to tax, despite the fact that there is no transfer in law by the owner of a capital asset to another person. Modalities such as these to bring to tax amounts that would do away with any doctrine of mutuality are conspicuous by their absence in the language of Article 366(29-A)(e)49. In light of the view that we have taken, it is unnecessary to advert to Shri Dwivedis arguments that the explanation (1) to Section 2(10) of the West Bengal Sales Tax Act is a stand-alone provision and not an explanation in the classical sense. We, therefore, answer the three questions posed by the Division Bench in State of West Bengal v. Calcutta Club Limited (supra) as(1) The doctrine of mutuality continues to be applicable to incorporated and unincorporated members clubs after the 46 th Amendment adding Article 366(29-A) to the Constitution of India(2) Young Mens Indian Association (supra) and other judgments which applied this doctrine continue to hold the field even after the 46 th Amendment(3) Sub-clause (f) of Article 366(29-A) has no application to members clubs72. The definition of club or association contained in Section 65(25a) makes it plain that any person or body of persons providing services for a subscription or any other amount to its members would be within the tax net. However, what is of importance is that anybody established or constituted by or under any law for the time being in force, is not included. Shri Dhruv Agarwal laid great emphasis on the judgments in DALCO Engineering Private Limited v. Satish Prabhakar Padhye and Ors. Etc. (2010) 4 SCC 378 ( in particular paragraphs 10, 14 and 32 thereof) and CIT, Kanpur and Anr. v. Canara Bank (2018) 9 SCC 322 ( in particular paragraphs 12 and 17 therein), to the effect that a company incorporated under the Companies Act cannot be said to be established by that Act. What is missed, however, is the fact that a Company incorporated under the Companies Act or a cooperative society registered as a cooperative society under a State Act can certainly be said to be constituted under any law for the time being in force. In R.C. Mitter & Sons, Calcutta v. CIT, West Bengal, Calcutta (1959) Supp. 2 SCR 641, this Court had occasion to construe what is meant by constituted under an instrument of partnership, which words occurred in Section 26A of the Income Tax Act, 1922. The Court held:The word constituted does not necessarily mean created or set up, though it may mean that also. It also includes the idea of clothing the agreement in a legal form. In the Oxford English Dictionary, Vol. II, at pp. 875 & 876, the word constitute is said to mean, inter alia, to set up, establish, found (an institution, etc.) and also to give legal or official form or shape to (an assembly, etc.). Thus the word in its wider significance, would include both, the idea of creating or establishing, and the idea of giving a legal form to, a partnership. The Bench of the Calcutta High Court in the case of R.C. Mitter and Sons v. CIT [(1955) 28 ITR 698, 704, 705] under examination now, was not, therefore, right in restricting the word constitute to mean only to create, when clearly it could also mean putting a thing in a legal shape. The Bombay High Court, therefore, in the case of Dwarkadas Khetan and Co. v. CIT [(1956) 29 ITR 903, 907] , was right in holding that the section could not be restricted in its application only to a firm which had been created by an instrument of partnership, and that it could reasonably and in conformity with commercial practice, be held to apply to a firm which may have come into existence earlier by an oral agreement, but the terms and conditions of the partnership have subsequently been reduced to the form of a document. If we construe the word constitute in the larger sense, as indicated above, the difficulty in which the learned Chief Justice of the Calcutta High Court found himself, would be obviated inasmuch as the section would take in cases both of firms coming into existence by virtue of written documents as also those which may have initially come into existence by oral agreements, but which had subsequently been constituted under written deeds73. It is, thus, clear that companies and cooperative societies which are registered under the respective Acts, can certainly be said to be constituted under those Acts. This being the case, we accept the argument on behalf of the Respondents that incorporated clubs or associations or prior to 1 st July, 2012 were not included in the service tax net76. What has been stated in the present judgment so far as sales tax is concerned applies on all fours to service tax; as, if the doctrine of agency, trust and mutuality is to be applied qua members clubs, there has to be an activity carried out by one person for another for consideration. We have seen how in the judgment relating to sales tax, the fact is that in members clubs there is no sale by one person to another for consideration, as one cannot sell something to oneself. This would apply on all fours when we are to construe the definition of service under Section 65B(44) as well77. However, Explanation 3 has now been incorporated, under sub-clause (a) of which unincorporated associations or body of persons and their members are statutorily to be treated as distinct persons79. It will be noticed that the aforesaid explanation is in substantially the same terms as Article 366(29-A)(e) of the Constitution of India. Earlier in this judgment qua sales tax, we have already held that the expression body of persons will not include an incorporated company, nor will it include any other form of incorporation including an incorporated co-operative society80. It will be noticed that club or association was earlier defined under Section 65(25a) and 65(25aa) to mean any person or body of persons providing service. In these definitions, the expression body of persons cannot possibly include persons who are incorporated entities, as such entities have been expressly excluded under Section 65(25a)(i) and 65(25aa)(i) as anybody established or constituted by or under any law for the time being in force . Body of persons, therefore, would not, within these definitions, include a body constituted under any law for the time being in force81. When the scheme of service tax changed so as to introduce a negative list for the first-time post 2012, services were now taxable if they were carried out by one person for another person for consideration. Person is very widely defined by Section 65B(37) as including individuals as well as all associations of persons or bodies of individuals, whether incorporated or not. Explanation 3 to Section 65B(44), instead of using the expression person or the expression an association of persons or bodies of individuals, whether incorporated or not , uses the expression a body of persons when juxtaposed with an unincorporated association82. We have already seen how the expression body of persons occurring in the explanation to Section 65 and occurring in Section 65(25a) and (25aa) does not refer to an incorporated company or an incorporated cooperative society. As the same expression has been used in Explanation 3 post-2012 (as opposed to the wide definition of person contained in Section 65B(37)), it may be assumed that the legislature has continued with the pre-2012 scheme of not taxing members clubs when they are in the incorporated form. The expression body of persons may subsume within it persons who come together for a common purpose, but cannot possibly include a company or a registered cooperative society. Thus, Explanation 3(a) to Section 65B(44) does not apply to members clubs which are incorporated83. The expression unincorporated associations would include persons who join together in some common purpose or common action – see ICT, Bombay North, Kutch and Saurashtra, Ahmedabad v. Indira Balkrishna (1960) 3 SCR 513 at page 519-520. The expression as the case may be would refer to different groups of individuals either bunched together in the form of an association also, or otherwise as a group of persons who come together with some common object in mind. Whichever way it is looked at, what is important is that the expression body of persons cannot possibly include within it bodies corporate84. We are therefore of the view that the Jharkhand High Court and the Gujarat High Court are correct in their view of the law in following Young Mens Indian Association (supra). We are also of the view that from 2005 onwards, the Finance Act of 1994 does not purport to levy service tax on members clubs in the incorporated form. | 0 | 18,236 | 4,494 | ### 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:
takes place in hotels and restaurants, there is really one indivisible contract of service coupled incidentally with sale of food and drinks. Since it is not possible to divide the service element, which is the dominant element, from the sale element, it is clear that such composite contracts cannot be the subject-matter of sales tax legislation, as was held in those judgments. 12. Bearing these judgments in mind, Parliament amended the Constitution and introduced the Constitution (Forty-sixth Amendment) Act, by which it introduced Article 366(29-A). Sub-clause (f), with which we are directly concerned, reads as follows: 366. (29-A)(f) a tax on the supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink (whether or not intoxicating), where such supply or service, is for cash, deferred payment or other valuable consideration, and such transfer, delivery or supply of any goods shall be deemed to be a sale of those goods by the person making the transfer, delivery or supply and a purchase of those goods by the person to whom such transfer, delivery or supply is made.A reading of the constitutional amendment would show that supply by way of or as part of any service of food or other article for human consumption is now deemed to be a sale of goods by the person making the transfer, delivery or supply. 45. That the doctrine of mutuality has not been done away with by sub-clause (e) is also clear when sub-clause (e) is contrasted with certain provisions of the Income Tax Act, 1961. Section 2(24) (vii) of the Income Tax Act, 1961, reads as under: 2. Definitions.- xxx xxx xxx (24) income includes- xxx xxx xxx (vii) the profits and gains of any business of insurance carried on by a mutual insurance company or by a co-operative society, computed in accordance with section 44 or any surplus taken to be such profits and gains by virtue of the provisions contained in the First Schedule This has to be read with Section 44 of the Income Tax Act, 1961 which reads as under: 44. Insurance business.-Notwithstanding anything to the contrary contained in the provisions of this Act relating to the computation of income chargeable under the head Interest on securities, Income from house property, Capital gains or Income from other sources, or in section 199 or in sections 28 to 43B, the profits and gains of any business of insurance, including any such business carried on by a mutual insurance company or by a co-operative society, shall be computed in accordance with the rules contained in the First Schedule. 46. A reading of the aforesaid provisions makes it clear that when profits and gains of a mutual insurance company are sought to be brought to tax, they are so done by express reference to the fact that the business of insurance is carried on by a mutual insurance company. The absence of any such language in sub- clause (e) of Article 366(29-A) is also an important pointer to the fact that the doctrine of mutuality cannot be said to have been done away with by the said 46 th Amendment. 47. In fact, Section 2(24)(vii) has been expressly noticed in Venkatesh Premises Cooperative Society Limited (supra) as follows: 14. The doctrine of mutuality, based on common law principles, is premised on the theory that a person cannot make a profit from himself. An amount received from oneself, therefore, cannot be regarded as income and taxable. Section 2(24) of the Income Tax Act defines taxable income. The income of a cooperative society from business is taxable under Section 2(24)(vii) and will stand excluded from the principle of mutuality. 48. Also, Section 45(2) of the Income Tax Act, 1961 is an example of a provision by which a deemed transfer by a person to himself gets taxed. Section 45(2) reads as follows: 45. Capital gains.- xxx xxx xxx (2) Notwithstanding anything contained in sub-section (1), the profits and gains arising from the transfer by way of conversion by the owner of a capital asset into, or its treatment by him as, stock-in-trade of a business carried on by him shall be chargeable to income-tax as his income of the previous year in which such stock-in-trade is sold or otherwise transferred by him and, for the purposes of Section 48, the fair market value of the asset on the date of such conversion or treatment shall be deemed to be the full value of the consideration received or accruing as a result of the transfer of the capital asset. It can be seen from this provision that profits or gains arising from a transfer by way of conversion by the owner of a capital asset into, or its treatment by him as stock-in-trade of a business, is by a deeming fiction brought to tax, despite the fact that there is no transfer in law by the owner of a capital asset to another person. Modalities such as these to bring to tax amounts that would do away with any doctrine of mutuality are conspicuous by their absence in the language of Article 366(29-A)(e). 49. In light of the view that we have taken, it is unnecessary to advert to Shri Dwivedis arguments that the explanation (1) to Section 2(10) of the West Bengal Sales Tax Act is a stand-alone provision and not an explanation in the classical sense. We, therefore, answer the three questions posed by the Division Bench in State of West Bengal v. Calcutta Club Limited (supra) as follows: (1) The doctrine of mutuality continues to be applicable to incorporated and unincorporated members clubs after the 46 th Amendment adding Article 366(29-A) to the Constitution of India. (2) Young Mens Indian Association (supra) and other judgments which applied this doctrine continue to hold the field even after the 46 th Amendment. (3) Sub-clause (f) of Article 366(29-A) has no application to members clubs.
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0
### Explanation:
etc.) and also to give legal or official form or shape to (an assembly, etc.). Thus the word in its wider significance, would include both, the idea of creating or establishing, and the idea of giving a legal form to, a partnership. The Bench of the Calcutta High Court in the case of R.C. Mitter and Sons v. CIT [(1955) 28 ITR 698, 704, 705] under examination now, was not, therefore, right in restricting the word constitute to mean only to create, when clearly it could also mean putting a thing in a legal shape. The Bombay High Court, therefore, in the case of Dwarkadas Khetan and Co. v. CIT [(1956) 29 ITR 903, 907] , was right in holding that the section could not be restricted in its application only to a firm which had been created by an instrument of partnership, and that it could reasonably and in conformity with commercial practice, be held to apply to a firm which may have come into existence earlier by an oral agreement, but the terms and conditions of the partnership have subsequently been reduced to the form of a document. If we construe the word constitute in the larger sense, as indicated above, the difficulty in which the learned Chief Justice of the Calcutta High Court found himself, would be obviated inasmuch as the section would take in cases both of firms coming into existence by virtue of written documents as also those which may have initially come into existence by oral agreements, but which had subsequently been constituted under written deeds73. It is, thus, clear that companies and cooperative societies which are registered under the respective Acts, can certainly be said to be constituted under those Acts. This being the case, we accept the argument on behalf of the Respondents that incorporated clubs or associations or prior to 1 st July, 2012 were not included in the service tax net76. What has been stated in the present judgment so far as sales tax is concerned applies on all fours to service tax; as, if the doctrine of agency, trust and mutuality is to be applied qua members clubs, there has to be an activity carried out by one person for another for consideration. We have seen how in the judgment relating to sales tax, the fact is that in members clubs there is no sale by one person to another for consideration, as one cannot sell something to oneself. This would apply on all fours when we are to construe the definition of service under Section 65B(44) as well77. However, Explanation 3 has now been incorporated, under sub-clause (a) of which unincorporated associations or body of persons and their members are statutorily to be treated as distinct persons79. It will be noticed that the aforesaid explanation is in substantially the same terms as Article 366(29-A)(e) of the Constitution of India. Earlier in this judgment qua sales tax, we have already held that the expression body of persons will not include an incorporated company, nor will it include any other form of incorporation including an incorporated co-operative society80. It will be noticed that club or association was earlier defined under Section 65(25a) and 65(25aa) to mean any person or body of persons providing service. In these definitions, the expression body of persons cannot possibly include persons who are incorporated entities, as such entities have been expressly excluded under Section 65(25a)(i) and 65(25aa)(i) as anybody established or constituted by or under any law for the time being in force . Body of persons, therefore, would not, within these definitions, include a body constituted under any law for the time being in force81. When the scheme of service tax changed so as to introduce a negative list for the first-time post 2012, services were now taxable if they were carried out by one person for another person for consideration. Person is very widely defined by Section 65B(37) as including individuals as well as all associations of persons or bodies of individuals, whether incorporated or not. Explanation 3 to Section 65B(44), instead of using the expression person or the expression an association of persons or bodies of individuals, whether incorporated or not , uses the expression a body of persons when juxtaposed with an unincorporated association82. We have already seen how the expression body of persons occurring in the explanation to Section 65 and occurring in Section 65(25a) and (25aa) does not refer to an incorporated company or an incorporated cooperative society. As the same expression has been used in Explanation 3 post-2012 (as opposed to the wide definition of person contained in Section 65B(37)), it may be assumed that the legislature has continued with the pre-2012 scheme of not taxing members clubs when they are in the incorporated form. The expression body of persons may subsume within it persons who come together for a common purpose, but cannot possibly include a company or a registered cooperative society. Thus, Explanation 3(a) to Section 65B(44) does not apply to members clubs which are incorporated83. The expression unincorporated associations would include persons who join together in some common purpose or common action – see ICT, Bombay North, Kutch and Saurashtra, Ahmedabad v. Indira Balkrishna (1960) 3 SCR 513 at page 519-520. The expression as the case may be would refer to different groups of individuals either bunched together in the form of an association also, or otherwise as a group of persons who come together with some common object in mind. Whichever way it is looked at, what is important is that the expression body of persons cannot possibly include within it bodies corporate84. We are therefore of the view that the Jharkhand High Court and the Gujarat High Court are correct in their view of the law in following Young Mens Indian Association (supra). We are also of the view that from 2005 onwards, the Finance Act of 1994 does not purport to levy service tax on members clubs in the incorporated form.
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Sinclaire Murray & Co. (P) Ltd Vs. Commissioner Of Income Tax, Calcutta | ([1964] 15 S.T.C. 403.) Ashoka Marketing Ltd. v. State of Bihar Anr.([1970] 26 S.T.C. 254) and State of U.P. &Anr. v. Annapurna Biscuit Manufacturing Co. ([1973] 32 S.T.C. 1.) the State legislature was competent to enact that provision and whether the same was constitutionally valid. Assuming that the said provision is valid, that fact would not prevent the applicability of the dictum laid down in Chowringhee Sales Bureau P. Ltd. The aforesaid decision did take into account the possibility of the appellant in that case being compelled to deposit the amount of sales tax in the State exchequer. It was accordingly observed that the appellant company would be entitled to claim deduction of the amount as and when it paid the amount to the State Government. Likewise, we would like to make it clear in the present case that if any when the appellant pays the sum of Rs. 7, 14, 398 or any part. thereof either to the State Government or to the purchaser, the appellant would be entitled to claim deduction of the sum so paid.10. Dr. Pal points out that the appellant may have to refund the amount realised by it as sales tax to the purchaser. So far as this aspect is concerned, we have already mentioned above that if and when the appellant refunds any part of the amount of sales tax to the, purchaser, the appellant would be entitled to claim deduction on that account.11. Lastly, reference has been made by Dr. Pal to the case of Morley (H. M. Inspector of Taxes) v. Messrs. Tattersall, (22 T.C. 51.) and it is submitted that once an amount was received as sales tax by the appellant it could never be treated as trading receipt. We find it difficult to, accede to the above submission because the case of Chowringhee Sales Bureau P. Ltd. is a direct authority, for; the proposition that an amount even though realised as sales tax can in a case-like the present be, treated as trading receipt. It would be pertinent in this context to refer to the finding of the High Court that the assessee-appellant in the present case did not separately earmark the amount realised as sales tax, or put it in a different account. The assessee also did not deposit the amount with the Government as and when realised nor did the assessee refund it to the purchaser from who m the amount had been realised. The High Court has further found that the assessee company mixed up the amount of sales tax with its own funds and treated the same as its own money. Nothing cogent has been brought to our notice to justify interference with the above findings.12. In. the case of Messrs George Oakes (Private) Ltd. v. The State of Madras &Ors. ([1961] 12 STC 476 ) the Constitution Bench of this Court held that the Madras General Sales Tax (Definition of Turnover and Validation of Assessments) A ct, 1954 was not bad on the ground of legislative incompetence. In that context this Court observed that when the seller passes on the tax and the buyer agrees to pay sales tax in addition to the price, the tax is really part of the entire consideration and the distinction between the two amounts tax and price-loses all significance. This Court in that case relied upon the following observation of Lawrence J. in Paprika Ltd. &Anr. v. Board of Trade.([1944] 1 All. E.R. 372.)"Whenever a sale attracts purchase tax, that tax presumably affects the price which the seller who is liable to pay the tax demands but it does not cease to be the price which the buyer has to pay even if the price is expressed as X plus purchase tax."13. Reliance was also placed upon the following observation of Goddard, L. J. in Love v. Norman Wright (Builders) Ltd.([1944] 1 All. E.R. 618.)"Where an article is taxed, whether by purchase tax, customs duty, or excise duty, the tax becomes part of the price which ordinarily the buyer will have to pay. The price of an ounce of tobacco is what it is because of the rate of tax, but on a sale there is only one consideration though made up of cost plus profit plus tax. So, if a seller offers goods for sale, it is for him to quote a price which includes the tax if be desires to pass it on to the buyer. If the buyer agrees to the price, it is not for him to consider how it is made up or whether the seller has included tax or not."14. After referring to these observations S. K. Das J. speaking for the Constitution Bench of this Court observed"We think that these observations are apposite even in the context of the provisions of the Acts we are considering now, and there is nothing in those provisions which would indicate that when the dealer collects any amount by way of tax, that cannot be part of the sale price. So far as the purchaser is concerned, he pays for the good s what the seller demands viz., X price even though it may includes tax. That is the whole consideration for the sale and there is no reason why the whole amount paid to the seller by the purchaser should not be treated as the consideration for the sale and included in the turnover."15. We are, therefore, of the view that the submission which has been made by Dr. Pal that the sales tax should not be treated to be a part of the price realised by the assessee from the purchaser is not well-founded. The case of Tattersall can be of no help to the appellant because the amount with which the court was concerned in that case was, never received by the assessee as income or trading receipt. In any case, as already observed, the question with which we are concerned stands concluded by the case of Chowringhee Sales Bureau P. Ltd.16. | 0[ds]In the case of Chowringhee Sales Bureau P. Ltd. the appellant company was a dealer in furniture and also act ed as an auctioneer. In respect of sales effected by the appellant as auctioneer, it realised during the year in question in addition to the commission, Rs. 32, 986 as sales tax. This amount was credited separately in its account books under the head "sales tax collection account". The appellant did not pay the amount of sales tax to the actual owner of the goods nor did it deposit the amount realised by it as sales tax in the State exchequer because it took the position that statutory provision creating that liability upon it was not valid. The appellant also did not refund the amount to persons from whom it had been collected. In the cash memos issued by the appellant to the purchasers in the auction sales the appellant was shown as the seller. This Court held that the sum of Rs. 32, 986 realised as sales tax by the appellant company in its character as an auctioneer formed part of the trading or business receipts. The fact that the appellant credited the amount received as sales tax under the head "sales tax collection account" did not make any material difference. According to this Court, it is the true nature and quality of the receipt and not the head under which it is entered in the account books as would prove decisive. If a receipt is a trading receipt the fact that it is not so shown in the account books of the assessee would not prevent the assessing authority from treating it as trading receipt. The Court further observed that the appellant company would be entitled to claim deduction of the amount as and when it paid it to the Stateabove decision, in our opinion, fully applies to this case and in view of it, there is no escape from the conclusion that the amount of Rs. 7, 14, 398 should be treated as tradingare, therefore, of the view that the submission which has been made by Dr. Pal that the sales tax should not be treated to be a part of the price realised by the assessee from the purchaser is not well-founded. The case of Tattersall can be of no help to the appellant because the amount with which the court was concerned in that case was, never received by the assessee as income or trading receipt. In any case, as already observed, the question with which we are concerned stands concluded by the case of Chowringhee Sales Bureau P. Ltd. | 0 | 2,957 | 474 | ### 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:
([1964] 15 S.T.C. 403.) Ashoka Marketing Ltd. v. State of Bihar Anr.([1970] 26 S.T.C. 254) and State of U.P. &Anr. v. Annapurna Biscuit Manufacturing Co. ([1973] 32 S.T.C. 1.) the State legislature was competent to enact that provision and whether the same was constitutionally valid. Assuming that the said provision is valid, that fact would not prevent the applicability of the dictum laid down in Chowringhee Sales Bureau P. Ltd. The aforesaid decision did take into account the possibility of the appellant in that case being compelled to deposit the amount of sales tax in the State exchequer. It was accordingly observed that the appellant company would be entitled to claim deduction of the amount as and when it paid the amount to the State Government. Likewise, we would like to make it clear in the present case that if any when the appellant pays the sum of Rs. 7, 14, 398 or any part. thereof either to the State Government or to the purchaser, the appellant would be entitled to claim deduction of the sum so paid.10. Dr. Pal points out that the appellant may have to refund the amount realised by it as sales tax to the purchaser. So far as this aspect is concerned, we have already mentioned above that if and when the appellant refunds any part of the amount of sales tax to the, purchaser, the appellant would be entitled to claim deduction on that account.11. Lastly, reference has been made by Dr. Pal to the case of Morley (H. M. Inspector of Taxes) v. Messrs. Tattersall, (22 T.C. 51.) and it is submitted that once an amount was received as sales tax by the appellant it could never be treated as trading receipt. We find it difficult to, accede to the above submission because the case of Chowringhee Sales Bureau P. Ltd. is a direct authority, for; the proposition that an amount even though realised as sales tax can in a case-like the present be, treated as trading receipt. It would be pertinent in this context to refer to the finding of the High Court that the assessee-appellant in the present case did not separately earmark the amount realised as sales tax, or put it in a different account. The assessee also did not deposit the amount with the Government as and when realised nor did the assessee refund it to the purchaser from who m the amount had been realised. The High Court has further found that the assessee company mixed up the amount of sales tax with its own funds and treated the same as its own money. Nothing cogent has been brought to our notice to justify interference with the above findings.12. In. the case of Messrs George Oakes (Private) Ltd. v. The State of Madras &Ors. ([1961] 12 STC 476 ) the Constitution Bench of this Court held that the Madras General Sales Tax (Definition of Turnover and Validation of Assessments) A ct, 1954 was not bad on the ground of legislative incompetence. In that context this Court observed that when the seller passes on the tax and the buyer agrees to pay sales tax in addition to the price, the tax is really part of the entire consideration and the distinction between the two amounts tax and price-loses all significance. This Court in that case relied upon the following observation of Lawrence J. in Paprika Ltd. &Anr. v. Board of Trade.([1944] 1 All. E.R. 372.)"Whenever a sale attracts purchase tax, that tax presumably affects the price which the seller who is liable to pay the tax demands but it does not cease to be the price which the buyer has to pay even if the price is expressed as X plus purchase tax."13. Reliance was also placed upon the following observation of Goddard, L. J. in Love v. Norman Wright (Builders) Ltd.([1944] 1 All. E.R. 618.)"Where an article is taxed, whether by purchase tax, customs duty, or excise duty, the tax becomes part of the price which ordinarily the buyer will have to pay. The price of an ounce of tobacco is what it is because of the rate of tax, but on a sale there is only one consideration though made up of cost plus profit plus tax. So, if a seller offers goods for sale, it is for him to quote a price which includes the tax if be desires to pass it on to the buyer. If the buyer agrees to the price, it is not for him to consider how it is made up or whether the seller has included tax or not."14. After referring to these observations S. K. Das J. speaking for the Constitution Bench of this Court observed"We think that these observations are apposite even in the context of the provisions of the Acts we are considering now, and there is nothing in those provisions which would indicate that when the dealer collects any amount by way of tax, that cannot be part of the sale price. So far as the purchaser is concerned, he pays for the good s what the seller demands viz., X price even though it may includes tax. That is the whole consideration for the sale and there is no reason why the whole amount paid to the seller by the purchaser should not be treated as the consideration for the sale and included in the turnover."15. We are, therefore, of the view that the submission which has been made by Dr. Pal that the sales tax should not be treated to be a part of the price realised by the assessee from the purchaser is not well-founded. The case of Tattersall can be of no help to the appellant because the amount with which the court was concerned in that case was, never received by the assessee as income or trading receipt. In any case, as already observed, the question with which we are concerned stands concluded by the case of Chowringhee Sales Bureau P. Ltd.16.
### Response:
0
### Explanation:
In the case of Chowringhee Sales Bureau P. Ltd. the appellant company was a dealer in furniture and also act ed as an auctioneer. In respect of sales effected by the appellant as auctioneer, it realised during the year in question in addition to the commission, Rs. 32, 986 as sales tax. This amount was credited separately in its account books under the head "sales tax collection account". The appellant did not pay the amount of sales tax to the actual owner of the goods nor did it deposit the amount realised by it as sales tax in the State exchequer because it took the position that statutory provision creating that liability upon it was not valid. The appellant also did not refund the amount to persons from whom it had been collected. In the cash memos issued by the appellant to the purchasers in the auction sales the appellant was shown as the seller. This Court held that the sum of Rs. 32, 986 realised as sales tax by the appellant company in its character as an auctioneer formed part of the trading or business receipts. The fact that the appellant credited the amount received as sales tax under the head "sales tax collection account" did not make any material difference. According to this Court, it is the true nature and quality of the receipt and not the head under which it is entered in the account books as would prove decisive. If a receipt is a trading receipt the fact that it is not so shown in the account books of the assessee would not prevent the assessing authority from treating it as trading receipt. The Court further observed that the appellant company would be entitled to claim deduction of the amount as and when it paid it to the Stateabove decision, in our opinion, fully applies to this case and in view of it, there is no escape from the conclusion that the amount of Rs. 7, 14, 398 should be treated as tradingare, therefore, of the view that the submission which has been made by Dr. Pal that the sales tax should not be treated to be a part of the price realised by the assessee from the purchaser is not well-founded. The case of Tattersall can be of no help to the appellant because the amount with which the court was concerned in that case was, never received by the assessee as income or trading receipt. In any case, as already observed, the question with which we are concerned stands concluded by the case of Chowringhee Sales Bureau P. Ltd.
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M/s. Dalmia Dadri Cement Limited Vs. Murari Lal Bikaneria | some members in the managerial cadre and it would not have been at all difficult for the works manager to appoint as enquiry officer some person of the factory itself over whom he was likely to have greater influence than on an outsider. As he himself was going to be a witness in the enquiry he entrusted the appointment of the enquiry officer to the Director of the company. We find nothing unfair in this and are unable to take any exception to the course adopted. 20. The other grounds mentioned by the Tribunal for holding that the enquiry was not a bonafide one appear to be equally unsustainable. The enquiry officer, as already noted, was a lawyer and if he made a report which bore the stamp of a lawyers work it would not be unexpected. The circumstances do not justify the conclusion that he had acted unduly hastily. He started the enquiry on the 9th September and concluded it nearly a month thereafter. He held several sittings. He adjourned the case to 25th September to suit the convenience of Murari Lal whose request for adjournment for a month to the middle of October does not appear to have been based on any genuine ground. He sent for the workmen when they failed to turn up and noted what the messenger deputed to summon them had stated. We have referred in some detail to the correspondence which passed prior to the enquiry merely to show that Murari Lals attitude throughout was to delay the proceedings and to frustrate them if possible. His excuse for not appearing in the proceedings was frivolous. He purposely delayed giving his reply to the charges and raised all sorts of frivolous objections from time to time to hold up the enquiry. Moreover the delay in the holding of the enquiry, if any, was not made a ground of complaint by Murari Lal and the Tribunals comment in regard thereto appears to be unjustified. 21. We do not accept the view of the Tribunal that the works manager did not apply his mind to the facts before ordering dismissal of the workmen and that he was simply following the suggestion of "the approved authorities". The order passed by the mere fact that he had referred to the opinion of others in some of the orders did not exclude his having formed an opinion of his own and when his own view was the same as that of the director no exception could be taken to the fact that he had also referred to such opinion. 22. In Saran Motors v. Vishwanath and another [1964 - II L.L.J. 139] this Court rejected the objection as to bias of the enquiry officer upheld by the Tribunal on the ground that the enquiry officer had at times been engaged by the appellant as a lawyer in industrial matters and had been entrusted with the work of holding enquiries on some previous occasions observing that the mere fact of a persons occasional employer did not render him incompetent to hold a domestic enquiry. 23. In our view there was sufficient evidence before the enquiry officer to come to the conclusion arrived at by him. Banwari Lal admitted that he had blown the whistle at the instance of Murari Lal leading to the stoppage of work in the factory. Such an act of indiscipline of the part of a worker could hardly be expected to be tolerated by any employer who attaches any value to discipline in his factory whatever be the reason for the demand for cessation of work. The more so, because Murari Lal was then under orders of suspension and was not supposed to enter the factory premises. Leaving out of account the second and the third charges which were not pressed before the Tribunal, there was ample evidence before the enquiry officer to arrive at the conclusion hi did. There was certainly a prima facie case established by the employer which could be controverted by Murari Lal adducing evidence to the contrary.24. It was argued before us that the Tribunals finding ought to be upset in view of the fact that Murari Lal had been in service of the appellant for 27 years without any blemish on his record and that the incidents of 27th and 28th May, 1964, even if proved, were not of such a grave nature as called for dismissal and the management might have overlooked the fault, if any, committed by Murari Lal. In the evidence before the Tribunal, Murari Lal had stated that some charge-sheets had been issued to him during the years 1947-50 and also thereafter and that he could produce the charge-sheets if given an opportunity to do so. He could not however state the nature of the charges contained therein. Counsel for the appellant appears to have state that the management had never issued charge sheets to the respondent except on two occasions to which the dispute related and wanted Murari Lal to produce any charge-sheets particularly any after 1960. From the record of the case it is not possible to come to any conclusion whether any charge-sheets had in fact been issued to the respondent before 1964. We cannot hold that the issue of four charge sheets in the year 1964 between 4th June and early in October was evidence of motive to victimise. The charge regarding the incidents of 27th and 28th of May was sufficiently serious for the management to have proceeded in the way it did not merely because the respondent admitted that he had himself made the amendment to his leave application it cannot be said that the appellant should not have pressed that charge. It was said that for an incident like this no greater punishment than with holding of a days pay was called for. There would have been much to be said in favour of the workman if that was the only charge on which he was being proceeded against. | 0[ds]19. We find ourselves unable to accept the conclusionsd atby the Tribunal. The Tribunal seems to have been greatly impressed by the fact that instead of appointing someone in the appellants factory itself as the enquiry officer the works manager had brought in an outsider who was no other than a junior advocate occasionally assisting Anand Prakash, their counsel, in some matters. The Tribunals view that this was wholly unwarranted and done with the purpose of loading the dice against the workmen appears to be unreasonable. Merely because the enquiry officer was a junior advocate and that he had on occasions been engaged by the appellant, it is not possible to take the view that he would necessarily be biased against the workmen. Evidently some of the workmen had behaved rudely to some members in the managerial cadre and it would not have been at all difficult for the works manager to appoint as enquiry officer some person of the factory itself over whom he was likely to have greater influence than on an outsider. As he himself was going to be a witness in the enquiry he entrusted the appointment of the enquiry officer to the Director of the company. We find nothing unfair in this and are unable to take any exception to the course adopted20. The other grounds mentioned by the Tribunal for holding that the enquiry was not a bonafide one appear to be equally unsustainable. The enquiry officer, as already noted, was a lawyer and if he made a report which bore the stamp of a lawyers work it would not be unexpected. The circumstances do not justify the conclusion that he had acted unduly hastily. He started the enquiry on the 9th September and concluded it nearly a month thereafter. He held several sittings. He adjourned the case to 25th September to suit the convenience of Murari Lal whose request for adjournment for a month to the middle of October does not appear to have been based on any genuine ground. He sent for the workmen when they failed to turn up and noted what the messenger deputed to summon them had stated. We have referred in some detail to the correspondence which passed prior to the enquiry merely to show that Murari Lals attitude throughout was to delay the proceedings and to frustrate them if possible. His excuse for not appearing in the proceedings was frivolous. He purposely delayed giving his reply to the charges and raised all sorts of frivolous objections from time to time to hold up the enquiry. Moreover the delay in the holding of the enquiry, if any, was not made a ground of complaint by Murari Lal and the Tribunals comment in regard thereto appears to be unjustified21. We do not accept the view of the Tribunal that the works manager did not apply his mind to the facts before ordering dismissal of the workmen and that he was simply following the suggestion of "the approved authorities". The order passed by the mere fact that he had referred to the opinion of others in some of the orders did not exclude his having formed an opinion of his own and when his own view was the same as that of the director no exception could be taken to the fact that he had also referred to such opinion23. In our view there was sufficient evidence before the enquiry officer to come to the conclusiond atby him. Banwari Lal admitted that he had blown the whistle at the instance of Murari Lal leading to the stoppage of work in the factory. Such an act of indiscipline of the part of a worker could hardly be expected to be tolerated by any employer who attaches any value to discipline in his factory whatever be the reason for the demand for cessation of work. The more so, because Murari Lal was then under orders of suspension and was not supposed to enter the factory premises. Leaving out of account the second and the third charges which were not pressed before the Tribunal, there was ample evidence before the enquiry officer to arrive at the conclusion hi did. There was certainly a prima facie case established by the employer which could be controverted by Murari Lal adducing evidence to the contrary.In the evidence before the Tribunal, Murari Lal had stated that somes had been issued to him during the years0 and also thereafter and that he could produce thes if given an opportunity to do so. He could not however state the nature of the charges contained therein. Counsel for the appellant appears to have state that the management had never issued charge sheets to the respondent except on two occasions to which the dispute related and wanted Murari Lal to produce anys particularly any after 1960. From the record of the case it is not possible to come to any conclusion whether anys had in fact been issued to the respondent before 1964. We cannot hold that the issue of four charge sheets in the year 1964 between 4th June and early in October was evidence of motive to victimise. The charge regarding the incidents of 27th and 28th of May was sufficiently serious for the management to have proceeded in the way it did not merely because the respondent admitted that he had himself made the amendment to his leave application it cannot be said that the appellant should not have pressed that charge. It was said that for an incident like this no greater punishment than with holding of a days pay was called for. There would have been much to be said in favour of the workman if that was the only charge on which he was being proceeded against | 0 | 4,910 | 1,013 | ### Instruction:
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some members in the managerial cadre and it would not have been at all difficult for the works manager to appoint as enquiry officer some person of the factory itself over whom he was likely to have greater influence than on an outsider. As he himself was going to be a witness in the enquiry he entrusted the appointment of the enquiry officer to the Director of the company. We find nothing unfair in this and are unable to take any exception to the course adopted. 20. The other grounds mentioned by the Tribunal for holding that the enquiry was not a bonafide one appear to be equally unsustainable. The enquiry officer, as already noted, was a lawyer and if he made a report which bore the stamp of a lawyers work it would not be unexpected. The circumstances do not justify the conclusion that he had acted unduly hastily. He started the enquiry on the 9th September and concluded it nearly a month thereafter. He held several sittings. He adjourned the case to 25th September to suit the convenience of Murari Lal whose request for adjournment for a month to the middle of October does not appear to have been based on any genuine ground. He sent for the workmen when they failed to turn up and noted what the messenger deputed to summon them had stated. We have referred in some detail to the correspondence which passed prior to the enquiry merely to show that Murari Lals attitude throughout was to delay the proceedings and to frustrate them if possible. His excuse for not appearing in the proceedings was frivolous. He purposely delayed giving his reply to the charges and raised all sorts of frivolous objections from time to time to hold up the enquiry. Moreover the delay in the holding of the enquiry, if any, was not made a ground of complaint by Murari Lal and the Tribunals comment in regard thereto appears to be unjustified. 21. We do not accept the view of the Tribunal that the works manager did not apply his mind to the facts before ordering dismissal of the workmen and that he was simply following the suggestion of "the approved authorities". The order passed by the mere fact that he had referred to the opinion of others in some of the orders did not exclude his having formed an opinion of his own and when his own view was the same as that of the director no exception could be taken to the fact that he had also referred to such opinion. 22. In Saran Motors v. Vishwanath and another [1964 - II L.L.J. 139] this Court rejected the objection as to bias of the enquiry officer upheld by the Tribunal on the ground that the enquiry officer had at times been engaged by the appellant as a lawyer in industrial matters and had been entrusted with the work of holding enquiries on some previous occasions observing that the mere fact of a persons occasional employer did not render him incompetent to hold a domestic enquiry. 23. In our view there was sufficient evidence before the enquiry officer to come to the conclusion arrived at by him. Banwari Lal admitted that he had blown the whistle at the instance of Murari Lal leading to the stoppage of work in the factory. Such an act of indiscipline of the part of a worker could hardly be expected to be tolerated by any employer who attaches any value to discipline in his factory whatever be the reason for the demand for cessation of work. The more so, because Murari Lal was then under orders of suspension and was not supposed to enter the factory premises. Leaving out of account the second and the third charges which were not pressed before the Tribunal, there was ample evidence before the enquiry officer to arrive at the conclusion hi did. There was certainly a prima facie case established by the employer which could be controverted by Murari Lal adducing evidence to the contrary.24. It was argued before us that the Tribunals finding ought to be upset in view of the fact that Murari Lal had been in service of the appellant for 27 years without any blemish on his record and that the incidents of 27th and 28th May, 1964, even if proved, were not of such a grave nature as called for dismissal and the management might have overlooked the fault, if any, committed by Murari Lal. In the evidence before the Tribunal, Murari Lal had stated that some charge-sheets had been issued to him during the years 1947-50 and also thereafter and that he could produce the charge-sheets if given an opportunity to do so. He could not however state the nature of the charges contained therein. Counsel for the appellant appears to have state that the management had never issued charge sheets to the respondent except on two occasions to which the dispute related and wanted Murari Lal to produce any charge-sheets particularly any after 1960. From the record of the case it is not possible to come to any conclusion whether any charge-sheets had in fact been issued to the respondent before 1964. We cannot hold that the issue of four charge sheets in the year 1964 between 4th June and early in October was evidence of motive to victimise. The charge regarding the incidents of 27th and 28th of May was sufficiently serious for the management to have proceeded in the way it did not merely because the respondent admitted that he had himself made the amendment to his leave application it cannot be said that the appellant should not have pressed that charge. It was said that for an incident like this no greater punishment than with holding of a days pay was called for. There would have been much to be said in favour of the workman if that was the only charge on which he was being proceeded against.
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19. We find ourselves unable to accept the conclusionsd atby the Tribunal. The Tribunal seems to have been greatly impressed by the fact that instead of appointing someone in the appellants factory itself as the enquiry officer the works manager had brought in an outsider who was no other than a junior advocate occasionally assisting Anand Prakash, their counsel, in some matters. The Tribunals view that this was wholly unwarranted and done with the purpose of loading the dice against the workmen appears to be unreasonable. Merely because the enquiry officer was a junior advocate and that he had on occasions been engaged by the appellant, it is not possible to take the view that he would necessarily be biased against the workmen. Evidently some of the workmen had behaved rudely to some members in the managerial cadre and it would not have been at all difficult for the works manager to appoint as enquiry officer some person of the factory itself over whom he was likely to have greater influence than on an outsider. As he himself was going to be a witness in the enquiry he entrusted the appointment of the enquiry officer to the Director of the company. We find nothing unfair in this and are unable to take any exception to the course adopted20. The other grounds mentioned by the Tribunal for holding that the enquiry was not a bonafide one appear to be equally unsustainable. The enquiry officer, as already noted, was a lawyer and if he made a report which bore the stamp of a lawyers work it would not be unexpected. The circumstances do not justify the conclusion that he had acted unduly hastily. He started the enquiry on the 9th September and concluded it nearly a month thereafter. He held several sittings. He adjourned the case to 25th September to suit the convenience of Murari Lal whose request for adjournment for a month to the middle of October does not appear to have been based on any genuine ground. He sent for the workmen when they failed to turn up and noted what the messenger deputed to summon them had stated. We have referred in some detail to the correspondence which passed prior to the enquiry merely to show that Murari Lals attitude throughout was to delay the proceedings and to frustrate them if possible. His excuse for not appearing in the proceedings was frivolous. He purposely delayed giving his reply to the charges and raised all sorts of frivolous objections from time to time to hold up the enquiry. Moreover the delay in the holding of the enquiry, if any, was not made a ground of complaint by Murari Lal and the Tribunals comment in regard thereto appears to be unjustified21. We do not accept the view of the Tribunal that the works manager did not apply his mind to the facts before ordering dismissal of the workmen and that he was simply following the suggestion of "the approved authorities". The order passed by the mere fact that he had referred to the opinion of others in some of the orders did not exclude his having formed an opinion of his own and when his own view was the same as that of the director no exception could be taken to the fact that he had also referred to such opinion23. In our view there was sufficient evidence before the enquiry officer to come to the conclusiond atby him. Banwari Lal admitted that he had blown the whistle at the instance of Murari Lal leading to the stoppage of work in the factory. Such an act of indiscipline of the part of a worker could hardly be expected to be tolerated by any employer who attaches any value to discipline in his factory whatever be the reason for the demand for cessation of work. The more so, because Murari Lal was then under orders of suspension and was not supposed to enter the factory premises. Leaving out of account the second and the third charges which were not pressed before the Tribunal, there was ample evidence before the enquiry officer to arrive at the conclusion hi did. There was certainly a prima facie case established by the employer which could be controverted by Murari Lal adducing evidence to the contrary.In the evidence before the Tribunal, Murari Lal had stated that somes had been issued to him during the years0 and also thereafter and that he could produce thes if given an opportunity to do so. He could not however state the nature of the charges contained therein. Counsel for the appellant appears to have state that the management had never issued charge sheets to the respondent except on two occasions to which the dispute related and wanted Murari Lal to produce anys particularly any after 1960. From the record of the case it is not possible to come to any conclusion whether anys had in fact been issued to the respondent before 1964. We cannot hold that the issue of four charge sheets in the year 1964 between 4th June and early in October was evidence of motive to victimise. The charge regarding the incidents of 27th and 28th of May was sufficiently serious for the management to have proceeded in the way it did not merely because the respondent admitted that he had himself made the amendment to his leave application it cannot be said that the appellant should not have pressed that charge. It was said that for an incident like this no greater punishment than with holding of a days pay was called for. There would have been much to be said in favour of the workman if that was the only charge on which he was being proceeded against
|
Workmen Of The Bombay Port Trust Vs. Trustees Of Port Of Bombay | the wage for 30 days. Thus, it is said, the total receipts for the 26 days, if no separate payment is made for the rest days will be 26 x 1/26th of 30 days wage, that is, 30 days wage. The fallacy in this argument is that it ignores the essential fact that once the daily wage is fixed at a certain figure it no longer retains its character of being 1/26th of the monthly wage. However arrived at, the daily wage is a daily wage and it is wrong to regard it as a certain fraction of the monthly wage. When the Central Government in making these Minimum Wages Rules made this provision for payment on a holiday it clearly intended that something in addition to what was being actually received for the six days of the week should be paid. This cannot be defeated by a statement that though in form six days wages were being paid, in fact and in substance, seven days wages were being paid. By no stretch of imagination can payment for six days be equated to payment for seven days. 15. We have therefore come to the conclusion that the workmen of the A and B categories are entitled to arrears of wages in respect of Sundays during the period October 1953 to March 2, 1956. 16. With effect from March 3, 1956 the Piece-rate Scheme was introduced for the shore workers belonging to the "A" category and "B" category. The essentials of this scheme are that a datum line was fixed for the different kinds of work and the piece rate wage would vary with the proportion which the outturn of the gang bears to the datum line in the following manner:-"For a shift fully occupied in doing piece rate work the piece rate wage of the basic gang worker (inclusive of basic pay and the allowances above mentioned) shall rise uniformly from Rs. 3-1-0 at 76 per cent to Rs. 4-5-0 at 100 per cent to Rs. 8 at 150 per cent of the datum line. The piece rate wage earned after 150 per cent of the datum line shall be processed at double the daily wage that is to say the piece rate wage will rise uniformly from Rs. 8 at 150 per cent to Rs. 12 at 200 per cent of the datum line." The scheme further provided that :-"Rs. 3-1-0 (comprised of Rs. 1/8/- basic wage including allowances and Rs. 1/9/-dearness allowance) shall be the minimum guaranteed wage per day on which a gang worker is given employment; if on any day the piece work earning plus idle time payment and/or other earning under this appendix fall short of the said minimum, the Port Trust shall make up the difference that day." "Rs. 3-7-0 (comprised of Rs. 1/14/basic wage including allowances and Rs. 1-9-0 dearness allowance) shall be the minimum guaranteed wage per day on which a morpia is given employment." 17. On behalf of the respondent a question was raised before us that Rule 23 of the Minimum Wages Rules does not apply to these workmen after the piece rate scheme was introduced. It is urged that for such worker there is no daily wage, as what the piece worker receives varies from day to day according to his total output. It may even happen, it is suggested, that on a certain day on which output is nil, the piece rate worker will receive nothing. Against this, Mr. Gokhales argument is that average daily wages during the preceding week means average of the total earnings per day during the Preceding week and so there can be no difficulty in ascertaining for every worker his average daily wages during any week. 18. We are not prepared to accept this construction of average daily wages as average earnings per day. The daily wage has in the industrial world a definite significance in contra-distinction to weekly wages or monthly wages. The weekly wages or monthly wages of a person would not as ordinarily understood include the extra earnings of the workmen by working overtime. So also, in our opinion; the term daily wages as ordinarily understood does not include over-time earnings. If it does not include over-time earnings, can it reasonably be said that it includes the high additional earnings that a worker may receive by increasing his output above the minimum fixed? We do not think that to be a reasonable interpretation of the words "daily wages". At the same time, we see no reason why the guaranteed minimum fixed for each workman per day should not be considered his daily wages. The piece rate system introduced for these workmen has fixed such a minimum. Indeed, the fixation of such a minimum wage for a piece rate system makes, it may be said, the piece rate a time rate-cum-piece rate in which the guaranteed minimum is the time rate daily wage and the extra earnings are piece rates. The argument that Rule 23 does not apply to this workmen after the introduction of the piece rate scheme must therefore be rejected. 19. its regards this period also (that is, the period from March 3, 1956 onwards) Mr. Desai contended that there has been constructive payment of the workers as the guaranteed minimum was arrived at by dividing the monthly wage by 26. For the reasons for which this argument was rejected in respect of the period October, 1953 to March 2, 1956, we reject this plea of constructive payment. 20. We are therefore of opinion that the workers of categories A and B are entitled to arrears of wages for the Sundays from March 3, 1956 on the basis that the guaranteed minimum wage was the daily wage. 21. As has already been mentioned, Rule 23 was amended in July 1960, i.e., long after the Tribunal gave the award under appeal. We express no opinion as to what the position in law is, after this amendment of Rule 23. | 1[ds]5. We may state at once that the dispute as regards arrears due to workers belonging to "casual" category has not been pressed before its and does not therefore require consideration in this appeal. The claim as regards arrears of wages for the period March 15, 1951, to October 1953 (except what has already been awarded for this period to Morphias) does not also merit serious consideration, as the learned counsel for the appellant was unable to show any legal basis for such a claim.The Minimum ages Act 1948 itself contains provisions for contravention of the provisions of the Act or Rules or Orders made thereunder. Section 22 provides for punishment inter alia for contravention of rules or orders under section 13. Section 22A provides for punishment with fine (which may extend to five hundred rupees) for contravention of any provision of the Act or of any rule or order made thereunder if no other penalty is provided for such contravention. The Minimum wages Rules were made by the Central Government in exercise of the powers conferred by section 30 of the Minimum Wages Act, 1948 (Act XI of 1948)and so contravention of Rule 23 of these rules is punishable under section 22A of the Act. Whether or not any action is taken against the employer for such contravention, the Industrial Tribunal has no authority to impose some other penalty in the shape of making the employer pay in respect of work done on Sundays something more than what he would have otherwise have to pay Neither the Minimum Wages Act nor the Rules contain any provision for such additional payment over and above what would be payable for overtime work as such. The workmens claim for further payment in respect of work done on Sundays during the period March 15, 1951 to October 1953 has therefore been rightly rejected7. The main policy underlying the rule obviously is that workmen shall have full rest at frequent intervals-ordinarily once in every 7 days but in no case at intervals of more than 10 days. This was clearly in accordance with the principle laid down in section 13 of the Minimum Wages Act that the Government may provide for a day of rest for every period of 7 days even though in framing the Minimum Wages (Central) Rules 1960 which covers many other matters other than the matters mentioned in section 13) no reference has been made to section 13 at allIt seems to us unreasonable to impute the rule-making authority an intention that while if the weekly rest is given "on the said day" that is, Sunday the workmen shall receive payment, he shall receive no payment if and when the employer takes advantage of the provisions that no workman may be required or allowed to work on Sunday when he has or will have a holiday for the whole day on one of the five days immediately before or after the said day."For, if that be permitted, the employer would always give the weekly holiday on one of the 5 days immediately before or after the Sunday and thus avoid payment for the rest day. It seems clear to us therefore that in using the words "for which" after the words the said day" the rule-making authority did not intend to confine the word "which to this "said day" but intended to relate this "which" to any of the days on which rest is given. In other words, "for which" was used as short for "and on such holiday whether on the said day or not". We do not think the rules of grammar stand in the way of this interpretationThat will however be to re-write the sentence in a manner for which we can find no justification. It is proper to remember also that this interpretation will have the peculiar consequence that if the rest day is given on first day of the week no payment will have to be made, but if it is given on some other day payment will have to be made. It will be unreasonable to ascribe such an intention to the legislature11. Reading the operative portion of this rule with the proviso that the weekly holiday may be substituted by another day it appears to us clear that the rule making authority did not draw any distinction between the holiday on the first day of the week or the holiday on one of the five days immediately before or after the said day. It was this weekly holiday-whether given on the 1st day of the week or whether on one of the five days immediately before or after the said day-that under the proviso could be substituted by another day. The scheme clearly is for one holiday, generally, once in a week and it is for this one holiday that payment is provided. In our opinion, the view taken by the Allahabad High Court is correct13. On a proper construction of the rule it must, in our opinion, be held that the workmen of categories A and B were entitled to receive payment "equal to the average wages during the preceding week" in respect of the period October 1953 to March 2, 1956The fallacy in this argument is that it ignores the essential fact that once the daily wage is fixed at a certain figure it no longer retains its character of being 1/26th of the monthly wage. However arrived at, the daily wage is a daily wage and it is wrong to regard it as a certain fraction of the monthly wage. When the Central Government in making these Minimum Wages Rules made this provision for payment on a holiday it clearly intended that something in addition to what was being actually received for the six days of the week should be paid. This cannot be defeated by a statement that though in form six days wages were being paid, in fact and in substance, seven days wages were being paid. By no stretch of imagination can payment for six days be equated to payment for seven days15. We have therefore come to the conclusion that the workmen of the A and B categories are entitled to arrears of wages in respect of Sundays during the period October 1953 to March 2, 195618. We are not prepared to accept this construction of average daily wages as average earnings per day. The daily wage has in the industrial world a definite significance in contra-distinction to weekly wages or monthly wages. The weekly wages or monthly wages of a person would not as ordinarily understood include the extra earnings of the workmen by working overtime. So also, in our opinion; the term daily wages as ordinarily understood does not include over-time earningsWe do not think that to be a reasonable interpretation of the words "daily wages". At the same time, we see no reason why the guaranteed minimum fixed for each workman per day should not be considered his daily wages. The piece rate system introduced for these workmen has fixed such a minimum. Indeed, the fixation of such a minimum wage for a piece rate system makes, it may be said, the piece rate a time rate-cum-piece rate in which the guaranteed minimum is the time rate daily wage and the extra earnings are piece rates. The argument that Rule 23 does not apply to this workmen after the introduction of the piece rate scheme must therefore be rejectedFor the reasons for which this argument was rejected in respect of the period October, 1953 to March 2, 1956, we reject this plea of constructive payment20. We are therefore of opinion that the workers of categories A and B are entitled to arrears of wages for the Sundays from March 3, 1956 on the basis that the guaranteed minimum wage was the daily wage21. As has already been mentioned, Rule 23 was amended in July 1960, i.e., long after the Tribunal gave the award under appeal. We express no opinion as to what the position in law is, after this amendment of Rule 23. | 1 | 3,887 | 1,460 | ### Instruction:
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the wage for 30 days. Thus, it is said, the total receipts for the 26 days, if no separate payment is made for the rest days will be 26 x 1/26th of 30 days wage, that is, 30 days wage. The fallacy in this argument is that it ignores the essential fact that once the daily wage is fixed at a certain figure it no longer retains its character of being 1/26th of the monthly wage. However arrived at, the daily wage is a daily wage and it is wrong to regard it as a certain fraction of the monthly wage. When the Central Government in making these Minimum Wages Rules made this provision for payment on a holiday it clearly intended that something in addition to what was being actually received for the six days of the week should be paid. This cannot be defeated by a statement that though in form six days wages were being paid, in fact and in substance, seven days wages were being paid. By no stretch of imagination can payment for six days be equated to payment for seven days. 15. We have therefore come to the conclusion that the workmen of the A and B categories are entitled to arrears of wages in respect of Sundays during the period October 1953 to March 2, 1956. 16. With effect from March 3, 1956 the Piece-rate Scheme was introduced for the shore workers belonging to the "A" category and "B" category. The essentials of this scheme are that a datum line was fixed for the different kinds of work and the piece rate wage would vary with the proportion which the outturn of the gang bears to the datum line in the following manner:-"For a shift fully occupied in doing piece rate work the piece rate wage of the basic gang worker (inclusive of basic pay and the allowances above mentioned) shall rise uniformly from Rs. 3-1-0 at 76 per cent to Rs. 4-5-0 at 100 per cent to Rs. 8 at 150 per cent of the datum line. The piece rate wage earned after 150 per cent of the datum line shall be processed at double the daily wage that is to say the piece rate wage will rise uniformly from Rs. 8 at 150 per cent to Rs. 12 at 200 per cent of the datum line." The scheme further provided that :-"Rs. 3-1-0 (comprised of Rs. 1/8/- basic wage including allowances and Rs. 1/9/-dearness allowance) shall be the minimum guaranteed wage per day on which a gang worker is given employment; if on any day the piece work earning plus idle time payment and/or other earning under this appendix fall short of the said minimum, the Port Trust shall make up the difference that day." "Rs. 3-7-0 (comprised of Rs. 1/14/basic wage including allowances and Rs. 1-9-0 dearness allowance) shall be the minimum guaranteed wage per day on which a morpia is given employment." 17. On behalf of the respondent a question was raised before us that Rule 23 of the Minimum Wages Rules does not apply to these workmen after the piece rate scheme was introduced. It is urged that for such worker there is no daily wage, as what the piece worker receives varies from day to day according to his total output. It may even happen, it is suggested, that on a certain day on which output is nil, the piece rate worker will receive nothing. Against this, Mr. Gokhales argument is that average daily wages during the preceding week means average of the total earnings per day during the Preceding week and so there can be no difficulty in ascertaining for every worker his average daily wages during any week. 18. We are not prepared to accept this construction of average daily wages as average earnings per day. The daily wage has in the industrial world a definite significance in contra-distinction to weekly wages or monthly wages. The weekly wages or monthly wages of a person would not as ordinarily understood include the extra earnings of the workmen by working overtime. So also, in our opinion; the term daily wages as ordinarily understood does not include over-time earnings. If it does not include over-time earnings, can it reasonably be said that it includes the high additional earnings that a worker may receive by increasing his output above the minimum fixed? We do not think that to be a reasonable interpretation of the words "daily wages". At the same time, we see no reason why the guaranteed minimum fixed for each workman per day should not be considered his daily wages. The piece rate system introduced for these workmen has fixed such a minimum. Indeed, the fixation of such a minimum wage for a piece rate system makes, it may be said, the piece rate a time rate-cum-piece rate in which the guaranteed minimum is the time rate daily wage and the extra earnings are piece rates. The argument that Rule 23 does not apply to this workmen after the introduction of the piece rate scheme must therefore be rejected. 19. its regards this period also (that is, the period from March 3, 1956 onwards) Mr. Desai contended that there has been constructive payment of the workers as the guaranteed minimum was arrived at by dividing the monthly wage by 26. For the reasons for which this argument was rejected in respect of the period October, 1953 to March 2, 1956, we reject this plea of constructive payment. 20. We are therefore of opinion that the workers of categories A and B are entitled to arrears of wages for the Sundays from March 3, 1956 on the basis that the guaranteed minimum wage was the daily wage. 21. As has already been mentioned, Rule 23 was amended in July 1960, i.e., long after the Tribunal gave the award under appeal. We express no opinion as to what the position in law is, after this amendment of Rule 23.
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principle laid down in section 13 of the Minimum Wages Act that the Government may provide for a day of rest for every period of 7 days even though in framing the Minimum Wages (Central) Rules 1960 which covers many other matters other than the matters mentioned in section 13) no reference has been made to section 13 at allIt seems to us unreasonable to impute the rule-making authority an intention that while if the weekly rest is given "on the said day" that is, Sunday the workmen shall receive payment, he shall receive no payment if and when the employer takes advantage of the provisions that no workman may be required or allowed to work on Sunday when he has or will have a holiday for the whole day on one of the five days immediately before or after the said day."For, if that be permitted, the employer would always give the weekly holiday on one of the 5 days immediately before or after the Sunday and thus avoid payment for the rest day. It seems clear to us therefore that in using the words "for which" after the words the said day" the rule-making authority did not intend to confine the word "which to this "said day" but intended to relate this "which" to any of the days on which rest is given. In other words, "for which" was used as short for "and on such holiday whether on the said day or not". We do not think the rules of grammar stand in the way of this interpretationThat will however be to re-write the sentence in a manner for which we can find no justification. It is proper to remember also that this interpretation will have the peculiar consequence that if the rest day is given on first day of the week no payment will have to be made, but if it is given on some other day payment will have to be made. It will be unreasonable to ascribe such an intention to the legislature11. Reading the operative portion of this rule with the proviso that the weekly holiday may be substituted by another day it appears to us clear that the rule making authority did not draw any distinction between the holiday on the first day of the week or the holiday on one of the five days immediately before or after the said day. It was this weekly holiday-whether given on the 1st day of the week or whether on one of the five days immediately before or after the said day-that under the proviso could be substituted by another day. The scheme clearly is for one holiday, generally, once in a week and it is for this one holiday that payment is provided. In our opinion, the view taken by the Allahabad High Court is correct13. On a proper construction of the rule it must, in our opinion, be held that the workmen of categories A and B were entitled to receive payment "equal to the average wages during the preceding week" in respect of the period October 1953 to March 2, 1956The fallacy in this argument is that it ignores the essential fact that once the daily wage is fixed at a certain figure it no longer retains its character of being 1/26th of the monthly wage. However arrived at, the daily wage is a daily wage and it is wrong to regard it as a certain fraction of the monthly wage. When the Central Government in making these Minimum Wages Rules made this provision for payment on a holiday it clearly intended that something in addition to what was being actually received for the six days of the week should be paid. This cannot be defeated by a statement that though in form six days wages were being paid, in fact and in substance, seven days wages were being paid. By no stretch of imagination can payment for six days be equated to payment for seven days15. We have therefore come to the conclusion that the workmen of the A and B categories are entitled to arrears of wages in respect of Sundays during the period October 1953 to March 2, 195618. We are not prepared to accept this construction of average daily wages as average earnings per day. The daily wage has in the industrial world a definite significance in contra-distinction to weekly wages or monthly wages. The weekly wages or monthly wages of a person would not as ordinarily understood include the extra earnings of the workmen by working overtime. So also, in our opinion; the term daily wages as ordinarily understood does not include over-time earningsWe do not think that to be a reasonable interpretation of the words "daily wages". At the same time, we see no reason why the guaranteed minimum fixed for each workman per day should not be considered his daily wages. The piece rate system introduced for these workmen has fixed such a minimum. Indeed, the fixation of such a minimum wage for a piece rate system makes, it may be said, the piece rate a time rate-cum-piece rate in which the guaranteed minimum is the time rate daily wage and the extra earnings are piece rates. The argument that Rule 23 does not apply to this workmen after the introduction of the piece rate scheme must therefore be rejectedFor the reasons for which this argument was rejected in respect of the period October, 1953 to March 2, 1956, we reject this plea of constructive payment20. We are therefore of opinion that the workers of categories A and B are entitled to arrears of wages for the Sundays from March 3, 1956 on the basis that the guaranteed minimum wage was the daily wage21. As has already been mentioned, Rule 23 was amended in July 1960, i.e., long after the Tribunal gave the award under appeal. We express no opinion as to what the position in law is, after this amendment of Rule 23.
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State Of Mysore & Anr Vs. P. Narasing Rao | mind, will generally be found, in the business of every profession, superior to men who have at eighteen or nineteen devoted themselves to the special studies of their calling. Indeed, early superiority in literature and science generally indicates the existence of some qualities which are securities against vice-industry, self-denial, a taste for pleasures not sensual, a laudable desire of honourable distinction, a still more laudable desire to obtain the approbation of friends and relations. We, therefore, think that the intellectual test about to be established will be found in practice to be also the best moral test that can be devised." (Hansard, Series 3, CXXVIII, 754, 755).In our opinion, therefore, higher educational qualifications such as success in the S.S.L.C. examination are relevant considerations for fixing a higher pay scale for tracers who have passed the S. S. L. C. examination and the classification of two grades of tracers in the new Mysore State, one for matriculate tracers with a higher pay scale and the other for non-matriculate tracers with a lower pay scale is not violative of Arts. 14 or 16 of the Constitution. 5. We proceed to consider the next question raised on behalf of the respondent viz., that the condition of service of the respondent has been adversely affected by the creation of two new pay scales and that there was a violation of the provisions of Section 115 of the States Reorganisation Act, 1956 (Act No. 37 of 1956) which states :"115. Provisions relating to other services -(l) Every person who immediately before the appointed day is serving in connection with the affairs of the Union under the administrative control of the Lieutenant-Governor or Chief Commissioner in any of the existing State of Ajmer, Bhopal, Coorg, Kutch and Vindhya Pradesh, or is serving in connection with the affairs of any of the existing States of Mysore, Punjab, Patiala and East Punjab States Union and Saurashtra shall, as from that day, be deemed to have been allotted to serve in connection with the affairs of the successor State to that existing State. (2) Every person who immediately before the appointed day is serving in connection with the affairs of an existing State part of whose territories is transferred to another State by the provisions of Part II shall, as from that day, provisionally continue to serve in connection with the affairs of the principal successor State to that existing State unless he is required by general or special order of the Central Government to serve provisionally in connection with the affairs of any other successor State. (3) As soon as may be, after the appointed day, the Central Government shall, by general or special order, determine the successor State to which every person referred to in sub-section (2) shall be finally allotted for service and the date with effect from which such allotment shall take effect or be deemed to have taken effect. (4) Every person who is finally allotted under the provisions of sub-section (3) to a successor State shall, if he is not already serving therein be made available for serving in that successor State from such date as may be agreed upon between the Governments concerned, and in default of such agreement, as may be determined by the Central Government. ....................................................................................... (7) Nothing in this Section shall be deemed to affect after the appointed day the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to the determination of the conditions of service of persons serving in connection with the affairs of the Union or any State: Provided that the conditions of service applicable immediately before the appointed day to the case of any person referred to in sub-section (1) or sub-section (2) shall not be varied to his disadvantage except with the previous approval of the Central Government." It was stated that in the erstwhile Hyderabad State the respondent was kept in one grade along with matriculate tracers and there has been a violation of the proviso to Sec. 115(7) of the States Reorganisation Act, 1956, because in the new Mysore State the respondent has been made to work in a separate grade of non-matriculate tracers. We do not think there is any substance in this contention. We do not propose, in this case, to consider what is the full scope and meaning of the phrase "Conditions of service" occurring in the proviso to Section 115 of the States Reorganisation Act. It is sufficient for us to say that, in the present case, there is no violation of the proviso and the respondent is not right in contending that his condition of service is adversely affected because he is made to work in the grade of non-matriculate tracers in the new Mysore State. It was alleged by the respondent that according to Hyderabad rules 20 per cent of the vacancies of Sub-Overseers were to be from the grade of tracers and for those who were not promoted there was another grade of Rs. 90 -120 and if the order of the Superintending Engineer dated March 19, 1958 was to stand, the respondents chance of promotion would be affected. In their counter-affidavit the appellants have said that 10 per cent of the tracers in the new State of Mysore are entitled to be promoted to the grade of Assistant Draftsmen in the scale of Rs. 110-220. The basis of promotion to the higher grade was the inter-State seniority list prepared under the provisions of the States Reorganisation Act. It was stated that the seniority of the respondent was not affected and he had not been deprived of any accrued benefits. The basis of promotion to the higher grades was selection based on meri-cum-seniority. In other words, both matriculates and non-matriculate tracers were eligible for promotion on the basis of the inter-State seniority list prepared for this Department. In our opinion, Counsel on behalf of the respondent is unable to make good his submission on this aspect of the case. | 1[ds]It was stated that in the erstwhile Hyderabad State the respondent was kept in one grade along with matriculate tracers and there has been a violation of the proviso to Sec. 115(7) ofthe States Reorganisation Act,, because in the new Mysore State the respondent has been made to work in a separate grade of non-matriculate tracers. We do not think there is any substance in this contention. We do not propose, in this case, to consider what is the full scope and meaning of the phrase "Conditions of service" occurring in the proviso to Section 115 of the States Reorganisation Act. It is sufficient for us to say that, in the present case, there is no violation of the proviso and the respondent is not right in contending that his condition of service is adversely affected because he is made to work in the grade of non-matriculate tracers in the new Mysore State. It was alleged by the respondent that according to Hyderabad rules 20 per cent of the vacancies of Sub-Overseers were to be from the grade of tracers and for those who were not promoted there was another grade of Rs. 90 -120 and if the order of the Superintending Engineer dated March 19, 1958 was to stand, the respondents chance of promotion would be affected. In their counter-affidavit the appellants have said that 10 per cent of the tracers in the new State of Mysore are entitled to be promoted to the grade of Assistant Draftsmen in the scale of Rs. 110-220. The basis of promotion to the higher grade was the inter-State seniority list prepared under the provisions of the States Reorganisation Act. It was stated that the seniority of the respondent was not affected and he had not been deprived of any accrued benefits. The basis of promotion to the higher grades was selection based on meri-cum-seniority. In other words, both matriculates and non-matriculate tracers were eligible for promotion on the basis of the inter-State seniority list prepared for this Department. In our opinion, Counsel on behalf of the respondent is unable to make good his submission on this aspect of the case4. The relevant law on the subject is well settled. Under Article 16 of the Constitution, there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State or to promotion from one office to a higher office thereunder. Article 16 of the Constitution is only an incident of the application of the concept of equality enshrined in Article 14 thereof. It gives effect to the doctrine of equality in the matter of appointment and promotion. It follows that there can be a reasonable classification of the employees for the purpose of appointment or promotion. The concept of equality in. the matter of promotion can be predicated only when the promotees are drawn from the same source. | 1 | 3,149 | 525 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
mind, will generally be found, in the business of every profession, superior to men who have at eighteen or nineteen devoted themselves to the special studies of their calling. Indeed, early superiority in literature and science generally indicates the existence of some qualities which are securities against vice-industry, self-denial, a taste for pleasures not sensual, a laudable desire of honourable distinction, a still more laudable desire to obtain the approbation of friends and relations. We, therefore, think that the intellectual test about to be established will be found in practice to be also the best moral test that can be devised." (Hansard, Series 3, CXXVIII, 754, 755).In our opinion, therefore, higher educational qualifications such as success in the S.S.L.C. examination are relevant considerations for fixing a higher pay scale for tracers who have passed the S. S. L. C. examination and the classification of two grades of tracers in the new Mysore State, one for matriculate tracers with a higher pay scale and the other for non-matriculate tracers with a lower pay scale is not violative of Arts. 14 or 16 of the Constitution. 5. We proceed to consider the next question raised on behalf of the respondent viz., that the condition of service of the respondent has been adversely affected by the creation of two new pay scales and that there was a violation of the provisions of Section 115 of the States Reorganisation Act, 1956 (Act No. 37 of 1956) which states :"115. Provisions relating to other services -(l) Every person who immediately before the appointed day is serving in connection with the affairs of the Union under the administrative control of the Lieutenant-Governor or Chief Commissioner in any of the existing State of Ajmer, Bhopal, Coorg, Kutch and Vindhya Pradesh, or is serving in connection with the affairs of any of the existing States of Mysore, Punjab, Patiala and East Punjab States Union and Saurashtra shall, as from that day, be deemed to have been allotted to serve in connection with the affairs of the successor State to that existing State. (2) Every person who immediately before the appointed day is serving in connection with the affairs of an existing State part of whose territories is transferred to another State by the provisions of Part II shall, as from that day, provisionally continue to serve in connection with the affairs of the principal successor State to that existing State unless he is required by general or special order of the Central Government to serve provisionally in connection with the affairs of any other successor State. (3) As soon as may be, after the appointed day, the Central Government shall, by general or special order, determine the successor State to which every person referred to in sub-section (2) shall be finally allotted for service and the date with effect from which such allotment shall take effect or be deemed to have taken effect. (4) Every person who is finally allotted under the provisions of sub-section (3) to a successor State shall, if he is not already serving therein be made available for serving in that successor State from such date as may be agreed upon between the Governments concerned, and in default of such agreement, as may be determined by the Central Government. ....................................................................................... (7) Nothing in this Section shall be deemed to affect after the appointed day the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to the determination of the conditions of service of persons serving in connection with the affairs of the Union or any State: Provided that the conditions of service applicable immediately before the appointed day to the case of any person referred to in sub-section (1) or sub-section (2) shall not be varied to his disadvantage except with the previous approval of the Central Government." It was stated that in the erstwhile Hyderabad State the respondent was kept in one grade along with matriculate tracers and there has been a violation of the proviso to Sec. 115(7) of the States Reorganisation Act, 1956, because in the new Mysore State the respondent has been made to work in a separate grade of non-matriculate tracers. We do not think there is any substance in this contention. We do not propose, in this case, to consider what is the full scope and meaning of the phrase "Conditions of service" occurring in the proviso to Section 115 of the States Reorganisation Act. It is sufficient for us to say that, in the present case, there is no violation of the proviso and the respondent is not right in contending that his condition of service is adversely affected because he is made to work in the grade of non-matriculate tracers in the new Mysore State. It was alleged by the respondent that according to Hyderabad rules 20 per cent of the vacancies of Sub-Overseers were to be from the grade of tracers and for those who were not promoted there was another grade of Rs. 90 -120 and if the order of the Superintending Engineer dated March 19, 1958 was to stand, the respondents chance of promotion would be affected. In their counter-affidavit the appellants have said that 10 per cent of the tracers in the new State of Mysore are entitled to be promoted to the grade of Assistant Draftsmen in the scale of Rs. 110-220. The basis of promotion to the higher grade was the inter-State seniority list prepared under the provisions of the States Reorganisation Act. It was stated that the seniority of the respondent was not affected and he had not been deprived of any accrued benefits. The basis of promotion to the higher grades was selection based on meri-cum-seniority. In other words, both matriculates and non-matriculate tracers were eligible for promotion on the basis of the inter-State seniority list prepared for this Department. In our opinion, Counsel on behalf of the respondent is unable to make good his submission on this aspect of the case.
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### Explanation:
It was stated that in the erstwhile Hyderabad State the respondent was kept in one grade along with matriculate tracers and there has been a violation of the proviso to Sec. 115(7) ofthe States Reorganisation Act,, because in the new Mysore State the respondent has been made to work in a separate grade of non-matriculate tracers. We do not think there is any substance in this contention. We do not propose, in this case, to consider what is the full scope and meaning of the phrase "Conditions of service" occurring in the proviso to Section 115 of the States Reorganisation Act. It is sufficient for us to say that, in the present case, there is no violation of the proviso and the respondent is not right in contending that his condition of service is adversely affected because he is made to work in the grade of non-matriculate tracers in the new Mysore State. It was alleged by the respondent that according to Hyderabad rules 20 per cent of the vacancies of Sub-Overseers were to be from the grade of tracers and for those who were not promoted there was another grade of Rs. 90 -120 and if the order of the Superintending Engineer dated March 19, 1958 was to stand, the respondents chance of promotion would be affected. In their counter-affidavit the appellants have said that 10 per cent of the tracers in the new State of Mysore are entitled to be promoted to the grade of Assistant Draftsmen in the scale of Rs. 110-220. The basis of promotion to the higher grade was the inter-State seniority list prepared under the provisions of the States Reorganisation Act. It was stated that the seniority of the respondent was not affected and he had not been deprived of any accrued benefits. The basis of promotion to the higher grades was selection based on meri-cum-seniority. In other words, both matriculates and non-matriculate tracers were eligible for promotion on the basis of the inter-State seniority list prepared for this Department. In our opinion, Counsel on behalf of the respondent is unable to make good his submission on this aspect of the case4. The relevant law on the subject is well settled. Under Article 16 of the Constitution, there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State or to promotion from one office to a higher office thereunder. Article 16 of the Constitution is only an incident of the application of the concept of equality enshrined in Article 14 thereof. It gives effect to the doctrine of equality in the matter of appointment and promotion. It follows that there can be a reasonable classification of the employees for the purpose of appointment or promotion. The concept of equality in. the matter of promotion can be predicated only when the promotees are drawn from the same source.
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Central Bureau Of Investigation Vs. M. Sivamani | that court, or of some other court to which that court is subordinate.” (Emphasis added) 8. Contention raised on behalf of the appellant-CBI is that the object and purpose of the bar created under the law against taking cognizance in respect of the specified offences is to control frivolous or vexatious proceedings by private parties. In State of U.P. versus Mata Bhikh (1994) 4SCC 95)it was observed : “6. The object of this section is to protect persons from being vexatiously prosecuted upon inadequate materials or insufficient grounds by person actuated by malice or ill-will or frivolity of disposition at the instance of private individuals for the offences specified therein. The provisions of this section, no doubt, are mandatory and the Court has no jurisdiction to take cognizance of any of the offences mentioned therein unless there is a complaint in writing of ‘the public servant concerned’ as required by the section without which the trial under Section 188 of the Indian Penal Code becomes void ab initio. See Daulat Ram v. State of Punjab [AIR 1962 SC1206]. … … …” 9. It is submitted that the scheme of the provision shows that the specified offences in respect of whom the bar is created have direct impact on administration of public justice. As against a private party, it is only the public servant or his superior to whom he is administratively subordinate is permitted to file a complaint. Reliance has been placed on the judgment of this Court in Iqbal Singh Marwah versus Meenakshi Marwah (2005) 4 SCC 370 )laying down that interpretation of the provision which leads to a situation where victim of crime is rendered remediless has to be discarded and interpretation should advance the object (Para 23 & 25). The Constitution Bench of this Court interpreted the bar under Section 195(1)(b)(ii) to be limited to a document where forgery was committed after it was produced or given in evidence before the court. It was held that if forgery was committed before the document was produced before the court, the bar under the said provision was not applicable. In Perumal versus Janakai (2014) 5 SCC 377 )it was held that bar under the provision will not apply if a High Court, as a superior court, directs a complaint to be filed in respect of offence covered by Section 195(1)(b)(i). It was, thus, submitted that in the present case protection under Section 195(1)(a)(i) cannot apply as it was not at the instance of any private party but at the instance of the High Court that CBI investigation was directed to be conducted. “Other public servant to whom he is administratively subordinate” should not exclude the High Court.10. Learned counsel for the respondent however supported the view taken by the High Court. It was submitted that there was no reason to ignore the statutory bar against taking cognizance of an offence under Section 182 except on the complaint in writing of the public servant concerned or who is administrative superior to whom which expression could not include the High Court. It was submitted that though on failure to perform a public duty, the public servant or his superior may be directed by the High Court by a mandamus to file a complaint, direction of the High Court to conduct investigation was not enough to exclude the statutory bar against taking of cognizance. Reliance has been placed on M.S. Ahlawat versus State of Haryana (2000) 1 SCC 278 )laying down as follows: “5. Chapter XI IPC deals with “false evidence and offences against public justice” and Section 193 occurring therein provides for punishment for giving or fabricating false evidence in a judicial proceeding. Section 195 of the Criminal Procedure Code (CrPC) provides that where an act amounts to an offence of contempt of the lawful authority of public servants or to an offence against public justice such as giving false evidence under Section 193 IPC etc. or to an offence relating to documents actually used in a court, private prosecutions are barred absolutely and only the court in relation to which the offence was committed may initiate proceedings. Provisions of Section 195 CrPC are mandatory and no court has jurisdiction to take cognizance of any of the offences mentioned therein unless there is a complaint in writing as required under that section. It is settled law that every incorrect or false statement does not make it incumbent upon the court to order prosecution, but (sic) to exercise judicial discretion to order prosecution only in the larger interest of the administration of justice.” 11. We have considered the rival submissions. We find merit in the contention raised on behalf of the appellant. While the bar against cognizance of a specified offence is mandatory, the same has to be understood in the context of the purpose for which such a bar is created. The bar is not intended to take away remedy against a crime but only to protect an innocent person against false or frivolous proceedings by a private person. The expression “the public servant or his administrative superior” cannot exclude the High Court. It is clearly implicit in the direction of the High Court quoted above that it was necessary in the interest of justice to take cognizance of the offence in question. Direction of the High Court is at par with the direction of an administrative superior public servant to file a complaint in writing in terms of the statutory requirement. The protection intended by the Section against a private person filing a frivolous complaint is taken care of when the High Court finds that the matter was required to be gone into in public interest. Such direction cannot be rendered futile by invoking Section 195 to such a situation. Once the High Court directs investigation into a specified offence mentioned in Section 195, bar under Section 195(1)(a) cannot be pressed into service. The view taken by the High Court will frustrate the object of law and cannot be sustained. | 1[ds]11. We have considered the rival submissions. We find merit in the contention raised on behalf of the appellant. While the bar against cognizance of a specified offence is mandatory, the same has to be understood in the context of the purpose for which such a bar is created. The bar is not intended to take away remedy against a crime but only to protect an innocent person against false or frivolous proceedings by a private person. The expressionpublic servant or his administrativecannot exclude the High Court. It is clearly implicit in the direction of the High Court quoted above that it was necessary in the interest of justice to take cognizance of the offence in question. Direction of the High Court is at par with the direction of an administrative superior public servant to file a complaint in writing in terms of the statutory requirement. The protection intended by the Section against a private person filing a frivolous complaint is taken care of when the High Court finds that the matter was required to be gone into in public interest. Such direction cannot be rendered futile by invoking Section 195 to such a situation. Once the High Court directs investigation into a specified offence mentioned in Section 195, bar under Section 195(1)(a) cannot be pressed into service. The view taken by the High Court will frustrate the object of law and cannot be sustained. | 1 | 2,563 | 262 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
### Input:
that court, or of some other court to which that court is subordinate.” (Emphasis added) 8. Contention raised on behalf of the appellant-CBI is that the object and purpose of the bar created under the law against taking cognizance in respect of the specified offences is to control frivolous or vexatious proceedings by private parties. In State of U.P. versus Mata Bhikh (1994) 4SCC 95)it was observed : “6. The object of this section is to protect persons from being vexatiously prosecuted upon inadequate materials or insufficient grounds by person actuated by malice or ill-will or frivolity of disposition at the instance of private individuals for the offences specified therein. The provisions of this section, no doubt, are mandatory and the Court has no jurisdiction to take cognizance of any of the offences mentioned therein unless there is a complaint in writing of ‘the public servant concerned’ as required by the section without which the trial under Section 188 of the Indian Penal Code becomes void ab initio. See Daulat Ram v. State of Punjab [AIR 1962 SC1206]. … … …” 9. It is submitted that the scheme of the provision shows that the specified offences in respect of whom the bar is created have direct impact on administration of public justice. As against a private party, it is only the public servant or his superior to whom he is administratively subordinate is permitted to file a complaint. Reliance has been placed on the judgment of this Court in Iqbal Singh Marwah versus Meenakshi Marwah (2005) 4 SCC 370 )laying down that interpretation of the provision which leads to a situation where victim of crime is rendered remediless has to be discarded and interpretation should advance the object (Para 23 & 25). The Constitution Bench of this Court interpreted the bar under Section 195(1)(b)(ii) to be limited to a document where forgery was committed after it was produced or given in evidence before the court. It was held that if forgery was committed before the document was produced before the court, the bar under the said provision was not applicable. In Perumal versus Janakai (2014) 5 SCC 377 )it was held that bar under the provision will not apply if a High Court, as a superior court, directs a complaint to be filed in respect of offence covered by Section 195(1)(b)(i). It was, thus, submitted that in the present case protection under Section 195(1)(a)(i) cannot apply as it was not at the instance of any private party but at the instance of the High Court that CBI investigation was directed to be conducted. “Other public servant to whom he is administratively subordinate” should not exclude the High Court.10. Learned counsel for the respondent however supported the view taken by the High Court. It was submitted that there was no reason to ignore the statutory bar against taking cognizance of an offence under Section 182 except on the complaint in writing of the public servant concerned or who is administrative superior to whom which expression could not include the High Court. It was submitted that though on failure to perform a public duty, the public servant or his superior may be directed by the High Court by a mandamus to file a complaint, direction of the High Court to conduct investigation was not enough to exclude the statutory bar against taking of cognizance. Reliance has been placed on M.S. Ahlawat versus State of Haryana (2000) 1 SCC 278 )laying down as follows: “5. Chapter XI IPC deals with “false evidence and offences against public justice” and Section 193 occurring therein provides for punishment for giving or fabricating false evidence in a judicial proceeding. Section 195 of the Criminal Procedure Code (CrPC) provides that where an act amounts to an offence of contempt of the lawful authority of public servants or to an offence against public justice such as giving false evidence under Section 193 IPC etc. or to an offence relating to documents actually used in a court, private prosecutions are barred absolutely and only the court in relation to which the offence was committed may initiate proceedings. Provisions of Section 195 CrPC are mandatory and no court has jurisdiction to take cognizance of any of the offences mentioned therein unless there is a complaint in writing as required under that section. It is settled law that every incorrect or false statement does not make it incumbent upon the court to order prosecution, but (sic) to exercise judicial discretion to order prosecution only in the larger interest of the administration of justice.” 11. We have considered the rival submissions. We find merit in the contention raised on behalf of the appellant. While the bar against cognizance of a specified offence is mandatory, the same has to be understood in the context of the purpose for which such a bar is created. The bar is not intended to take away remedy against a crime but only to protect an innocent person against false or frivolous proceedings by a private person. The expression “the public servant or his administrative superior” cannot exclude the High Court. It is clearly implicit in the direction of the High Court quoted above that it was necessary in the interest of justice to take cognizance of the offence in question. Direction of the High Court is at par with the direction of an administrative superior public servant to file a complaint in writing in terms of the statutory requirement. The protection intended by the Section against a private person filing a frivolous complaint is taken care of when the High Court finds that the matter was required to be gone into in public interest. Such direction cannot be rendered futile by invoking Section 195 to such a situation. Once the High Court directs investigation into a specified offence mentioned in Section 195, bar under Section 195(1)(a) cannot be pressed into service. The view taken by the High Court will frustrate the object of law and cannot be sustained.
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1
### Explanation:
11. We have considered the rival submissions. We find merit in the contention raised on behalf of the appellant. While the bar against cognizance of a specified offence is mandatory, the same has to be understood in the context of the purpose for which such a bar is created. The bar is not intended to take away remedy against a crime but only to protect an innocent person against false or frivolous proceedings by a private person. The expressionpublic servant or his administrativecannot exclude the High Court. It is clearly implicit in the direction of the High Court quoted above that it was necessary in the interest of justice to take cognizance of the offence in question. Direction of the High Court is at par with the direction of an administrative superior public servant to file a complaint in writing in terms of the statutory requirement. The protection intended by the Section against a private person filing a frivolous complaint is taken care of when the High Court finds that the matter was required to be gone into in public interest. Such direction cannot be rendered futile by invoking Section 195 to such a situation. Once the High Court directs investigation into a specified offence mentioned in Section 195, bar under Section 195(1)(a) cannot be pressed into service. The view taken by the High Court will frustrate the object of law and cannot be sustained.
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Commissioner of Income Tax, Madras Vs. V. MR. P. Firm, Muar | fifty dollars in amount, which- (i) was not due at the time of such payment; or (ii) if due, was not demanded by the creditor or by his agent on his behalf and was not payable within the occupation period under a time essence contract; (iii) if due and demanded as aforesaid was not paid within three months of demand or within such extended period as was mutually agreed between the creditor or his agent and the debtor or his agent; or (c) ......................such payment shall be revalued in accordance with the scale set out in the Schedule to this Ordinance and shall be a valid discharge of such debt only to the extent of such revaluation. THE SCHEDULE 1. (a) Where any such payment as is mentioned in sub-section (2) of S. 4 of this Ordinance was made in occupation currency during any month or on any day mentioned in the first column of the scale set out in paragraph 3 of this Schedule, such payment shall be revalued by taking the number of dollors in occupation currency set out opposite such month or day in the second column of the said scale as equivalent to one hundred dollors Malayan currency, and so in proportion for any portion if such payment amounting, when revalued, to less than one hundred dollars Malayan currency (b) Where any such payment was made in occupation currency on or after the thirteenth day of August, 1945, the value of such payment shall be taken to be nil. 2. (a)-- In the case of an unsatisfied occupation debt or part thereof which falls to be revalued under Section 6 of the Ordinance such debt or part thereof shall be revalued at the appropriate date as provided in the said section or sub-section by taking the number of dollars in occupation currency mentioned opposite such month or day in the second column of scale set out in paragraph 3 of this Schedule as equivalent to one hundred dollars Malayan currency, and so in proportion for any portion of such debt amounting, when revalued, to less than one hundred dollars Malayan currency. (b) When any such debt or part of a debt fell due for payment on or after the thirteenth day of August 1945, its value shall be taken to be nil. 3 Sliding scale of the value of occupation currency 1942-45. 16. We have not allowed the Solicitor General to contend that sub-section(2) of Section 4 of the Ordinance does not apply to the debts in question as throughout the proceedings of this case it was assumed that it applies to the said debts. During the Japanese Occupation both the Japanese currency and the Malayan currency were in vogue. In January 1943 the Japanese currency began to depreciate and by August 13, 1945, it ceased to be of any value. During that process of devaluation debts were paid off and received in Japanese currency which resulted in loss to the creditors. To regulate the relationships between creditors and debtors during that period the said Ordinance was passed by the Malayan Legislature on December 16, 1948. Under the said Ordinance payments in Japanese currency were to be valued and scaled down in accordance with the Schedule appended to the Ordinance. If a debtor was paid his debt in depreciated Japanese currency, he was required to pay over again a certain amount to be ascertained by the application of the provisions of the Schedule. In terms sub-section (2) says that the payment in Japanese currency shall be a valid discharge of such debt only to the extent of such revaluation. When the payments made towards debts were scaled down the debts were revived in regard to the balance of the debt. After the making of the Ordinance, the creditor could enforce his debt to the extent not discharged and the debtor had the obligation to discharge the same. On the express terms of the Ordinance it is impossible to accept the contention that the State provided for compensation for the losses incurred by the assessee. Indeed the State did not pay any compensation at all. The legal relationship of the creditor and debtor was not created by the Ordinance but it was regulated on the basis of the pre-existing relationship. We, therefore, hold, agreeing with the High Court, that under the Ordinance the discharged debts, became enforceable to the extent of the balance of the amount due after the scaling down of the payments. If so, the Income-tax Officer could only impose tax on the income recovered by the assessees thereafter towards their debts if such income was taxable under the provisions of the Act. 17. So too, in regard to the payment made by the assessee towards such debts they could claim relief by way of deductions only if such deductions were permissible under the Act. 18. The High Court held that the assesses who had received repayments would not be liable to tax in respect of amounts they had received towards principal but they would be so liable in respect of moneys which they had received towards interest. It further held that those assessees who had made payments towards the debts would be entitled to deduct from their income and claim exemption from tax only such amounts as they had paid on account of interest but they would not be entitled to deduct any payment made on account of principal. The High Court also gave a direction that in the case of open payments the respective amounts paid towards principal or interest should be ascertained in accordance with the law of appropriation of payments. Neither the learned Solicitor General, who appeared for the Revenue, nor the learned counsel, who appeared for the assessees, questioned the correctness of the said directions if the construction we placed on the Ordinance was correct. The directions given by the High Court will, therefore, stand. In our view, the High Court gave correct answer to the questions referred to it. | 0[ds]11. The first question had not been raised at any stage of the proceedings before the Tribunal and the High Court. Nor does it find a place in the statement of case. We cannot, therefore, allow the learned counsel to raise it for the first time before us12. Nor has the second question been raised in the High Court in the form in which it is presented before usThe doctrine of approbate and reprobate is only a species of estoppel; it applies only to the conduct of parties. As in the case of estoppel it cannot operate against the provisions of a statute. If a particular income is not taxable under the Income-tax Act, it cannot be taxed on the basis of estoppel or any other equitable doctrine. Equity is out of place in tax law; a particular income statute or it is not. If it is not, the Income-tax Officer has no power to impose tax on the said income14. The decision in Amarendra Narayan Roy v. Commissioner of Income-tax, West Bengal, AIR 1954 Cal 271 has no bearing on the question raised before us. There the confessional scheme tempted the assessee to disclose voluntarily all his concealed income and he agreed to pay the proper tax upon it. The agreement there related to the quantification of taxable income but in the present case what is sought to be taxed is not a taxable income. The assessee in such a case can certainly raise the plea that his income is not taxable under the Act. We, therefore, reject this pleaUnder the said Ordinance payments in Japanese currency were to be valued and scaled down in accordance with the Schedule appended to the Ordinance. If a debtor was paid his debt in depreciated Japanese currency, he was required to pay over again a certain amount to be ascertained by the application of the provisions of the Schedule. In terms sub-section (2) says that the payment in Japanese currency shall be a valid discharge of such debt only to the extent of such revaluation. When the payments made towards debts were scaled down the debts were revived in regard to the balance of the debt. After the making of the Ordinance, the creditor could enforce his debt to the extent not discharged and the debtor had the obligation to discharge the same. On the express terms of the Ordinance it is impossible to accept the contention that the State provided for compensation for the losses incurred by the assessee. Indeed the State did not pay any compensation at all. The legal relationship of the creditor and debtor was not created by the Ordinance but it was regulated on the basis of the pre-existing relationship. We, therefore, hold, agreeing with the High Court, that under the Ordinance the discharged debts, became enforceable to the extent of the balance of the amount due after the scaling down of the payments. If so, the Income-tax Officer could only impose tax on the income recovered by the assessees thereafter towards their debts if such income was taxable under the provisions of the Act17. So too, in regard to the payment made by the assessee towards such debts they could claim relief by way of deductions only if such deductions were permissible under the Act18. The High Court held that the assesses who had received repayments would not be liable to tax in respect of amounts they had received towards principal but they would be so liable in respect of moneys which they had received towards interest. It further held that those assessees who had made payments towards the debts would be entitled to deduct from their income and claim exemption from tax only such amounts as they had paid on account of interest but they would not be entitled to deduct any payment made on account of principal. The High Court also gave a direction that in the case of open payments the respective amounts paid towards principal or interest should be ascertained in accordance with the law of appropriation of payments. Neither the learned Solicitor General, who appeared for the Revenue, nor the learned counsel, who appeared for the assessees, questioned the correctness of the said directions if the construction we placed on the Ordinance was correct. The directions given by the High Court will, therefore, stand. In our view, the High Court gave correct answer to the questions referred to it. | 0 | 3,766 | 803 | ### 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:
fifty dollars in amount, which- (i) was not due at the time of such payment; or (ii) if due, was not demanded by the creditor or by his agent on his behalf and was not payable within the occupation period under a time essence contract; (iii) if due and demanded as aforesaid was not paid within three months of demand or within such extended period as was mutually agreed between the creditor or his agent and the debtor or his agent; or (c) ......................such payment shall be revalued in accordance with the scale set out in the Schedule to this Ordinance and shall be a valid discharge of such debt only to the extent of such revaluation. THE SCHEDULE 1. (a) Where any such payment as is mentioned in sub-section (2) of S. 4 of this Ordinance was made in occupation currency during any month or on any day mentioned in the first column of the scale set out in paragraph 3 of this Schedule, such payment shall be revalued by taking the number of dollors in occupation currency set out opposite such month or day in the second column of the said scale as equivalent to one hundred dollors Malayan currency, and so in proportion for any portion if such payment amounting, when revalued, to less than one hundred dollars Malayan currency (b) Where any such payment was made in occupation currency on or after the thirteenth day of August, 1945, the value of such payment shall be taken to be nil. 2. (a)-- In the case of an unsatisfied occupation debt or part thereof which falls to be revalued under Section 6 of the Ordinance such debt or part thereof shall be revalued at the appropriate date as provided in the said section or sub-section by taking the number of dollars in occupation currency mentioned opposite such month or day in the second column of scale set out in paragraph 3 of this Schedule as equivalent to one hundred dollars Malayan currency, and so in proportion for any portion of such debt amounting, when revalued, to less than one hundred dollars Malayan currency. (b) When any such debt or part of a debt fell due for payment on or after the thirteenth day of August 1945, its value shall be taken to be nil. 3 Sliding scale of the value of occupation currency 1942-45. 16. We have not allowed the Solicitor General to contend that sub-section(2) of Section 4 of the Ordinance does not apply to the debts in question as throughout the proceedings of this case it was assumed that it applies to the said debts. During the Japanese Occupation both the Japanese currency and the Malayan currency were in vogue. In January 1943 the Japanese currency began to depreciate and by August 13, 1945, it ceased to be of any value. During that process of devaluation debts were paid off and received in Japanese currency which resulted in loss to the creditors. To regulate the relationships between creditors and debtors during that period the said Ordinance was passed by the Malayan Legislature on December 16, 1948. Under the said Ordinance payments in Japanese currency were to be valued and scaled down in accordance with the Schedule appended to the Ordinance. If a debtor was paid his debt in depreciated Japanese currency, he was required to pay over again a certain amount to be ascertained by the application of the provisions of the Schedule. In terms sub-section (2) says that the payment in Japanese currency shall be a valid discharge of such debt only to the extent of such revaluation. When the payments made towards debts were scaled down the debts were revived in regard to the balance of the debt. After the making of the Ordinance, the creditor could enforce his debt to the extent not discharged and the debtor had the obligation to discharge the same. On the express terms of the Ordinance it is impossible to accept the contention that the State provided for compensation for the losses incurred by the assessee. Indeed the State did not pay any compensation at all. The legal relationship of the creditor and debtor was not created by the Ordinance but it was regulated on the basis of the pre-existing relationship. We, therefore, hold, agreeing with the High Court, that under the Ordinance the discharged debts, became enforceable to the extent of the balance of the amount due after the scaling down of the payments. If so, the Income-tax Officer could only impose tax on the income recovered by the assessees thereafter towards their debts if such income was taxable under the provisions of the Act. 17. So too, in regard to the payment made by the assessee towards such debts they could claim relief by way of deductions only if such deductions were permissible under the Act. 18. The High Court held that the assesses who had received repayments would not be liable to tax in respect of amounts they had received towards principal but they would be so liable in respect of moneys which they had received towards interest. It further held that those assessees who had made payments towards the debts would be entitled to deduct from their income and claim exemption from tax only such amounts as they had paid on account of interest but they would not be entitled to deduct any payment made on account of principal. The High Court also gave a direction that in the case of open payments the respective amounts paid towards principal or interest should be ascertained in accordance with the law of appropriation of payments. Neither the learned Solicitor General, who appeared for the Revenue, nor the learned counsel, who appeared for the assessees, questioned the correctness of the said directions if the construction we placed on the Ordinance was correct. The directions given by the High Court will, therefore, stand. In our view, the High Court gave correct answer to the questions referred to it.
### Response:
0
### Explanation:
11. The first question had not been raised at any stage of the proceedings before the Tribunal and the High Court. Nor does it find a place in the statement of case. We cannot, therefore, allow the learned counsel to raise it for the first time before us12. Nor has the second question been raised in the High Court in the form in which it is presented before usThe doctrine of approbate and reprobate is only a species of estoppel; it applies only to the conduct of parties. As in the case of estoppel it cannot operate against the provisions of a statute. If a particular income is not taxable under the Income-tax Act, it cannot be taxed on the basis of estoppel or any other equitable doctrine. Equity is out of place in tax law; a particular income statute or it is not. If it is not, the Income-tax Officer has no power to impose tax on the said income14. The decision in Amarendra Narayan Roy v. Commissioner of Income-tax, West Bengal, AIR 1954 Cal 271 has no bearing on the question raised before us. There the confessional scheme tempted the assessee to disclose voluntarily all his concealed income and he agreed to pay the proper tax upon it. The agreement there related to the quantification of taxable income but in the present case what is sought to be taxed is not a taxable income. The assessee in such a case can certainly raise the plea that his income is not taxable under the Act. We, therefore, reject this pleaUnder the said Ordinance payments in Japanese currency were to be valued and scaled down in accordance with the Schedule appended to the Ordinance. If a debtor was paid his debt in depreciated Japanese currency, he was required to pay over again a certain amount to be ascertained by the application of the provisions of the Schedule. In terms sub-section (2) says that the payment in Japanese currency shall be a valid discharge of such debt only to the extent of such revaluation. When the payments made towards debts were scaled down the debts were revived in regard to the balance of the debt. After the making of the Ordinance, the creditor could enforce his debt to the extent not discharged and the debtor had the obligation to discharge the same. On the express terms of the Ordinance it is impossible to accept the contention that the State provided for compensation for the losses incurred by the assessee. Indeed the State did not pay any compensation at all. The legal relationship of the creditor and debtor was not created by the Ordinance but it was regulated on the basis of the pre-existing relationship. We, therefore, hold, agreeing with the High Court, that under the Ordinance the discharged debts, became enforceable to the extent of the balance of the amount due after the scaling down of the payments. If so, the Income-tax Officer could only impose tax on the income recovered by the assessees thereafter towards their debts if such income was taxable under the provisions of the Act17. So too, in regard to the payment made by the assessee towards such debts they could claim relief by way of deductions only if such deductions were permissible under the Act18. The High Court held that the assesses who had received repayments would not be liable to tax in respect of amounts they had received towards principal but they would be so liable in respect of moneys which they had received towards interest. It further held that those assessees who had made payments towards the debts would be entitled to deduct from their income and claim exemption from tax only such amounts as they had paid on account of interest but they would not be entitled to deduct any payment made on account of principal. The High Court also gave a direction that in the case of open payments the respective amounts paid towards principal or interest should be ascertained in accordance with the law of appropriation of payments. Neither the learned Solicitor General, who appeared for the Revenue, nor the learned counsel, who appeared for the assessees, questioned the correctness of the said directions if the construction we placed on the Ordinance was correct. The directions given by the High Court will, therefore, stand. In our view, the High Court gave correct answer to the questions referred to it.
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M/S. Prasad Agents Private Limited Vs. Income Tax Officer 3(2)(4) Aayakar Bhavan | added an Explanation to Section 73 to provide that the business of purchase and sale or shares by companies which are not investment or banking companies or companies carrying on business of granting loans or advances will be treated on the same footing as a speculation business."Learned Counsel, however, relies on paragraph 19.2. Paragraph 19.2 reads as under:-"The object of this provision is to curb the device sometimes resorted to by business houses controlling groups of companies to manipulate and reduce the taxable income of companies under their control."It appears from this paragraph in the explanatory note in respect of the amending Act that the argument advanced on behalf of the assessee by their Counsel may merit some consideration. In our opinion, however, a gainful reading of paragraphs 19.1 and 19.2 read with language of the Explanation would not bear out the submission as made on behalf of the Assessee. Para.19.1 as we have noted earlier does not refer to group companies, but refers to companies dealing with shares. It is in that context para.19.2 may be considered to mean that it also includes cases of such group companies. That does not mean that the explanation to Section 73 must be restricted only to group companies and not to other companies who carry on business of sale and purchase of shares either having no controlling interest in other companies or purchasing shares to control other companies. Once the language is clear the Court must give effect to the language for its true interpretation. If the language is in conflict with the Circular then to that extent to ignore the circular. The Circular cannot be read in the manner sought to be argued on behalf of the assessee as that would defeat the very object as set out in the statement of object and reasons to the Taxation Laws (Amendment) Act, 1973. In the light of the above, the Tribunal was right in taking the view it has taken. The first question is accordingly answered against the assessee.7. The learned Counsel then sets out that even if the question (i) is answered in favour of the assessee nevertheless the explanation specifically refers to purchase and sale of shares of any other companies and does not refer to losses suffered on account of book valuation. Our attention is invited to Section 43(5) which reads as under;-"speculative transaction" means transaction in which a contract for the purchase or sale of any commodity, including stocks and shares, is periodically or ultimately settled otherwise than by the actual delivery or transfer of the commodity or scrips."Our attention is also invited then to Section 28 Explanation 2 which reads as under:-"Where speculative transactions carried on by an assessee are of such a nature as to constitute a business, the business (hereinafter referred to as "speculation business") shall be deemed to be distinct and separate from any other business."Explanation 2, to Section 28, therefore, treats the business in respect of speculative transactions to be distinct and separate from any other business. Section 43(5) holds those transactions to be speculation respect of which a settlement is otherwise periodically or settled other than by delivery or transfer of the commodity or scrips. Reading these provisions learned Counsel submits that the speculative value would not fall within the explanation.8. Our attention is first invited to the judgment of the Supreme Court in Commissioner of Income Tax, West Bengal vs. Hind Construction Ltd., (83 ITR 211) to contend that if a person revalues his goods and shows higher value for them in his books he cannot be considered having sold his goods and made profits therein. The issue before the Supreme Court was in respect of sale of machinery. The Court there held that there was no sale. That judgment, therefore, would really of no much assistance.9. We next consider the judgment of the Supreme Court in Chainrup Sampatram vs. Commissioner of Income-tax, West Bengal, 24 ITR 481 , where the Supreme Court observed that the valuation of unsold stock at the close of an accounting period is a necessary part of the process of determining the trading results of that period and can in no sense be regarded as the source of such profits. The Supreme Court in Sanjeev Woolen Mills vs. Commissioner of Income Tax, (279 ITR 434 (S.C.) considered the judgment in Chainrup Sampatram (supra) for the purpose of considering the rational behind valuation of the stock at market whichever is earlier.10. On the other hand on behalf of the Revenue the learned Counsel has drawn our attention to the finding recorded by the Tribunal as also to the observations in Sanjeev Woolen Mills (supra) to contend that there is nothing inconsistent in the said judgment of the view taken by the Tribunal.11. In our opinion there can be no difference between the losses suffered in the course of trading by delivery and losses in terms of the book value. As long as the assessee is carrying on business of trading by way of purchase and sale of shares even if in respect of any financial year, there are no transaction and yet the company has stock in trade of shares, the book value will have to be considered for the purpose of considering the profit and loss in case of speculative business. There can be no doubt that the explanation to Section 73 cannot be read to mean only when there is a purchase and sale of shares in the course of the financial year. The explanation will cover both shares which are stock in trade and shares which are traded in the course of the financial year for the purpose of considering the loss and profit for that year. The Tribunal, in our opinion, has correctly answered the issue by holding that the loss of profit on account of valuation amounts to revenue losses or revenue receipt. The second question, therefore, also will have to be answered against the assessee and in favour of the Revenue. | 0[ds]6. A perusal of the explanation would, therefore, make it clear that where any part of the business of the company consists in the purchase and sale of shares of other companies, for the purpose of Section 73 such company shall be deemed to be carrying on speculation business. On consideration of the said provision considering the language of the Explanation there is atleast no scope for ambiguity. The language of the Explanation is clear, in as much as a company carrying on business of purchase and sale of shares shall be deemed to be carrying on speculation business.Our attention was invited to Circular No.204. The Circular contains the explanatory notes to Taxation Laws (Amendment) Act, 1975. Para.19.1 deals with the treatment of losses in speculation business. In so far as this paragraph is concerned there is no dispute in respect of its language wherein it uses the followingamending Act has added an Explanation to Section 73 to provide that the business of purchase and sale or shares by companies which are not investment or banking companies or companies carrying on business of granting loans or advances will be treated on the same footing as a speculation business."Learned Counsel, however, relies on paragraph 19.2. Paragraph 19.2 reads asobject of this provision is to curb the device sometimes resorted to by business houses controlling groups of companies to manipulate and reduce the taxable income of companies under their control."It appears from this paragraph in the explanatory note in respect of the amending Act that the argument advanced on behalf of the assessee by their Counsel may merit some consideration. In our opinion, however, a gainful reading of paragraphs 19.1 and 19.2 read with language of the Explanation would not bear out the submission as made on behalf of the Assessee. Para.19.1 as we have noted earlier does not refer to group companies, but refers to companies dealing with shares. It is in that context para.19.2 may be considered to mean that it also includes cases of such group companies. That does not mean that the explanation to Section 73 must be restricted only to group companies and not to other companies who carry on business of sale and purchase of shares either having no controlling interest in other companies or purchasing shares to control other companies. Once the language is clear the Court must give effect to the language for its true interpretation. If the language is in conflict with the Circular then to that extent to ignore the circular. The Circular cannot be read in the manner sought to be argued on behalf of the assessee as that would defeat the very object as set out in the statement of object and reasons to the Taxation Laws (Amendment) Act, 1973. In the light of the above, the Tribunal was right in taking the view it has taken. The first question is accordingly answered against the assessee.Our attention is first invited to the judgment of the Supreme Court in Commissioner of Income Tax, West Bengal vs. Hind Construction Ltd., (83 ITR 211) to contend that if a person revalues his goods and shows higher value for them in his books he cannot be considered having sold his goods and made profits therein. The issue before the Supreme Court was in respect of sale of machinery. The Court there held that there was no sale. That judgment, therefore, would really of no much assistance.9. We next consider the judgment of the Supreme Court in Chainrup Sampatram vs. Commissioner ofWest Bengal, 24 ITR 481 , where the Supreme Court observed that the valuation of unsold stock at the close of an accounting period is a necessary part of the process of determining the trading results of that period and can in no sense be regarded as the source of such profits. The Supreme Court in Sanjeev Woolen Mills vs. Commissioner of Income Tax, (279 ITR 434 (S.C.) considered the judgment in Chainrup Sampatram (supra) for the purpose of considering the rational behind valuation of the stock at market whichever is earlier.10. On the other hand on behalf of the Revenue the learned Counsel has drawn our attention to the finding recorded by the Tribunal as also to the observations in Sanjeev Woolen Mills (supra) to contend that there is nothing inconsistent in the said judgment of the view taken by the Tribunal.11. In our opinion there can be no difference between the losses suffered in the course of trading by delivery and losses in terms of the book value. As long as the assessee is carrying on business of trading by way of purchase and sale of shares even if in respect of any financial year, there are no transaction and yet the company has stock in trade of shares, the book value will have to be considered for the purpose of considering the profit and loss in case of speculative business. There can be no doubt that the explanation to Section 73 cannot be read to mean only when there is a purchase and sale of shares in the course of the financial year. The explanation will cover both shares which are stock in trade and shares which are traded in the course of the financial year for the purpose of considering the loss and profit for that year. The Tribunal, in our opinion, has correctly answered the issue by holding that the loss of profit on account of valuation amounts to revenue losses or revenue receipt. The second question, therefore, also will have to be answered against the assessee and in favour of the Revenue. | 0 | 2,369 | 1,013 | ### 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:
added an Explanation to Section 73 to provide that the business of purchase and sale or shares by companies which are not investment or banking companies or companies carrying on business of granting loans or advances will be treated on the same footing as a speculation business."Learned Counsel, however, relies on paragraph 19.2. Paragraph 19.2 reads as under:-"The object of this provision is to curb the device sometimes resorted to by business houses controlling groups of companies to manipulate and reduce the taxable income of companies under their control."It appears from this paragraph in the explanatory note in respect of the amending Act that the argument advanced on behalf of the assessee by their Counsel may merit some consideration. In our opinion, however, a gainful reading of paragraphs 19.1 and 19.2 read with language of the Explanation would not bear out the submission as made on behalf of the Assessee. Para.19.1 as we have noted earlier does not refer to group companies, but refers to companies dealing with shares. It is in that context para.19.2 may be considered to mean that it also includes cases of such group companies. That does not mean that the explanation to Section 73 must be restricted only to group companies and not to other companies who carry on business of sale and purchase of shares either having no controlling interest in other companies or purchasing shares to control other companies. Once the language is clear the Court must give effect to the language for its true interpretation. If the language is in conflict with the Circular then to that extent to ignore the circular. The Circular cannot be read in the manner sought to be argued on behalf of the assessee as that would defeat the very object as set out in the statement of object and reasons to the Taxation Laws (Amendment) Act, 1973. In the light of the above, the Tribunal was right in taking the view it has taken. The first question is accordingly answered against the assessee.7. The learned Counsel then sets out that even if the question (i) is answered in favour of the assessee nevertheless the explanation specifically refers to purchase and sale of shares of any other companies and does not refer to losses suffered on account of book valuation. Our attention is invited to Section 43(5) which reads as under;-"speculative transaction" means transaction in which a contract for the purchase or sale of any commodity, including stocks and shares, is periodically or ultimately settled otherwise than by the actual delivery or transfer of the commodity or scrips."Our attention is also invited then to Section 28 Explanation 2 which reads as under:-"Where speculative transactions carried on by an assessee are of such a nature as to constitute a business, the business (hereinafter referred to as "speculation business") shall be deemed to be distinct and separate from any other business."Explanation 2, to Section 28, therefore, treats the business in respect of speculative transactions to be distinct and separate from any other business. Section 43(5) holds those transactions to be speculation respect of which a settlement is otherwise periodically or settled other than by delivery or transfer of the commodity or scrips. Reading these provisions learned Counsel submits that the speculative value would not fall within the explanation.8. Our attention is first invited to the judgment of the Supreme Court in Commissioner of Income Tax, West Bengal vs. Hind Construction Ltd., (83 ITR 211) to contend that if a person revalues his goods and shows higher value for them in his books he cannot be considered having sold his goods and made profits therein. The issue before the Supreme Court was in respect of sale of machinery. The Court there held that there was no sale. That judgment, therefore, would really of no much assistance.9. We next consider the judgment of the Supreme Court in Chainrup Sampatram vs. Commissioner of Income-tax, West Bengal, 24 ITR 481 , where the Supreme Court observed that the valuation of unsold stock at the close of an accounting period is a necessary part of the process of determining the trading results of that period and can in no sense be regarded as the source of such profits. The Supreme Court in Sanjeev Woolen Mills vs. Commissioner of Income Tax, (279 ITR 434 (S.C.) considered the judgment in Chainrup Sampatram (supra) for the purpose of considering the rational behind valuation of the stock at market whichever is earlier.10. On the other hand on behalf of the Revenue the learned Counsel has drawn our attention to the finding recorded by the Tribunal as also to the observations in Sanjeev Woolen Mills (supra) to contend that there is nothing inconsistent in the said judgment of the view taken by the Tribunal.11. In our opinion there can be no difference between the losses suffered in the course of trading by delivery and losses in terms of the book value. As long as the assessee is carrying on business of trading by way of purchase and sale of shares even if in respect of any financial year, there are no transaction and yet the company has stock in trade of shares, the book value will have to be considered for the purpose of considering the profit and loss in case of speculative business. There can be no doubt that the explanation to Section 73 cannot be read to mean only when there is a purchase and sale of shares in the course of the financial year. The explanation will cover both shares which are stock in trade and shares which are traded in the course of the financial year for the purpose of considering the loss and profit for that year. The Tribunal, in our opinion, has correctly answered the issue by holding that the loss of profit on account of valuation amounts to revenue losses or revenue receipt. The second question, therefore, also will have to be answered against the assessee and in favour of the Revenue.
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### Explanation:
6. A perusal of the explanation would, therefore, make it clear that where any part of the business of the company consists in the purchase and sale of shares of other companies, for the purpose of Section 73 such company shall be deemed to be carrying on speculation business. On consideration of the said provision considering the language of the Explanation there is atleast no scope for ambiguity. The language of the Explanation is clear, in as much as a company carrying on business of purchase and sale of shares shall be deemed to be carrying on speculation business.Our attention was invited to Circular No.204. The Circular contains the explanatory notes to Taxation Laws (Amendment) Act, 1975. Para.19.1 deals with the treatment of losses in speculation business. In so far as this paragraph is concerned there is no dispute in respect of its language wherein it uses the followingamending Act has added an Explanation to Section 73 to provide that the business of purchase and sale or shares by companies which are not investment or banking companies or companies carrying on business of granting loans or advances will be treated on the same footing as a speculation business."Learned Counsel, however, relies on paragraph 19.2. Paragraph 19.2 reads asobject of this provision is to curb the device sometimes resorted to by business houses controlling groups of companies to manipulate and reduce the taxable income of companies under their control."It appears from this paragraph in the explanatory note in respect of the amending Act that the argument advanced on behalf of the assessee by their Counsel may merit some consideration. In our opinion, however, a gainful reading of paragraphs 19.1 and 19.2 read with language of the Explanation would not bear out the submission as made on behalf of the Assessee. Para.19.1 as we have noted earlier does not refer to group companies, but refers to companies dealing with shares. It is in that context para.19.2 may be considered to mean that it also includes cases of such group companies. That does not mean that the explanation to Section 73 must be restricted only to group companies and not to other companies who carry on business of sale and purchase of shares either having no controlling interest in other companies or purchasing shares to control other companies. Once the language is clear the Court must give effect to the language for its true interpretation. If the language is in conflict with the Circular then to that extent to ignore the circular. The Circular cannot be read in the manner sought to be argued on behalf of the assessee as that would defeat the very object as set out in the statement of object and reasons to the Taxation Laws (Amendment) Act, 1973. In the light of the above, the Tribunal was right in taking the view it has taken. The first question is accordingly answered against the assessee.Our attention is first invited to the judgment of the Supreme Court in Commissioner of Income Tax, West Bengal vs. Hind Construction Ltd., (83 ITR 211) to contend that if a person revalues his goods and shows higher value for them in his books he cannot be considered having sold his goods and made profits therein. The issue before the Supreme Court was in respect of sale of machinery. The Court there held that there was no sale. That judgment, therefore, would really of no much assistance.9. We next consider the judgment of the Supreme Court in Chainrup Sampatram vs. Commissioner ofWest Bengal, 24 ITR 481 , where the Supreme Court observed that the valuation of unsold stock at the close of an accounting period is a necessary part of the process of determining the trading results of that period and can in no sense be regarded as the source of such profits. The Supreme Court in Sanjeev Woolen Mills vs. Commissioner of Income Tax, (279 ITR 434 (S.C.) considered the judgment in Chainrup Sampatram (supra) for the purpose of considering the rational behind valuation of the stock at market whichever is earlier.10. On the other hand on behalf of the Revenue the learned Counsel has drawn our attention to the finding recorded by the Tribunal as also to the observations in Sanjeev Woolen Mills (supra) to contend that there is nothing inconsistent in the said judgment of the view taken by the Tribunal.11. In our opinion there can be no difference between the losses suffered in the course of trading by delivery and losses in terms of the book value. As long as the assessee is carrying on business of trading by way of purchase and sale of shares even if in respect of any financial year, there are no transaction and yet the company has stock in trade of shares, the book value will have to be considered for the purpose of considering the profit and loss in case of speculative business. There can be no doubt that the explanation to Section 73 cannot be read to mean only when there is a purchase and sale of shares in the course of the financial year. The explanation will cover both shares which are stock in trade and shares which are traded in the course of the financial year for the purpose of considering the loss and profit for that year. The Tribunal, in our opinion, has correctly answered the issue by holding that the loss of profit on account of valuation amounts to revenue losses or revenue receipt. The second question, therefore, also will have to be answered against the assessee and in favour of the Revenue.
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Commissioner of Income-Tax, Mumbai City-Iii, Mumbai Vs. Sinnar Bidi Udyog Limited & Another | profits or gains shall be computed after making the following allowances, namely :- (XV) any expenditure (not being an allowance of the nature descried in any of the clauses (i) to (xiv) inclusive, and not being in the nature of capital expenditure or personal expenses of the assessee) laid out or expended wholly and exclusively for the purpose of such business, profession or vocation."17.In the aforesaid matter before the Apex Court, a person who was an employee of the managing agent of the assessee company from 1922 to 1935 and who was also an employee of the assessee from 1935 and also its director from 1940, was paid a gratuity of Rs. 40,000/- by the assessee company, "in appreciation of his long and valuable services to the company". The company had no scheme for payment of gratuities nor did it pay such gratuities in practice. There was nothing to show that the employee had accepted a low salary in expectation of a gratuity on retirement or that the gratuity was paid for the purpose of facilitating the carrying on of the business of the company or as a matter of commercial expediency. The Apex Court disallowed the deduction and it is in that context, the Apex Court has laid down the tests as referred to above.18.Having heard both the Counsel and having noted relevant judgments as stated above, we are of the view that as far as the present payments made to the employees are concerned, although these payments were made for the services rendered by the employees concerned for the period prior to their joining into the assessee company, the assessee company had considered their representation and thereafter, settled the matter with the employees. The Respondent assessee company had considered the fact that the affairs of the earlier company were taken over by the assessee company and the services of the employees were continuous and they had put in long valuable service over the years. Since the affairs of the earlier company were taken over and the services were continuous, the workers had legitimate expectation that their earlier service will also be considered for calculating gratuity. The employees had also initiated proceedings against the Respondent company, first before the Labour Commissioner and thereafter before the Gratuity Authority. It is, thereafter that the necessary decision was taken by the Respondent company to settle the controversy. The Respondent company accepted part of the claim by passing a resolution in the meeting of Board of Directors. Therefore, we are of the view that this payment has been made to the employees by way of commercial expediency also. In our view the second and the third test laid down by the Apex Court in the Gordon Woodroffe Leather case (supra) clearly apply in the present case.19.The preposition laid down in the case of Rajaram Bandekar has no application to the present case. In that matter, the Division Bench has squarely held that it was a case pertaining to the expenditure in the nature of bonus and, therefore, it was necessary to examine as to whether the second proviso to section 36(1)(ii) would get attracted and it is for that purpose that the Division Bench had sent back the matter to the Tribunal. In this connection, it is material to note that the proviso to section 36(1)(ii) as it then existed (and deleted with effect from 1st April, 1989) read as follows :"Provided further that the amount of the bonus (not being bonus referred to in the first proviso) or commission is reasonable with reference to -(a)the pay of the employee and the conditions of his service;(b)the profits of the business or profession for the previous year in question ; and(c)the general practice in similar business or profession".This clearly shows that the proviso was of wide ambit and it covered the expenditure in the nature of bonus in excess of the limit prescribed under the Payment of Bonus Act. That is not the case when it comes to payment in the nature of gratuity. Section 36(1)(v) of the Act quoted above referred to a sum paid by the assessee as an employer by way of contribution towards the approved gratuity fund created by him. In the instant case, it is not a payment either towards or from the gratuity fund. It is a payment in excess of the payment that would be required to be made under the Payment of Gratuity Act, though made on the basis of legitimate expectations of the workmen in the facts of the case on the one hand and the commercial expediency of the employer on the other.20.It is well settled that the legitimate business needs of an assessee must be judged from the point of view of business. It is for the assessee to consider the business expediency and whether a particular expenditure should be incurred for the business. Provision of gratuity to the employees for the continuous services rendered to the company taken over cannot be said to be either unusual or unnecessary. The workmen have come to expect such provision or their legitimate due and in the instant case they had in fact filed application before the Payment of Gratuity Authority. The resolution of the Board of Directors also accepted their legitimate dues while making it clear that, it should not create financial burden beyond legal provision on continuity of service.21.In the circumstances, we are of the view that the deduction claimed by the company would not fall under section 36(1)(v) of the Act, but would be in the nature of revenue expenditure wholly and exclusively for the purposes of business. In that view of the matter, in our view the decision arrived at by the C.I.T. (Appeal) as well as by the Income Tax Appellate Tribunal cannot be faulted and the Tribunal was justified in coming to the conclusion in the facts and circumstances of the case that the expenditure of Rs. 3,70,755/- incurred by the assessee as retirement compensation was allowable as revenue expenditure. | 0[ds]18.Having heard both the Counsel and having noted relevant judgments as stated above, we are of the view that as far as the present payments made to the employees are concerned, although these payments were made for the services rendered by the employees concerned for the period prior to their joining into the assessee company, the assessee company had considered their representation and thereafter, settled the matter with the employees. The Respondent assessee company had considered the fact that the affairs of the earlier company were taken over by the assessee company and the services of the employees were continuous and they had put in long valuable service over the years. Since the affairs of the earlier company were taken over and the services were continuous, the workers had legitimate expectation that their earlier service will also be considered for calculating gratuity. The employees had also initiated proceedings against the Respondent company, first before the Labour Commissioner and thereafter before the Gratuity Authority. It is, thereafter that the necessary decision was taken by the Respondent company to settle the controversy. The Respondent company accepted part of the claim by passing a resolution in the meeting of Board of Directors. Therefore, we are of the view that this payment has been made to the employees by way of commercial expediency also. In our view the second and the third test laid down by the Apex Court in the Gordon Woodroffe Leather case (supra) clearly apply in the presentclearly shows that the proviso was of wide ambit and it covered the expenditure in the nature of bonus in excess of the limit prescribed under the Payment of Bonus Act. That is not the case when it comes to payment in the nature of gratuity. Section 36(1)(v) of the Act quoted above referred to a sum paid by the assessee as an employer by way of contribution towards the approved gratuity fund created by him. In the instant case, it is not a payment either towards or from the gratuity fund. It is a payment in excess of the payment that would be required to be made under the Payment of Gratuity Act, though made on the basis of legitimate expectations of the workmen in the facts of the case on the one hand and the commercial expediency of the employer on the other.20.It is well settled that the legitimate business needs of an assessee must be judged from the point of view of business. It is for the assessee to consider the business expediency and whether a particular expenditure should be incurred for the business. Provision of gratuity to the employees for the continuous services rendered to the company taken over cannot be said to be either unusual or unnecessary. The workmen have come to expect such provision or their legitimate due and in the instant case they had in fact filed application before the Payment of Gratuity Authority. The resolution of the Board of Directors also accepted their legitimate dues while making it clear that, it should not create financial burden beyond legal provision on continuity of service.21.In the circumstances, we are of the view that the deduction claimed by the company would not fall under section 36(1)(v) of the Act, but would be in the nature of revenue expenditure wholly and exclusively for the purposes of business. In that view of the matter, in our view the decision arrived at by the C.I.T. (Appeal) as well as by the Income Tax Appellate Tribunal cannot be faulted and the Tribunal was justified in coming to the conclusion in the facts and circumstances of the case that the expenditure of Rs. 3,70,755/incurred by the assessee as retirement compensation was allowable as revenue expenditure. | 0 | 3,974 | 675 | ### 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:
profits or gains shall be computed after making the following allowances, namely :- (XV) any expenditure (not being an allowance of the nature descried in any of the clauses (i) to (xiv) inclusive, and not being in the nature of capital expenditure or personal expenses of the assessee) laid out or expended wholly and exclusively for the purpose of such business, profession or vocation."17.In the aforesaid matter before the Apex Court, a person who was an employee of the managing agent of the assessee company from 1922 to 1935 and who was also an employee of the assessee from 1935 and also its director from 1940, was paid a gratuity of Rs. 40,000/- by the assessee company, "in appreciation of his long and valuable services to the company". The company had no scheme for payment of gratuities nor did it pay such gratuities in practice. There was nothing to show that the employee had accepted a low salary in expectation of a gratuity on retirement or that the gratuity was paid for the purpose of facilitating the carrying on of the business of the company or as a matter of commercial expediency. The Apex Court disallowed the deduction and it is in that context, the Apex Court has laid down the tests as referred to above.18.Having heard both the Counsel and having noted relevant judgments as stated above, we are of the view that as far as the present payments made to the employees are concerned, although these payments were made for the services rendered by the employees concerned for the period prior to their joining into the assessee company, the assessee company had considered their representation and thereafter, settled the matter with the employees. The Respondent assessee company had considered the fact that the affairs of the earlier company were taken over by the assessee company and the services of the employees were continuous and they had put in long valuable service over the years. Since the affairs of the earlier company were taken over and the services were continuous, the workers had legitimate expectation that their earlier service will also be considered for calculating gratuity. The employees had also initiated proceedings against the Respondent company, first before the Labour Commissioner and thereafter before the Gratuity Authority. It is, thereafter that the necessary decision was taken by the Respondent company to settle the controversy. The Respondent company accepted part of the claim by passing a resolution in the meeting of Board of Directors. Therefore, we are of the view that this payment has been made to the employees by way of commercial expediency also. In our view the second and the third test laid down by the Apex Court in the Gordon Woodroffe Leather case (supra) clearly apply in the present case.19.The preposition laid down in the case of Rajaram Bandekar has no application to the present case. In that matter, the Division Bench has squarely held that it was a case pertaining to the expenditure in the nature of bonus and, therefore, it was necessary to examine as to whether the second proviso to section 36(1)(ii) would get attracted and it is for that purpose that the Division Bench had sent back the matter to the Tribunal. In this connection, it is material to note that the proviso to section 36(1)(ii) as it then existed (and deleted with effect from 1st April, 1989) read as follows :"Provided further that the amount of the bonus (not being bonus referred to in the first proviso) or commission is reasonable with reference to -(a)the pay of the employee and the conditions of his service;(b)the profits of the business or profession for the previous year in question ; and(c)the general practice in similar business or profession".This clearly shows that the proviso was of wide ambit and it covered the expenditure in the nature of bonus in excess of the limit prescribed under the Payment of Bonus Act. That is not the case when it comes to payment in the nature of gratuity. Section 36(1)(v) of the Act quoted above referred to a sum paid by the assessee as an employer by way of contribution towards the approved gratuity fund created by him. In the instant case, it is not a payment either towards or from the gratuity fund. It is a payment in excess of the payment that would be required to be made under the Payment of Gratuity Act, though made on the basis of legitimate expectations of the workmen in the facts of the case on the one hand and the commercial expediency of the employer on the other.20.It is well settled that the legitimate business needs of an assessee must be judged from the point of view of business. It is for the assessee to consider the business expediency and whether a particular expenditure should be incurred for the business. Provision of gratuity to the employees for the continuous services rendered to the company taken over cannot be said to be either unusual or unnecessary. The workmen have come to expect such provision or their legitimate due and in the instant case they had in fact filed application before the Payment of Gratuity Authority. The resolution of the Board of Directors also accepted their legitimate dues while making it clear that, it should not create financial burden beyond legal provision on continuity of service.21.In the circumstances, we are of the view that the deduction claimed by the company would not fall under section 36(1)(v) of the Act, but would be in the nature of revenue expenditure wholly and exclusively for the purposes of business. In that view of the matter, in our view the decision arrived at by the C.I.T. (Appeal) as well as by the Income Tax Appellate Tribunal cannot be faulted and the Tribunal was justified in coming to the conclusion in the facts and circumstances of the case that the expenditure of Rs. 3,70,755/- incurred by the assessee as retirement compensation was allowable as revenue expenditure.
### Response:
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### Explanation:
18.Having heard both the Counsel and having noted relevant judgments as stated above, we are of the view that as far as the present payments made to the employees are concerned, although these payments were made for the services rendered by the employees concerned for the period prior to their joining into the assessee company, the assessee company had considered their representation and thereafter, settled the matter with the employees. The Respondent assessee company had considered the fact that the affairs of the earlier company were taken over by the assessee company and the services of the employees were continuous and they had put in long valuable service over the years. Since the affairs of the earlier company were taken over and the services were continuous, the workers had legitimate expectation that their earlier service will also be considered for calculating gratuity. The employees had also initiated proceedings against the Respondent company, first before the Labour Commissioner and thereafter before the Gratuity Authority. It is, thereafter that the necessary decision was taken by the Respondent company to settle the controversy. The Respondent company accepted part of the claim by passing a resolution in the meeting of Board of Directors. Therefore, we are of the view that this payment has been made to the employees by way of commercial expediency also. In our view the second and the third test laid down by the Apex Court in the Gordon Woodroffe Leather case (supra) clearly apply in the presentclearly shows that the proviso was of wide ambit and it covered the expenditure in the nature of bonus in excess of the limit prescribed under the Payment of Bonus Act. That is not the case when it comes to payment in the nature of gratuity. Section 36(1)(v) of the Act quoted above referred to a sum paid by the assessee as an employer by way of contribution towards the approved gratuity fund created by him. In the instant case, it is not a payment either towards or from the gratuity fund. It is a payment in excess of the payment that would be required to be made under the Payment of Gratuity Act, though made on the basis of legitimate expectations of the workmen in the facts of the case on the one hand and the commercial expediency of the employer on the other.20.It is well settled that the legitimate business needs of an assessee must be judged from the point of view of business. It is for the assessee to consider the business expediency and whether a particular expenditure should be incurred for the business. Provision of gratuity to the employees for the continuous services rendered to the company taken over cannot be said to be either unusual or unnecessary. The workmen have come to expect such provision or their legitimate due and in the instant case they had in fact filed application before the Payment of Gratuity Authority. The resolution of the Board of Directors also accepted their legitimate dues while making it clear that, it should not create financial burden beyond legal provision on continuity of service.21.In the circumstances, we are of the view that the deduction claimed by the company would not fall under section 36(1)(v) of the Act, but would be in the nature of revenue expenditure wholly and exclusively for the purposes of business. In that view of the matter, in our view the decision arrived at by the C.I.T. (Appeal) as well as by the Income Tax Appellate Tribunal cannot be faulted and the Tribunal was justified in coming to the conclusion in the facts and circumstances of the case that the expenditure of Rs. 3,70,755/incurred by the assessee as retirement compensation was allowable as revenue expenditure.
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Bank Of Bihar Vs. State Of Bihar & Ors | or performance of the promise but also for the interest of the debt etc. Section 176 is in the following terms:"If the pawnor makes default in payment of the debt, or performance, at the stipulated time of the promise in respect of which the goods were pledged, the pawnee may bring a suit against the pawnor upon the debt or promise, and retain the goods pledged as a collateral security: or he may sell the thing pledged, on giving the pawnor reasonable notice of the sale."If the proceeds of such sale are less than the amount due in respect of the debt or promise, the pawnor is still liable to pay the balance. If the proceeds of the sale are greater than the amount so due, the pawnee shall pay over the surplus to the pawnor." Section 180 is to the effect that if a third person wrongfully deprives the bailee of the use of the possession of the goods bailed or does him any injury the bailee is entitled to use such remedies as the owner might have used in the like case it no bailment had been made and either the bailor or the bailee may bring a suit against a third person for such deprivation or injury. According to Section 181 whatever is obtained by way of relief or compensation in any such suit shall, as between the bailor and bailee, be dealt with according to their respective interests. Relying on the above two sections the High Court came to the conclusion that a pawnee has merely the possession of the goods coupled with a power to sell them on default by the pawnor but the latter retains the ownership subject to a lien to the extent of the debt enforceable by exercise the power of sale. In the present case the sugar had been seized and then sold. The sale proceeds would have been available to defendants 2 to 5 subject to the claim of the plaintiff against them but it ceased to have any lien on the pledged property or the sale proceeds against any third party including the State as soon as it was legally deprived of the possession of the pledged goods.6. According to the Statement m Halsburys Laws of England "pawn" has been described as a security where by contract a deposit of goods is made a security for a debt and the right to the property vests in the pledgee so far as is necessary to secure the debt: in this sense it is intermediate between a simple lien and a mortgage which wholly passed the property in the thing conveyed"*. "The pawnee has a special property or special interest in the thing pledged, while the general property therein continues in the owner. That special property or interest exists so that the pawnee can compel payment of the debt or can sell the goods when the right to do so arise. This special property or interest is to be distinguished from the mere right of detention which the holder of a lien posseses in that it is transferable in the sense that a pawnee may assign or pledge his special property or interest in the goods"**. "Where judgment has been obtained against the power of goods and execution has issued thereon the sheriff cannot seize the goods pawned unless he satisfied the claim of the pawne." (based mainly on Rogers v. Kennay. (1846) 9 QB 592): "On the bankruptcy of the pawnor the pawnee is a secured creditor in the bankruptcy with respect to firings pledged before the date of the receiving order and without notice of a prior available act of bankruptcy"***. It has not been shown how the law in India is in any way different from the English law relating to the fights of the pawnee vis a-vis other unsecured creditors of the pawnor.*3 rd Edn. Vol. 29., Page 211.*Halsburys Laws of England 3rd Ed. Vol. 29., pp. 218-219.**Halsburys Laws of England 3rd Ed. Vol. 29., p. 222."7. In our judgment the High Court is in error in considering that the rights of the pawnee who had parted with money in favour of the pawnor on the security of the goods can be defeated by the goods being lawfully seized by the Government and the money beging made available to other creditors of the pawnor without the claim of the pawnee being fully satisfied. The pawnee has special property and a lien which is not of ordinary nature on the goods and so long as his clam is not satisfied no other creditor of the pawnor has any right to take away the goods or its price. After the goods had been seized by the Government it was bound to pay the amount due to the plaintiff and the balance could have been made available to satisfy the claim of other creditors of the pawnor. But by a mere act of lawful seizure the Government could not deprive the plaintiff at the amount which was secured by the pledge of the goods to it. As the act of the Government resulted in deprivation of the amount to which the plaintiff was entitled it was bound to reimburse the plaintiff for such amount which the plaintiff in ordinary course would have realized by sale of the goods pledged with it on the pawnor making a default inn payment of debt.8. The approach of the trial Court was unexceptionable. The Plaintiffs right as a pawnee could not be extinguished by the seizure of the goods in its possession inasmuch as the pledge of the goods was not meant to replace the liability under the cash credit agreement. It was intended to give the plaintiff a primary right to sell the goods in satisfaction of the liability of the pawnor. The Cane Commissioner who was an unsecured creditor could not have any higher rights than the pawnor and was entitled only to the surplus money after satisfaction of the plaintiffs dues. | 1[ds]7. In our judgment the High Court is in error in considering that the rights of the pawnee who had parted with money in favour of the pawnor on the security of the goods can be defeated by the goods being lawfully seized by the Government and the money beging made available to other creditors of the pawnor without the claim of the pawnee being fully satisfied. The pawnee has special property and a lien which is not of ordinary nature on the goods and so long as his clam is not satisfied no other creditor of the pawnor has any right to take away the goods or its price. After the goods had been seized by the Government it was bound to pay the amount due to the plaintiff and the balance could have been made available to satisfy the claim of other creditors of the pawnor. But by a mere act of lawful seizure the Government could not deprive the plaintiff at the amount which was secured by the pledge of the goods to it. As the act of the Government resulted in deprivation of the amount to which the plaintiff was entitled it was bound to reimburse the plaintiff for such amount which the plaintiff in ordinary course would have realized by sale of the goods pledged with it on the pawnor making a default inn payment of debt.8. The approach of the trial Court was unexceptionable. The Plaintiffs right as a pawnee could not be extinguished by the seizure of the goods in its possession inasmuch as the pledge of the goods was not meant to replace the liability under the cash credit agreement. It was intended to give the plaintiff a primary right to sell the goods in satisfaction of the liability of the pawnor. The Cane Commissioner who was an unsecured creditor could not have any higher rights than the pawnor and was entitled only to the surplus money after satisfaction of the plaintiffsthe proceeds of such sale are less than the amount due in respect of the debt or promise, the pawnor is still liable to pay the balance. If the proceeds of the sale are greater than the amount so due, the pawnee shall pay over the surplus to the pawnor." Section 180 is to the effect that if a third person wrongfully deprives the bailee of the use of the possession of the goods bailed or does him any injury the bailee is entitled to use such remedies as the owner might have used in the like case it no bailment had been made and either the bailor or the bailee may bring a suit against a third person for such deprivation or injury. According to Section 181 whatever is obtained by way of relief or compensation in any such suit shall, as between the bailor and bailee, be dealt with according to their respective interests. Relying on the above two sections the High Court came to the conclusion that a pawnee has merely the possession of the goods coupled with a power to sell them on default by the pawnor but the latter retains the ownership subject to a lien to the extent of the debt enforceable by exercise the power of sale. In the present case the sugar had been seized and then sold. The sale proceeds would have been available to defendants 2 to 5 subject to the claim of the plaintiff against them but it ceased to have any lien on the pledged property or the sale proceeds against any third party including the State as soon as it was legally deprived of the possession of the pledged goods. | 1 | 2,214 | 637 | ### 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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or performance of the promise but also for the interest of the debt etc. Section 176 is in the following terms:"If the pawnor makes default in payment of the debt, or performance, at the stipulated time of the promise in respect of which the goods were pledged, the pawnee may bring a suit against the pawnor upon the debt or promise, and retain the goods pledged as a collateral security: or he may sell the thing pledged, on giving the pawnor reasonable notice of the sale."If the proceeds of such sale are less than the amount due in respect of the debt or promise, the pawnor is still liable to pay the balance. If the proceeds of the sale are greater than the amount so due, the pawnee shall pay over the surplus to the pawnor." Section 180 is to the effect that if a third person wrongfully deprives the bailee of the use of the possession of the goods bailed or does him any injury the bailee is entitled to use such remedies as the owner might have used in the like case it no bailment had been made and either the bailor or the bailee may bring a suit against a third person for such deprivation or injury. According to Section 181 whatever is obtained by way of relief or compensation in any such suit shall, as between the bailor and bailee, be dealt with according to their respective interests. Relying on the above two sections the High Court came to the conclusion that a pawnee has merely the possession of the goods coupled with a power to sell them on default by the pawnor but the latter retains the ownership subject to a lien to the extent of the debt enforceable by exercise the power of sale. In the present case the sugar had been seized and then sold. The sale proceeds would have been available to defendants 2 to 5 subject to the claim of the plaintiff against them but it ceased to have any lien on the pledged property or the sale proceeds against any third party including the State as soon as it was legally deprived of the possession of the pledged goods.6. According to the Statement m Halsburys Laws of England "pawn" has been described as a security where by contract a deposit of goods is made a security for a debt and the right to the property vests in the pledgee so far as is necessary to secure the debt: in this sense it is intermediate between a simple lien and a mortgage which wholly passed the property in the thing conveyed"*. "The pawnee has a special property or special interest in the thing pledged, while the general property therein continues in the owner. That special property or interest exists so that the pawnee can compel payment of the debt or can sell the goods when the right to do so arise. This special property or interest is to be distinguished from the mere right of detention which the holder of a lien posseses in that it is transferable in the sense that a pawnee may assign or pledge his special property or interest in the goods"**. "Where judgment has been obtained against the power of goods and execution has issued thereon the sheriff cannot seize the goods pawned unless he satisfied the claim of the pawne." (based mainly on Rogers v. Kennay. (1846) 9 QB 592): "On the bankruptcy of the pawnor the pawnee is a secured creditor in the bankruptcy with respect to firings pledged before the date of the receiving order and without notice of a prior available act of bankruptcy"***. It has not been shown how the law in India is in any way different from the English law relating to the fights of the pawnee vis a-vis other unsecured creditors of the pawnor.*3 rd Edn. Vol. 29., Page 211.*Halsburys Laws of England 3rd Ed. Vol. 29., pp. 218-219.**Halsburys Laws of England 3rd Ed. Vol. 29., p. 222."7. In our judgment the High Court is in error in considering that the rights of the pawnee who had parted with money in favour of the pawnor on the security of the goods can be defeated by the goods being lawfully seized by the Government and the money beging made available to other creditors of the pawnor without the claim of the pawnee being fully satisfied. The pawnee has special property and a lien which is not of ordinary nature on the goods and so long as his clam is not satisfied no other creditor of the pawnor has any right to take away the goods or its price. After the goods had been seized by the Government it was bound to pay the amount due to the plaintiff and the balance could have been made available to satisfy the claim of other creditors of the pawnor. But by a mere act of lawful seizure the Government could not deprive the plaintiff at the amount which was secured by the pledge of the goods to it. As the act of the Government resulted in deprivation of the amount to which the plaintiff was entitled it was bound to reimburse the plaintiff for such amount which the plaintiff in ordinary course would have realized by sale of the goods pledged with it on the pawnor making a default inn payment of debt.8. The approach of the trial Court was unexceptionable. The Plaintiffs right as a pawnee could not be extinguished by the seizure of the goods in its possession inasmuch as the pledge of the goods was not meant to replace the liability under the cash credit agreement. It was intended to give the plaintiff a primary right to sell the goods in satisfaction of the liability of the pawnor. The Cane Commissioner who was an unsecured creditor could not have any higher rights than the pawnor and was entitled only to the surplus money after satisfaction of the plaintiffs dues.
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7. In our judgment the High Court is in error in considering that the rights of the pawnee who had parted with money in favour of the pawnor on the security of the goods can be defeated by the goods being lawfully seized by the Government and the money beging made available to other creditors of the pawnor without the claim of the pawnee being fully satisfied. The pawnee has special property and a lien which is not of ordinary nature on the goods and so long as his clam is not satisfied no other creditor of the pawnor has any right to take away the goods or its price. After the goods had been seized by the Government it was bound to pay the amount due to the plaintiff and the balance could have been made available to satisfy the claim of other creditors of the pawnor. But by a mere act of lawful seizure the Government could not deprive the plaintiff at the amount which was secured by the pledge of the goods to it. As the act of the Government resulted in deprivation of the amount to which the plaintiff was entitled it was bound to reimburse the plaintiff for such amount which the plaintiff in ordinary course would have realized by sale of the goods pledged with it on the pawnor making a default inn payment of debt.8. The approach of the trial Court was unexceptionable. The Plaintiffs right as a pawnee could not be extinguished by the seizure of the goods in its possession inasmuch as the pledge of the goods was not meant to replace the liability under the cash credit agreement. It was intended to give the plaintiff a primary right to sell the goods in satisfaction of the liability of the pawnor. The Cane Commissioner who was an unsecured creditor could not have any higher rights than the pawnor and was entitled only to the surplus money after satisfaction of the plaintiffsthe proceeds of such sale are less than the amount due in respect of the debt or promise, the pawnor is still liable to pay the balance. If the proceeds of the sale are greater than the amount so due, the pawnee shall pay over the surplus to the pawnor." Section 180 is to the effect that if a third person wrongfully deprives the bailee of the use of the possession of the goods bailed or does him any injury the bailee is entitled to use such remedies as the owner might have used in the like case it no bailment had been made and either the bailor or the bailee may bring a suit against a third person for such deprivation or injury. According to Section 181 whatever is obtained by way of relief or compensation in any such suit shall, as between the bailor and bailee, be dealt with according to their respective interests. Relying on the above two sections the High Court came to the conclusion that a pawnee has merely the possession of the goods coupled with a power to sell them on default by the pawnor but the latter retains the ownership subject to a lien to the extent of the debt enforceable by exercise the power of sale. In the present case the sugar had been seized and then sold. The sale proceeds would have been available to defendants 2 to 5 subject to the claim of the plaintiff against them but it ceased to have any lien on the pledged property or the sale proceeds against any third party including the State as soon as it was legally deprived of the possession of the pledged goods.
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D.Sanjeevayya Vs. Election Tribunal Andhra Pradesh & Ors | another and the provisions of one section cannot be used to defeat those of another unless it is impossible to effect reconciliation between them. The principle stated in Crawfords Statutory Construction at p. 260 is as follow:"Hence, the Court should, when it seeks the legislative intent, construe all of the constituent parts of the statute together, and seek to ascertain the legislative intention from the whole Act, considering every provision thereof in the light of the general purpose and object of the Act itself, and endeavouring to make every part effective, harmonious, and sensible. This means, of course, that the Court should attempt to avoid absurd consequences in any part of the statute and refuse to regard any word, phrase, clause or sentence superfluous, unless such a result in clearly unavoidable."5. It is, therefore, not permissible, in the present case, to interpret S. 150 of the Act in isolation without reference to Part III of the Act which prescribes the machinery for calling in question the election of a returned candidate. When an election petition has been referred to a Tribunal by the Election Commission and the former is seized of the matter, the petition has to be disposed of according to law. The Tribunal has to adjudge at the conclusion of the proceeding whether the returned candidate has or has not committed any corrupt practice at the election secondly, it has to decide whether the second respondent should or should not be declared to have been duly elected. A returned candidate cannot get rid of an election petition filed against him by resigning his seat in the Legislature, whatever the reason for his resignation may be. In the present case, the election petition filed by respondent No. 2 has prayed for a composite relief namely, that the election of the appellant should be declared to be void and that respondent No. 2 should be declared to be duly elected. In a case of this description the Election Commission is not bound immediately to call upon the Assembly constituency to elect a person for the purpose of filling the vacancy caused by the resignation of the appellant. It is open to the Election Commission to await the result of the election petition and thereafter decide whether a bye-election should be held or not. If the election petition is ultimately dismissed or if the election is set aside but no further relief is given, a bye-election would follow. If, however, respondent No. 2 who filed the election petition or any other candidate is declared elected the provisions of S. 150 of the Act cannot operate at all because there is no vacancy to be filled. In the present case, therefore, we hold that the Election Commission is not bound under S. 150 of the Act to hold a bye-election forthwith but may suspend taking action under that section till the result of the election petition filed by respondent No. 2 is known.6. This view is also supported by the circumstance that no time-limit is fixed in the section for the Election Commission to call upon the Assembly constituency concerned to elect a person for filling the vacancy. Nor does the section say that the Election Commission shall hold a bye-election "forthwith" or "immediately". It is also conceivable that there may be a situation in which the Election Commission may not hold a bye-election at all or may hold the bye-election after a delay of 2 or 3 months. Take for instance, a case where a member resigns his seat in the Legislative Assembly of a State 3 months before a General Election is due to be held. It cannot be suggested that the Election Commission is bound under S. 150 (1) of the Act to hold a bye-election forthwith in that vacancy. Take also another instance where a member of an Assembly of Himachal Pradesh resigns his seat during winter. It cannot be argued that the Election Commission is bound to issue a notification for a bye-election forthwith though the climatic conditions are unsuitable for holding such a bye-election.7. The view that we have expressed as to the scope and effect of S. 150 of the Act is borne out by the following passage from Mays Parliamentary Practice, 17th Edn., pp. 176-177 :"Where a vacancy has occurred prior to, or immediately after, the first meeting of a new Parliament, the writ will not be issued until the time for presenting election petitions has expired. Nor will a writ be issued, if the seat which has been vacated be claimed on behalf of another candidate.In December 1852, several Members, against whose return election petitions were pending, accepted office under the Crown. After much consideration, it was agreed that where a void election only was alleged, a new writ should be issued (Southampton and Carlow writs, 29 December 1852); and again, in 1859 and in 1880, the same rule was adopted.Where the seat is claimed, it has been ruled that the writ should be withheld until after the trial of that claim (Athlone, Election, 1859), or until the petition has been withdrawn [Louth Election (Mr. Chichester Fortescue), 1866].In 1859, Viscount Bury accepted office under the Crown, while a petition against his return for Norwich, on the ground of bribery, was pending; and, as his seat was not claimed, a new writ was issued. Being again returned, a petition was presented against his second election, claiming the seat for another candidate. The petition against the first election came on for trial, and the committee reported that the sitting Members, Lord Bury and Mr. Schneider, had been guilty, by their agents, of bribery at that election. By virtue of that report, Lord Bury, under the Corrupt Practices Prevention Act, became incapable of sitting or voting in Parliament, or, in other words, ceased to be a Member of the House, but as a petition against his second return, claiming the seat, was then pending, a new writ was not issued [Parl. Deb. (1859) 155, c. 865]." | 0[ds]4. We are unable to accept the argument of the appellant as correct. In our opinion, the provisions of S. 150 of the Act must be interpreted in the context of Sections 84 and 98 (c) and other relevant provisions of Part III of the same Act. If the interpretation contended for by the appellant is accepted as correct the vacancy must be filled by a bye-election as soon as a member resigns his seat notwithstanding the pendency of an election petition challenging his election. If the candidate who filed the election petition eventually gets a declaration that the election of the member is void and that himself had been duly elected there will be two candidates representing the same constituency at the same time, one of them declared to be duly elected at the General Election and the other declared to have been elected at the bye-election and an impossible situation would arise. It cannot be supposed that Parliament contemplated such a situation while enacting Section 150 of the Act. Parliament could not have intended that the provisions of Part VI of the Act pertaining to election petitions, should stand abrogated as soon as a member resigns his seat in the Legislature. It is a well-settled rule of construction that the provisions of a statute should be so read as to harmonise with one another and the provisions of one section cannot be used to defeat those of another unless it is impossible to effect reconciliation between them.It is, therefore, not permissible, in the present case, to interpret S. 150 of the Act in isolation without reference to Part III of the Act which prescribes the machinery for calling in question the election of a returned candidate. When an election petition has been referred to a Tribunal by the Election Commission and the former is seized of the matter, the petition has to be disposed of according to law. The Tribunal has to adjudge at the conclusion of the proceeding whether the returned candidate has or has not committed any corrupt practice at the election secondly, it has to decide whether the second respondent should or should not be declared to have been duly elected. A returned candidate cannot get rid of an election petition filed against him by resigning his seat in the Legislature, whatever the reason for his resignation may be. In the present case, the election petition filed by respondent No. 2 has prayed for a composite relief namely, that the election of the appellant should be declared to be void and that respondent No. 2 should be declared to be duly elected. In a case of this description the Election Commission is not bound immediately to call upon the Assembly constituency to elect a person for the purpose of filling the vacancy caused by the resignation of the appellant. It is open to the Election Commission to await the result of the election petition and thereafter decide whether a bye-election should be held or not. If the election petition is ultimately dismissed or if the election is set aside but no further relief is given, a bye-election would follow. If, however, respondent No. 2 who filed the election petition or any other candidate is declared elected the provisions of S. 150 of the Act cannot operate at all because there is no vacancy to be filled. In the present case, therefore, we hold that the Election Commission is not bound under S. 150 of the Act to hold a bye-election forthwith but may suspend taking action under that section till the result of the election petition filed by respondent No. 2 iscannot be argued that the Election Commission is bound to issue a notification for a bye-election forthwith though the climatic conditions are unsuitable for holding such a bye-election.This view is also supported by the circumstance that nois fixed in the section for the Election Commission to call upon the Assembly constituency concerned to elect a person for filling the vacancy. Nor does the section say that the Election Commission shall hold a"forthwith" or "immediately". It is also conceivable that there may be a situation in which the Election Commission may not hold aat all or may hold theafter a delay of 2 or 3 months. Take for instance, a case where a member resigns his seat in the Legislative Assembly of a State 3 months before a General Election is due to be held. It cannot be suggested that the Election Commission is bound under S. 150 (1) of the Act to hold aforthwith in that vacancy. Take also another instance where a member of an Assembly of Himachal Pradesh resigns his seat during winter. Itcannot be argued that the Election Commission is bound to issue a notification for aforthwith though the climatic conditions are unsuitable for holding such a | 0 | 2,731 | 868 | ### Instruction:
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another and the provisions of one section cannot be used to defeat those of another unless it is impossible to effect reconciliation between them. The principle stated in Crawfords Statutory Construction at p. 260 is as follow:"Hence, the Court should, when it seeks the legislative intent, construe all of the constituent parts of the statute together, and seek to ascertain the legislative intention from the whole Act, considering every provision thereof in the light of the general purpose and object of the Act itself, and endeavouring to make every part effective, harmonious, and sensible. This means, of course, that the Court should attempt to avoid absurd consequences in any part of the statute and refuse to regard any word, phrase, clause or sentence superfluous, unless such a result in clearly unavoidable."5. It is, therefore, not permissible, in the present case, to interpret S. 150 of the Act in isolation without reference to Part III of the Act which prescribes the machinery for calling in question the election of a returned candidate. When an election petition has been referred to a Tribunal by the Election Commission and the former is seized of the matter, the petition has to be disposed of according to law. The Tribunal has to adjudge at the conclusion of the proceeding whether the returned candidate has or has not committed any corrupt practice at the election secondly, it has to decide whether the second respondent should or should not be declared to have been duly elected. A returned candidate cannot get rid of an election petition filed against him by resigning his seat in the Legislature, whatever the reason for his resignation may be. In the present case, the election petition filed by respondent No. 2 has prayed for a composite relief namely, that the election of the appellant should be declared to be void and that respondent No. 2 should be declared to be duly elected. In a case of this description the Election Commission is not bound immediately to call upon the Assembly constituency to elect a person for the purpose of filling the vacancy caused by the resignation of the appellant. It is open to the Election Commission to await the result of the election petition and thereafter decide whether a bye-election should be held or not. If the election petition is ultimately dismissed or if the election is set aside but no further relief is given, a bye-election would follow. If, however, respondent No. 2 who filed the election petition or any other candidate is declared elected the provisions of S. 150 of the Act cannot operate at all because there is no vacancy to be filled. In the present case, therefore, we hold that the Election Commission is not bound under S. 150 of the Act to hold a bye-election forthwith but may suspend taking action under that section till the result of the election petition filed by respondent No. 2 is known.6. This view is also supported by the circumstance that no time-limit is fixed in the section for the Election Commission to call upon the Assembly constituency concerned to elect a person for filling the vacancy. Nor does the section say that the Election Commission shall hold a bye-election "forthwith" or "immediately". It is also conceivable that there may be a situation in which the Election Commission may not hold a bye-election at all or may hold the bye-election after a delay of 2 or 3 months. Take for instance, a case where a member resigns his seat in the Legislative Assembly of a State 3 months before a General Election is due to be held. It cannot be suggested that the Election Commission is bound under S. 150 (1) of the Act to hold a bye-election forthwith in that vacancy. Take also another instance where a member of an Assembly of Himachal Pradesh resigns his seat during winter. It cannot be argued that the Election Commission is bound to issue a notification for a bye-election forthwith though the climatic conditions are unsuitable for holding such a bye-election.7. The view that we have expressed as to the scope and effect of S. 150 of the Act is borne out by the following passage from Mays Parliamentary Practice, 17th Edn., pp. 176-177 :"Where a vacancy has occurred prior to, or immediately after, the first meeting of a new Parliament, the writ will not be issued until the time for presenting election petitions has expired. Nor will a writ be issued, if the seat which has been vacated be claimed on behalf of another candidate.In December 1852, several Members, against whose return election petitions were pending, accepted office under the Crown. After much consideration, it was agreed that where a void election only was alleged, a new writ should be issued (Southampton and Carlow writs, 29 December 1852); and again, in 1859 and in 1880, the same rule was adopted.Where the seat is claimed, it has been ruled that the writ should be withheld until after the trial of that claim (Athlone, Election, 1859), or until the petition has been withdrawn [Louth Election (Mr. Chichester Fortescue), 1866].In 1859, Viscount Bury accepted office under the Crown, while a petition against his return for Norwich, on the ground of bribery, was pending; and, as his seat was not claimed, a new writ was issued. Being again returned, a petition was presented against his second election, claiming the seat for another candidate. The petition against the first election came on for trial, and the committee reported that the sitting Members, Lord Bury and Mr. Schneider, had been guilty, by their agents, of bribery at that election. By virtue of that report, Lord Bury, under the Corrupt Practices Prevention Act, became incapable of sitting or voting in Parliament, or, in other words, ceased to be a Member of the House, but as a petition against his second return, claiming the seat, was then pending, a new writ was not issued [Parl. Deb. (1859) 155, c. 865]."
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4. We are unable to accept the argument of the appellant as correct. In our opinion, the provisions of S. 150 of the Act must be interpreted in the context of Sections 84 and 98 (c) and other relevant provisions of Part III of the same Act. If the interpretation contended for by the appellant is accepted as correct the vacancy must be filled by a bye-election as soon as a member resigns his seat notwithstanding the pendency of an election petition challenging his election. If the candidate who filed the election petition eventually gets a declaration that the election of the member is void and that himself had been duly elected there will be two candidates representing the same constituency at the same time, one of them declared to be duly elected at the General Election and the other declared to have been elected at the bye-election and an impossible situation would arise. It cannot be supposed that Parliament contemplated such a situation while enacting Section 150 of the Act. Parliament could not have intended that the provisions of Part VI of the Act pertaining to election petitions, should stand abrogated as soon as a member resigns his seat in the Legislature. It is a well-settled rule of construction that the provisions of a statute should be so read as to harmonise with one another and the provisions of one section cannot be used to defeat those of another unless it is impossible to effect reconciliation between them.It is, therefore, not permissible, in the present case, to interpret S. 150 of the Act in isolation without reference to Part III of the Act which prescribes the machinery for calling in question the election of a returned candidate. When an election petition has been referred to a Tribunal by the Election Commission and the former is seized of the matter, the petition has to be disposed of according to law. The Tribunal has to adjudge at the conclusion of the proceeding whether the returned candidate has or has not committed any corrupt practice at the election secondly, it has to decide whether the second respondent should or should not be declared to have been duly elected. A returned candidate cannot get rid of an election petition filed against him by resigning his seat in the Legislature, whatever the reason for his resignation may be. In the present case, the election petition filed by respondent No. 2 has prayed for a composite relief namely, that the election of the appellant should be declared to be void and that respondent No. 2 should be declared to be duly elected. In a case of this description the Election Commission is not bound immediately to call upon the Assembly constituency to elect a person for the purpose of filling the vacancy caused by the resignation of the appellant. It is open to the Election Commission to await the result of the election petition and thereafter decide whether a bye-election should be held or not. If the election petition is ultimately dismissed or if the election is set aside but no further relief is given, a bye-election would follow. If, however, respondent No. 2 who filed the election petition or any other candidate is declared elected the provisions of S. 150 of the Act cannot operate at all because there is no vacancy to be filled. In the present case, therefore, we hold that the Election Commission is not bound under S. 150 of the Act to hold a bye-election forthwith but may suspend taking action under that section till the result of the election petition filed by respondent No. 2 iscannot be argued that the Election Commission is bound to issue a notification for a bye-election forthwith though the climatic conditions are unsuitable for holding such a bye-election.This view is also supported by the circumstance that nois fixed in the section for the Election Commission to call upon the Assembly constituency concerned to elect a person for filling the vacancy. Nor does the section say that the Election Commission shall hold a"forthwith" or "immediately". It is also conceivable that there may be a situation in which the Election Commission may not hold aat all or may hold theafter a delay of 2 or 3 months. Take for instance, a case where a member resigns his seat in the Legislative Assembly of a State 3 months before a General Election is due to be held. It cannot be suggested that the Election Commission is bound under S. 150 (1) of the Act to hold aforthwith in that vacancy. Take also another instance where a member of an Assembly of Himachal Pradesh resigns his seat during winter. Itcannot be argued that the Election Commission is bound to issue a notification for aforthwith though the climatic conditions are unsuitable for holding such a
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Nirmala Devi Vs. Gurgaon Scheduled Caste Vimukta Agricutlure Thrift & Credit Society Limited & Others | arrived at by the lower appellate court that the counter claim preferred by the respondent presumed to have been allowed, without appreciating the fact that the pertinent issue was the ownership and evidence was adduced with regard to the same.4. Mr. V.K. Bhardwaj, learned senior counsel appearing for the respondent No.1, in support of the judgment passed by the High Court would submit that the High Court has correctly remanded the matter and, therefore, this Court should not interfere in exercise of its jurisdiction under Article 136 of the Constitution.5. On a perusal of the judgment of the trial Court, it is perceivable that the issue No.3 pertained to ownership. A finding had been recorded in favour of the defendant, the respondent herein. In First Appeal, the same was affirmed, but, in Second Appeal, the High Court on the grounds, as has been stated herein-above, has set aside the same and remitted the matter to the trial court.6. Mr. S.R. Singh, learned senior counsel for the appellant has drawn our attention to paragraph 10 of a two-Judge Bench decision in P. Purushottam Reddy and Another v. Pratap Steels Ltd. 2002(2) R.C.R.(Civil) 70 : (2002) 2 SCC 686. The said paragraph reads as follows:-"The next question to be examined is the legality and propriety of the order of remand made by the High Court. Prior to the insertion of Rule 23A in Order 41 of the Code of Civil Procedure by CPC Amendment Act 1976, there were only two provisions contemplating remand by a court of appeal in Order 41 of CPC. Rule 23 applies when the trial court disposes of the entire suit by recording its findings on a preliminary issue without deciding other issues and the finding on preliminary issue is reversed in appeal. Rule 25 applies when the appellate court notices an omission on the part of the trial court to frame or try any issue or to determine any question of fact which in the opinion of the appellate court was essential to the right decision of the suit upon the merits. However, the remand contemplated by Rule 25 is a limited remand in as much as the subordinate court can try only such issues as are referred to it for trial and having done so, the evidence recorded, together with findings and reasons therefore of the trial court, are required to be returned to the appellate court. However, still it was a settled position of law before 1976 Amendment that the court, in a appropriate case could exercise its inherent jurisdiction under Section 151 of the CPC to order a remand if such a remand was considered pre-eminently necessary ex debito justitiate, though not covered by any specific provision of Order 41 of the CPC. In cases where additional evidence is required to be taken in the event of any one of the clauses of sub-rule (1) of Rule 27 being attracted, such additional evidence oral or documentary, is allowed to be produced either before the appellate court itself or by directing any court subordinate to the appellate court to receive such evidence and send it to the appellate court. In 1976, Rule 23 A has been inserted in Order 41 which provides for a remand by an appellate court hearing an appeal against a decree if (i) the trial court disposed of the case otherwise than on a preliminary point, and (ii) the decree is reversed in appeal and a retrial is considered necessary. On twin conditions being satisfied, the appellate court can exercise the same power of remand under Rule 23A as it is under Rule 23. After the amendment, all the cases of wholesale remand are covered by Rule 23 and 23 A. In view of the express provision of these rules, the High Court cannot have recourse to its inherent powers to make a remand because, as held in Mahendra v. Sushila, AIR (1965) SC 365, at p. 399), it is well settled that inherent powers can be availed of ex debito justiatiate only in the absence of express provisions in the Code. It is only in exceptional cases where the court may now exercise the power of remand de hors the Rules 23 and 23A. To wit, the superior court, if it finds that the judgment under appeal has not disposed of the case satisfactorily in the manner required by Order 20 Rule 3 or Order 41 Rule 31 of the CPC and hence it is no judgment in the eye of law, it may set aside the same and send the matter back for re-writing the judgment so as to protect valuable rights of the parties. An appellate court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23A or Rule 25 of the CPC. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore, must be avoided."7. In this context, we may also refer to a decision in Nedunuri Kameswaramma v. Sampati Subba Rao AIR 1963 SC 884 , wherein it has been held that where the parties were fully aware about the rival case and led the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mis-trial which vitiates proceedings. We have referred to this judgment solely for the purpose of the counter claim. As we have noted earlier, the issue pertained to denial of the ownership of the plaintiff and assertion of the same by the defendants and, therefore, the plaintiff was well aware that there was refutation of the claim. The counter claim was not, in that way, an independent claim.8. In view of the aforesaid, the High Court should have been well advised to dwell upon the merits of the case and should not have remanded the matter to the trial court. | 1[ds]5. On a perusal of the judgment of the trial Court, it is perceivable that the issue No.3 pertained to ownership. A finding had been recorded in favour of the defendant, the respondent herein. In First Appeal, the same was affirmed, but, in Second Appeal, the High Court on the grounds, as has been statedhas set aside the same and remitted the matter to the trial court.In this context, we may also refer to a decision in Nedunuri Kameswaramma v. Sampati Subba Rao AIR 1963 SC 884 , wherein it has been held that where the parties were fully aware about the rival case and led the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was thatwhich vitiates proceedings. We have referred to this judgment solely for the purpose of the counter claim. As we have noted earlier, the issue pertained to denial of the ownership of the plaintiff and assertion of the same by the defendants and, therefore, the plaintiff was well aware that there was refutation of the claim. The counter claim was not, in that way, an independent claim.8. In view of the aforesaid, the High Court should have been well advised to dwell upon the merits of the case and should not have remanded the matter to the trial court. | 1 | 1,734 | 270 | ### Instruction:
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arrived at by the lower appellate court that the counter claim preferred by the respondent presumed to have been allowed, without appreciating the fact that the pertinent issue was the ownership and evidence was adduced with regard to the same.4. Mr. V.K. Bhardwaj, learned senior counsel appearing for the respondent No.1, in support of the judgment passed by the High Court would submit that the High Court has correctly remanded the matter and, therefore, this Court should not interfere in exercise of its jurisdiction under Article 136 of the Constitution.5. On a perusal of the judgment of the trial Court, it is perceivable that the issue No.3 pertained to ownership. A finding had been recorded in favour of the defendant, the respondent herein. In First Appeal, the same was affirmed, but, in Second Appeal, the High Court on the grounds, as has been stated herein-above, has set aside the same and remitted the matter to the trial court.6. Mr. S.R. Singh, learned senior counsel for the appellant has drawn our attention to paragraph 10 of a two-Judge Bench decision in P. Purushottam Reddy and Another v. Pratap Steels Ltd. 2002(2) R.C.R.(Civil) 70 : (2002) 2 SCC 686. The said paragraph reads as follows:-"The next question to be examined is the legality and propriety of the order of remand made by the High Court. Prior to the insertion of Rule 23A in Order 41 of the Code of Civil Procedure by CPC Amendment Act 1976, there were only two provisions contemplating remand by a court of appeal in Order 41 of CPC. Rule 23 applies when the trial court disposes of the entire suit by recording its findings on a preliminary issue without deciding other issues and the finding on preliminary issue is reversed in appeal. Rule 25 applies when the appellate court notices an omission on the part of the trial court to frame or try any issue or to determine any question of fact which in the opinion of the appellate court was essential to the right decision of the suit upon the merits. However, the remand contemplated by Rule 25 is a limited remand in as much as the subordinate court can try only such issues as are referred to it for trial and having done so, the evidence recorded, together with findings and reasons therefore of the trial court, are required to be returned to the appellate court. However, still it was a settled position of law before 1976 Amendment that the court, in a appropriate case could exercise its inherent jurisdiction under Section 151 of the CPC to order a remand if such a remand was considered pre-eminently necessary ex debito justitiate, though not covered by any specific provision of Order 41 of the CPC. In cases where additional evidence is required to be taken in the event of any one of the clauses of sub-rule (1) of Rule 27 being attracted, such additional evidence oral or documentary, is allowed to be produced either before the appellate court itself or by directing any court subordinate to the appellate court to receive such evidence and send it to the appellate court. In 1976, Rule 23 A has been inserted in Order 41 which provides for a remand by an appellate court hearing an appeal against a decree if (i) the trial court disposed of the case otherwise than on a preliminary point, and (ii) the decree is reversed in appeal and a retrial is considered necessary. On twin conditions being satisfied, the appellate court can exercise the same power of remand under Rule 23A as it is under Rule 23. After the amendment, all the cases of wholesale remand are covered by Rule 23 and 23 A. In view of the express provision of these rules, the High Court cannot have recourse to its inherent powers to make a remand because, as held in Mahendra v. Sushila, AIR (1965) SC 365, at p. 399), it is well settled that inherent powers can be availed of ex debito justiatiate only in the absence of express provisions in the Code. It is only in exceptional cases where the court may now exercise the power of remand de hors the Rules 23 and 23A. To wit, the superior court, if it finds that the judgment under appeal has not disposed of the case satisfactorily in the manner required by Order 20 Rule 3 or Order 41 Rule 31 of the CPC and hence it is no judgment in the eye of law, it may set aside the same and send the matter back for re-writing the judgment so as to protect valuable rights of the parties. An appellate court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23A or Rule 25 of the CPC. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore, must be avoided."7. In this context, we may also refer to a decision in Nedunuri Kameswaramma v. Sampati Subba Rao AIR 1963 SC 884 , wherein it has been held that where the parties were fully aware about the rival case and led the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mis-trial which vitiates proceedings. We have referred to this judgment solely for the purpose of the counter claim. As we have noted earlier, the issue pertained to denial of the ownership of the plaintiff and assertion of the same by the defendants and, therefore, the plaintiff was well aware that there was refutation of the claim. The counter claim was not, in that way, an independent claim.8. In view of the aforesaid, the High Court should have been well advised to dwell upon the merits of the case and should not have remanded the matter to the trial court.
### Response:
1
### Explanation:
5. On a perusal of the judgment of the trial Court, it is perceivable that the issue No.3 pertained to ownership. A finding had been recorded in favour of the defendant, the respondent herein. In First Appeal, the same was affirmed, but, in Second Appeal, the High Court on the grounds, as has been statedhas set aside the same and remitted the matter to the trial court.In this context, we may also refer to a decision in Nedunuri Kameswaramma v. Sampati Subba Rao AIR 1963 SC 884 , wherein it has been held that where the parties were fully aware about the rival case and led the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was thatwhich vitiates proceedings. We have referred to this judgment solely for the purpose of the counter claim. As we have noted earlier, the issue pertained to denial of the ownership of the plaintiff and assertion of the same by the defendants and, therefore, the plaintiff was well aware that there was refutation of the claim. The counter claim was not, in that way, an independent claim.8. In view of the aforesaid, the High Court should have been well advised to dwell upon the merits of the case and should not have remanded the matter to the trial court.
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Dhakeswari Cotton Mills Ltd Vs. Commr. of Income-tax, West Bengal | Mahajan, CJ. 1. This appeal concerns the same assessee as Appeal No. 217 of 1953 and relates to the assessment of its profits for the years 1945-46, and 1946-47, the account years being 1943-44 and 1944 - 45. The facts and circumstances relating to these assessments are the same as have been stated in our judgment inDhakeshwari Cotton Mills Ltd. v. Commr. of Income-tax, Bengal, AIR 1955 SC 65 (A), and it is unnecessary to re-state them here. The assessee duly furnished returns for these years within the time allowed to it but the profits returned regarding these years could not be computed according to the provisions of law as the relative books of account were in the court of the Sub-Divisional Magistrate, Narayanganj and were not received back by the assessee till after the completion of the assessment. The Income-tax Officer did not accept the estimate disclosed of the gross profit and sales during the years and for reasons stated in the judgment relating to 1944-45 assessment he held that during these years also full amount of sales had not been accounted for. He therefore added back Rs. 23,67,000 in the year 1944 and Rs. 24, 55,000 in the year 1945. The profit disclosed by the audited account in 1944 was Rs. 8,06,830 and in 1945, Rs.877,800. 2. The Income-tax Officer estimated these figures at Rs. 31,73,830 and Rs. 33,32,800 by estimating the rate of profit at 33 1/3 per cent. On sales, whereas the appellant has shown a gross profit at the rate of 20 per cent and 19 per cent respectively. On appeal, the Appellate Assistant Commissioner confirmed this order. On further appeal to the Tribunal the estimate was reduced to 28 per cent. mostly for the reasons given in the judgment of the Tribunal relating to the assessment for the year 1944-45. The relevant part of the judgment dealing with these assessments is in these terms : "The appellant had shown a gross profit rate of 20 per cent in 1945-46 assessment and 19 per cent in 1946-47 assessment. After the additions made by the Income-tax Officer are taken into consideration, the gross profit rete works out to 33 1/3 per cent. on the enhanced sales, for both these years. 3. The lists of cases of other cotton mills filed with us by the Departmental representative show that profits during these two years were a little less than the profits during the assessment year 1944- 45. Considering all the facts of these cases, we are of opinion that the additions made during these two years be reduced to Rs. 14,00,000 in 1945-46 and Rs. 14,10,000 in 1946- 47. This would reduce the gross profits to about 28 per cent on enhanced sales during both these years". | 1[ds]3. The lists of cases of other cotton mills filed with us by the Departmental representative show that profits during these two years were a little less than the profits during the assessment year 1944- 45. Considering all the facts of these cases, we are of opinion that the additions made during these two years be reduced to Rs. 14,00,000 in 1945-46 and Rs. 14,10,000 in 1946- 47. This would reduce the gross profits to about 28 per cent on enhanced sales during both these years". | 1 | 508 | 98 | ### 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:
Mahajan, CJ. 1. This appeal concerns the same assessee as Appeal No. 217 of 1953 and relates to the assessment of its profits for the years 1945-46, and 1946-47, the account years being 1943-44 and 1944 - 45. The facts and circumstances relating to these assessments are the same as have been stated in our judgment inDhakeshwari Cotton Mills Ltd. v. Commr. of Income-tax, Bengal, AIR 1955 SC 65 (A), and it is unnecessary to re-state them here. The assessee duly furnished returns for these years within the time allowed to it but the profits returned regarding these years could not be computed according to the provisions of law as the relative books of account were in the court of the Sub-Divisional Magistrate, Narayanganj and were not received back by the assessee till after the completion of the assessment. The Income-tax Officer did not accept the estimate disclosed of the gross profit and sales during the years and for reasons stated in the judgment relating to 1944-45 assessment he held that during these years also full amount of sales had not been accounted for. He therefore added back Rs. 23,67,000 in the year 1944 and Rs. 24, 55,000 in the year 1945. The profit disclosed by the audited account in 1944 was Rs. 8,06,830 and in 1945, Rs.877,800. 2. The Income-tax Officer estimated these figures at Rs. 31,73,830 and Rs. 33,32,800 by estimating the rate of profit at 33 1/3 per cent. On sales, whereas the appellant has shown a gross profit at the rate of 20 per cent and 19 per cent respectively. On appeal, the Appellate Assistant Commissioner confirmed this order. On further appeal to the Tribunal the estimate was reduced to 28 per cent. mostly for the reasons given in the judgment of the Tribunal relating to the assessment for the year 1944-45. The relevant part of the judgment dealing with these assessments is in these terms : "The appellant had shown a gross profit rate of 20 per cent in 1945-46 assessment and 19 per cent in 1946-47 assessment. After the additions made by the Income-tax Officer are taken into consideration, the gross profit rete works out to 33 1/3 per cent. on the enhanced sales, for both these years. 3. The lists of cases of other cotton mills filed with us by the Departmental representative show that profits during these two years were a little less than the profits during the assessment year 1944- 45. Considering all the facts of these cases, we are of opinion that the additions made during these two years be reduced to Rs. 14,00,000 in 1945-46 and Rs. 14,10,000 in 1946- 47. This would reduce the gross profits to about 28 per cent on enhanced sales during both these years".
### Response:
1
### Explanation:
3. The lists of cases of other cotton mills filed with us by the Departmental representative show that profits during these two years were a little less than the profits during the assessment year 1944- 45. Considering all the facts of these cases, we are of opinion that the additions made during these two years be reduced to Rs. 14,00,000 in 1945-46 and Rs. 14,10,000 in 1946- 47. This would reduce the gross profits to about 28 per cent on enhanced sales during both these years".
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Bharat Coking Coal Limited Vs. Raneegunge Coal Association Limited and Others | learned Single Judge of that Court on a receivership application in a pending suit.2. The thirteenth respondent, the Punjab National Bank (hereinafter referred to as the Bank) instituted Suit 521 of 1974 in the High Court of Calcutta against the appellant, Bharat Coking Coal Ltd., and the first respondent, the Raneegunge Coal Association Ltd., and others praying for a decree for Rs. 1, 15, 76, 464.45 and a declaration that (a) all stocks of coal, plant and machinery and (b) present and future book-debts, outstanding moneys, bills and documents belonging to the first respondent had remained hypothecated with the Bank as security by way of first charge for payment of the Banks claims, and that the charge in respect of (a) and, if the law so compelled, in respect of (b) also now stood shifted to the amount receivable by the first respondent from the Central Government through the Coal Mines Authority. It also prayed for the appointment or a Receiver.3. The suit was brought on the allegations that the Raneegunge Coal Association enjoyed cash credit facilities with the Bank against hypothecation of its plant, machinery, spares and stores, stocks of coal, etc. Loans were also extended by the Bank to the Raneegunge Coal Association under two separate loan accounts. The Bank claimed a decree for the total of the amount due to it in the cash credit account and the loan accounts. It was pleaded that under the Coking Coal Mines (Nationalisation) Act, 1972, when all stocks of coal, plant and machinery, etc. on which the Bank had the First charge, stood transferred to and vested in the Central Government free from all encumbrances, the Banks first charge shifted from that security to the amount payable by the Central Government to the Raneegunge Coal Association through the Coal Mines Authority. It was also asserted that the other securities including all present and future book-debts, belonging to the Raneegunge Coal Association were not transferred to or vested in the Central Government, by reason of the Explanation to Section 3(j)(xi) of that Act and, therefore, the said securities remained subject to the first charge for payment of the amount due to the Bank. It was pleaded that in case those securities also were regarded as having vested in the Central Government free from all encumbrances, the said charge must likewise be taken to have shifted to the amount payable by the Central Government to the Raneegunge Coal Association through the Coal Mines Authority.4. It appears that during the pendency of the suit, a learned Single Judge of the High Court made an order dated December 8, 1975 restraining the Bank and the Raneegunge coal Association from withdrawing the compensation money payable to the latter, and appointing Joint Receivers to realize all unrealised book-debts of the Raneegunge Coal Association as well as book-debts realised by the Bank during the period October 17, 1971 to March 31, 1973. On appeal by Bharat Coking Coal, a Division Bench made an order dated July 6, 1976 modifying the order of the learned Single Judge. The Joint Receivers were appointed in respect of "all unrealised book-debts of respondent 1, Raneegunge Coal Association Ltd., as were outstanding on May 1, 1972 as also of such of those book-debts as have been realised by the appellant during the period May 1, 1972 and March 31, 1973. They are also appointed receivers to collect all book-debts outstanding on May 1, 1972 and not yet realised. The appellant will hand over to the Joint Receivers the amounts realised by them in respect of debts outstanding on May 1, 1972 during the period between May 1, 1972 and March 31, 1973 less the sum of Rs. 10, 12, 768 deposited by them with Punjab National Bank under the order of the Supreme Court dated July 6, 1973. The Joint Receivers are directed to deposit the moneys to be realised and collected by them in a Special fixed deposit account renewable from time to time with the Punjab National Bank, such money to be held by the Bank until further orders. The appellant is directed to furnish particulars of realization of the book-debts outstanding on May 1, 1972 up to March 31, 1973. That order is now the subject of appeal before us.5. We have heard the learned for Bharat Coking Coal, the Raneegunge Coal Association and the Bank. The point which finds favour with us is that the High Court erred in appointing the Joint Receivers in respect of the book-debts already realised by Bharat Coking Coal before the suit was filed. Those moneys were not made the subject of the suit and no relief has been claimed in the plaint in respect of them. A perusal of the plaint will show that the relief in respect of the book-debts relates to unrealised present and future book-debts. The question whether the realised book-debts could or could not be claimed by the Bank did not, it appears, engage the attention of the High Court when it made the impugned order. Whether the realised book-debts could be the subject of a claim by the Bank is a matter of debate, and we should have expected the order of the High Court to have contained some justification for directing Bharat Coking Coal to pay over the moneys realised by it to the Joint Receivers. Indeed, there has been a fair degree of contentious argument before us with reference to the various provisions of the Coking Coal Mines (Emergency Provisions) Act, 1971 and the Coking Coal Mines (Nationalisation) Act, 1972. We do not think it necessary or advisable to express our view on any of those questions at this stage. In acting on the plaint as it stand and without specifically finding that the moneys representing the realised book-debts could legitimately be claimed by the Bank, the High Court erred in making an order appointing Joint Receivers in respect of those moneys. We hold that the impugned order of the High Court is vitiated accordingly. | 1[ds]The point which finds favour with us is that the High Court erred in appointing the Joint Receivers in respect of thealready realised by Bharat Coking Coal before the suit was filed. Those moneys were not made the subject of the suit and no relief has been claimed in the plaint in respect of them. A perusal of the plaint will show that the relief in respect of therelates to unrealised present and futureThe question whether the realisedcould or could not be claimed by the Bank did not, it appears, engage the attention of the High Court when it made the impugned order. Whether the realisedcould be the subject of a claim by the Bank is a matter of debate, and we should have expected the order of the High Court to have contained some justification for directing Bharat Coking Coal to pay over the moneys realised by it to the Joint Receivers. Indeed, there has been a fair degree of contentious argument before us with reference to the various provisions of the Coking Coal Mines (Emergency Provisions) Act, 1971 and the Coking Coal Mines (Nationalisation) Act, 1972. We do not think it necessary or advisable to express our view on any of those questions at this stage. In acting on the plaint as it stand and without specifically finding that the moneys representing the realisedcould legitimately be claimed by the Bank, the High Court erred in making an order appointing Joint Receivers in respect of those moneys. We hold that the impugned order of the High Court is vitiated accordingly. | 1 | 1,142 | 284 | ### 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:
learned Single Judge of that Court on a receivership application in a pending suit.2. The thirteenth respondent, the Punjab National Bank (hereinafter referred to as the Bank) instituted Suit 521 of 1974 in the High Court of Calcutta against the appellant, Bharat Coking Coal Ltd., and the first respondent, the Raneegunge Coal Association Ltd., and others praying for a decree for Rs. 1, 15, 76, 464.45 and a declaration that (a) all stocks of coal, plant and machinery and (b) present and future book-debts, outstanding moneys, bills and documents belonging to the first respondent had remained hypothecated with the Bank as security by way of first charge for payment of the Banks claims, and that the charge in respect of (a) and, if the law so compelled, in respect of (b) also now stood shifted to the amount receivable by the first respondent from the Central Government through the Coal Mines Authority. It also prayed for the appointment or a Receiver.3. The suit was brought on the allegations that the Raneegunge Coal Association enjoyed cash credit facilities with the Bank against hypothecation of its plant, machinery, spares and stores, stocks of coal, etc. Loans were also extended by the Bank to the Raneegunge Coal Association under two separate loan accounts. The Bank claimed a decree for the total of the amount due to it in the cash credit account and the loan accounts. It was pleaded that under the Coking Coal Mines (Nationalisation) Act, 1972, when all stocks of coal, plant and machinery, etc. on which the Bank had the First charge, stood transferred to and vested in the Central Government free from all encumbrances, the Banks first charge shifted from that security to the amount payable by the Central Government to the Raneegunge Coal Association through the Coal Mines Authority. It was also asserted that the other securities including all present and future book-debts, belonging to the Raneegunge Coal Association were not transferred to or vested in the Central Government, by reason of the Explanation to Section 3(j)(xi) of that Act and, therefore, the said securities remained subject to the first charge for payment of the amount due to the Bank. It was pleaded that in case those securities also were regarded as having vested in the Central Government free from all encumbrances, the said charge must likewise be taken to have shifted to the amount payable by the Central Government to the Raneegunge Coal Association through the Coal Mines Authority.4. It appears that during the pendency of the suit, a learned Single Judge of the High Court made an order dated December 8, 1975 restraining the Bank and the Raneegunge coal Association from withdrawing the compensation money payable to the latter, and appointing Joint Receivers to realize all unrealised book-debts of the Raneegunge Coal Association as well as book-debts realised by the Bank during the period October 17, 1971 to March 31, 1973. On appeal by Bharat Coking Coal, a Division Bench made an order dated July 6, 1976 modifying the order of the learned Single Judge. The Joint Receivers were appointed in respect of "all unrealised book-debts of respondent 1, Raneegunge Coal Association Ltd., as were outstanding on May 1, 1972 as also of such of those book-debts as have been realised by the appellant during the period May 1, 1972 and March 31, 1973. They are also appointed receivers to collect all book-debts outstanding on May 1, 1972 and not yet realised. The appellant will hand over to the Joint Receivers the amounts realised by them in respect of debts outstanding on May 1, 1972 during the period between May 1, 1972 and March 31, 1973 less the sum of Rs. 10, 12, 768 deposited by them with Punjab National Bank under the order of the Supreme Court dated July 6, 1973. The Joint Receivers are directed to deposit the moneys to be realised and collected by them in a Special fixed deposit account renewable from time to time with the Punjab National Bank, such money to be held by the Bank until further orders. The appellant is directed to furnish particulars of realization of the book-debts outstanding on May 1, 1972 up to March 31, 1973. That order is now the subject of appeal before us.5. We have heard the learned for Bharat Coking Coal, the Raneegunge Coal Association and the Bank. The point which finds favour with us is that the High Court erred in appointing the Joint Receivers in respect of the book-debts already realised by Bharat Coking Coal before the suit was filed. Those moneys were not made the subject of the suit and no relief has been claimed in the plaint in respect of them. A perusal of the plaint will show that the relief in respect of the book-debts relates to unrealised present and future book-debts. The question whether the realised book-debts could or could not be claimed by the Bank did not, it appears, engage the attention of the High Court when it made the impugned order. Whether the realised book-debts could be the subject of a claim by the Bank is a matter of debate, and we should have expected the order of the High Court to have contained some justification for directing Bharat Coking Coal to pay over the moneys realised by it to the Joint Receivers. Indeed, there has been a fair degree of contentious argument before us with reference to the various provisions of the Coking Coal Mines (Emergency Provisions) Act, 1971 and the Coking Coal Mines (Nationalisation) Act, 1972. We do not think it necessary or advisable to express our view on any of those questions at this stage. In acting on the plaint as it stand and without specifically finding that the moneys representing the realised book-debts could legitimately be claimed by the Bank, the High Court erred in making an order appointing Joint Receivers in respect of those moneys. We hold that the impugned order of the High Court is vitiated accordingly.
### Response:
1
### Explanation:
The point which finds favour with us is that the High Court erred in appointing the Joint Receivers in respect of thealready realised by Bharat Coking Coal before the suit was filed. Those moneys were not made the subject of the suit and no relief has been claimed in the plaint in respect of them. A perusal of the plaint will show that the relief in respect of therelates to unrealised present and futureThe question whether the realisedcould or could not be claimed by the Bank did not, it appears, engage the attention of the High Court when it made the impugned order. Whether the realisedcould be the subject of a claim by the Bank is a matter of debate, and we should have expected the order of the High Court to have contained some justification for directing Bharat Coking Coal to pay over the moneys realised by it to the Joint Receivers. Indeed, there has been a fair degree of contentious argument before us with reference to the various provisions of the Coking Coal Mines (Emergency Provisions) Act, 1971 and the Coking Coal Mines (Nationalisation) Act, 1972. We do not think it necessary or advisable to express our view on any of those questions at this stage. In acting on the plaint as it stand and without specifically finding that the moneys representing the realisedcould legitimately be claimed by the Bank, the High Court erred in making an order appointing Joint Receivers in respect of those moneys. We hold that the impugned order of the High Court is vitiated accordingly.
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Issardas Daulat Ram And Others Vs. The Union Of India And Others | were long anterior to the enactment of that section and cannot obviously be governed by its provisions. For the reason that Section 178-A was in force at the stage of the appeals from the order of the Collector of Customs to the Central Board of Revenue and the Central Government and possibly under the impression that their case had been decided by throwing on them the burden of proving that the gold was not smuggled, the appellants raised in their Writ Petition to the Punjab High Court points regarding the construction and constitutionality of S. 178-A. When their petition was summarily dismissed these points were repeated in the petition for special leave to appeal filed in this Court, and special leave appears to have been granted mainly for the reason that the appeal involved the question of the constitutionality of S. 178-A of the Sea Customs Act. The appeal has for that reason been posted for hearing after the decision of this Court in Collector of Customs, Madras v. N. Sampathu Chetty, Civil Appeals Nos. 408 to 410 of 1960, etc., dated 25-9-1961 (not yet reported): (now reported in AIR 1962 SC 316 ), in which the validity of this section was considered and upheld.4. Section 178-A being put aside, it may be added, the only question now arising for decision is whether the order of the Collector of Customs holding the appellants gold seized at the refinery to be smuggled gold so as to be liable to confiscation under S. 167 (8) of the Sea Customs Act is vitiated by any error such as to call for interference under Art. 226 of the Constitution. Section 167 (8) runs in these terms:"167. The offences mentioned in the first column of the following schedule shall be punishable to the extent mentioned in the third column of the same with reference to such offences, respectively:-Offences Section of this Act to which offence has reference Penalties(8) If any goods, the importation or exportation of which is for the time being prohibited or restricted by or under Chapter IV of this Act, be imported into or exported from India contrary to such prohibition or restriction:18 and 19such goods shall be liable to confiscation and any person concerned in any such offence shall be liable to a penalty not exceeding three times the value of the goods or not exceeding one thousand rupees"............................................................................The finding of the Collector is recorded in paragraph 6 of his order in these terms:"Taking all the available evidence into consideration, I am satisfied that the gold bullion in question is of foreign origin and had been imported into India in contravention of Foreign Exchange Regulations Act and S. 19 of the Sea Customs Act thereby establishing an offence attracting the provisions of S. 167 (8) of the Sea Customs Act."It was not disputed that if there was material to support this decision the appeal must fail. The conclusion of the Collector involves findings on two distinct matters: (1) that the gold which was the subject of adjudication was of foreign origin, and (2) that the gold had been imported in contravention of the Foreign Exchange Regulations Act, Mr. Vishwanatha Sastri-learned Counsel for the appellant submitted that though the several facts mentioned by the Collector in Para. 5 of his order which form the basis of the finding recorded in Para. 6 might show that the gold was of foreign origin, there was no evidence before the Collector that this foreign gold had been imported after restrictions had been imposed in March 1947 by notification under the Foreign Exchange Regulations Act, a fact the onus to prove which was also on the department, and that in the absence of any material supporting that conclusion the finding that the gold was smuggled was unsustainable and that the confiscation should therefore be set aside.5. We find ourselves unable to accept the submission of learned Counsel. Though, no doubt, there was no direct evidence that the gold which was the subject of adjudication had come into the country after March 25, 1947 when the first notification under the Foreign Exchange Regulations Act placing a ban on the importation of gold was issued, it is not as this could not be deduced or inferred otherwise. There has been little or no importation of gold from outside the country since 1947.If the gold now in question had been imported earlier it would be extremely improbable that the gold would remain in the same shape of bars and with the same fineness as when imported after the passage of this length of time. It was precisely for this reason that at the stage of the enquiry before the Collector the principal point which was urged on behalf of the appellants was to deny that the seized gold was of foreign origin and it is the nature of the defence that accounts for the order of the Collector dealing almost wholly with the consideration of that question. In order to reach his finding about the gold being smuggled, the Collector has referred to the conduct of the appellants in connection with (a) the credibility of the story about the purchase of this gold from three parties, (b) the price at which the gold was stated to have been purchased which was less than the market price, and (c) the hurry exhibited in trying to get the gold melted at the refinery with a small bit of silver added so as to reduce the fineness of the gold and thus approximate the resultant product to licit gold found in the market. These were undoubtedly relevant pieces of evidence which bore on the question regarding the character of the gold, whether it was licit or illicit. Learned Counsel is, therefore, not right in his submission regarding the absence of material before the Collector to justify the finding recorded in Para. 6 we have set out earlier. The Writ Petition was therefore properly dismissed by the learned Judges of the High Court. | 0[ds]Though, no doubt, there was no direct evidence that the gold which was the subject of adjudication had come into the country after March 25, 1947 when the first notification under the Foreign Exchange Regulations Act placing a ban on the importation of gold was issued, it is not as this could not be deduced or inferred otherwise. There has been little or no importation of gold from outside the country since 1947.If the gold now in question had been imported earlier it would be extremely improbable that the gold would remain in the same shape of bars and with the same fineness as when imported after the passage of this length of time. It was precisely for this reason that at the stage of the enquiry before the Collector the principal point which was urged on behalf of the appellants was to deny that the seized gold was of foreign origin and it is the nature of the defence that accounts for the order of the Collector dealing almost wholly with the consideration of that question. In order to reach his finding about the gold being smuggled, the Collector has referred to the conduct of the appellants in connection with (a) the credibility of the story about the purchase of this gold from three parties, (b) the price at which the gold was stated to have been purchased which was less than the market price, and (c) the hurry exhibited in trying to get the gold melted at the refinery with a small bit of silver added so as to reduce the fineness of the gold and thus approximate the resultant product to licit gold found in the market. These were undoubtedly relevant pieces of evidence which bore on the question regarding the character of the gold, whether it was licit or illicit. Learned Counsel is, therefore, not right in his submission regarding the absence of material before the Collector to justify the finding recorded in Para. 6 we have set out earlier. The Writ Petition was therefore properly dismissed by the learned Judges of the High Court. | 0 | 1,526 | 377 | ### 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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were long anterior to the enactment of that section and cannot obviously be governed by its provisions. For the reason that Section 178-A was in force at the stage of the appeals from the order of the Collector of Customs to the Central Board of Revenue and the Central Government and possibly under the impression that their case had been decided by throwing on them the burden of proving that the gold was not smuggled, the appellants raised in their Writ Petition to the Punjab High Court points regarding the construction and constitutionality of S. 178-A. When their petition was summarily dismissed these points were repeated in the petition for special leave to appeal filed in this Court, and special leave appears to have been granted mainly for the reason that the appeal involved the question of the constitutionality of S. 178-A of the Sea Customs Act. The appeal has for that reason been posted for hearing after the decision of this Court in Collector of Customs, Madras v. N. Sampathu Chetty, Civil Appeals Nos. 408 to 410 of 1960, etc., dated 25-9-1961 (not yet reported): (now reported in AIR 1962 SC 316 ), in which the validity of this section was considered and upheld.4. Section 178-A being put aside, it may be added, the only question now arising for decision is whether the order of the Collector of Customs holding the appellants gold seized at the refinery to be smuggled gold so as to be liable to confiscation under S. 167 (8) of the Sea Customs Act is vitiated by any error such as to call for interference under Art. 226 of the Constitution. Section 167 (8) runs in these terms:"167. The offences mentioned in the first column of the following schedule shall be punishable to the extent mentioned in the third column of the same with reference to such offences, respectively:-Offences Section of this Act to which offence has reference Penalties(8) If any goods, the importation or exportation of which is for the time being prohibited or restricted by or under Chapter IV of this Act, be imported into or exported from India contrary to such prohibition or restriction:18 and 19such goods shall be liable to confiscation and any person concerned in any such offence shall be liable to a penalty not exceeding three times the value of the goods or not exceeding one thousand rupees"............................................................................The finding of the Collector is recorded in paragraph 6 of his order in these terms:"Taking all the available evidence into consideration, I am satisfied that the gold bullion in question is of foreign origin and had been imported into India in contravention of Foreign Exchange Regulations Act and S. 19 of the Sea Customs Act thereby establishing an offence attracting the provisions of S. 167 (8) of the Sea Customs Act."It was not disputed that if there was material to support this decision the appeal must fail. The conclusion of the Collector involves findings on two distinct matters: (1) that the gold which was the subject of adjudication was of foreign origin, and (2) that the gold had been imported in contravention of the Foreign Exchange Regulations Act, Mr. Vishwanatha Sastri-learned Counsel for the appellant submitted that though the several facts mentioned by the Collector in Para. 5 of his order which form the basis of the finding recorded in Para. 6 might show that the gold was of foreign origin, there was no evidence before the Collector that this foreign gold had been imported after restrictions had been imposed in March 1947 by notification under the Foreign Exchange Regulations Act, a fact the onus to prove which was also on the department, and that in the absence of any material supporting that conclusion the finding that the gold was smuggled was unsustainable and that the confiscation should therefore be set aside.5. We find ourselves unable to accept the submission of learned Counsel. Though, no doubt, there was no direct evidence that the gold which was the subject of adjudication had come into the country after March 25, 1947 when the first notification under the Foreign Exchange Regulations Act placing a ban on the importation of gold was issued, it is not as this could not be deduced or inferred otherwise. There has been little or no importation of gold from outside the country since 1947.If the gold now in question had been imported earlier it would be extremely improbable that the gold would remain in the same shape of bars and with the same fineness as when imported after the passage of this length of time. It was precisely for this reason that at the stage of the enquiry before the Collector the principal point which was urged on behalf of the appellants was to deny that the seized gold was of foreign origin and it is the nature of the defence that accounts for the order of the Collector dealing almost wholly with the consideration of that question. In order to reach his finding about the gold being smuggled, the Collector has referred to the conduct of the appellants in connection with (a) the credibility of the story about the purchase of this gold from three parties, (b) the price at which the gold was stated to have been purchased which was less than the market price, and (c) the hurry exhibited in trying to get the gold melted at the refinery with a small bit of silver added so as to reduce the fineness of the gold and thus approximate the resultant product to licit gold found in the market. These were undoubtedly relevant pieces of evidence which bore on the question regarding the character of the gold, whether it was licit or illicit. Learned Counsel is, therefore, not right in his submission regarding the absence of material before the Collector to justify the finding recorded in Para. 6 we have set out earlier. The Writ Petition was therefore properly dismissed by the learned Judges of the High Court.
### Response:
0
### Explanation:
Though, no doubt, there was no direct evidence that the gold which was the subject of adjudication had come into the country after March 25, 1947 when the first notification under the Foreign Exchange Regulations Act placing a ban on the importation of gold was issued, it is not as this could not be deduced or inferred otherwise. There has been little or no importation of gold from outside the country since 1947.If the gold now in question had been imported earlier it would be extremely improbable that the gold would remain in the same shape of bars and with the same fineness as when imported after the passage of this length of time. It was precisely for this reason that at the stage of the enquiry before the Collector the principal point which was urged on behalf of the appellants was to deny that the seized gold was of foreign origin and it is the nature of the defence that accounts for the order of the Collector dealing almost wholly with the consideration of that question. In order to reach his finding about the gold being smuggled, the Collector has referred to the conduct of the appellants in connection with (a) the credibility of the story about the purchase of this gold from three parties, (b) the price at which the gold was stated to have been purchased which was less than the market price, and (c) the hurry exhibited in trying to get the gold melted at the refinery with a small bit of silver added so as to reduce the fineness of the gold and thus approximate the resultant product to licit gold found in the market. These were undoubtedly relevant pieces of evidence which bore on the question regarding the character of the gold, whether it was licit or illicit. Learned Counsel is, therefore, not right in his submission regarding the absence of material before the Collector to justify the finding recorded in Para. 6 we have set out earlier. The Writ Petition was therefore properly dismissed by the learned Judges of the High Court.
|
CHIEF EXECUTIVE OFFICER AND VICE CHAIRMAN GUJARAT MARITIME BOARD Vs. ASIATIC STEEL INDUSTRIES LTD AND ORS | for small and trivial matters, people and sometimes the Central and the State Governments and their instrumentalities like banks, nationalised or private, come to courts may be due to ego clash or to save the officers skin. The judicial system is overburdened which naturally causes delay in adjudication of disputes. Mediation Centres opened in various parts of our country have, to some extent, eased the burden of the courts but we are still in the tunnel and the light is far away. On more than one occasion, this Court has reminded the Central Government, the State Governments and other instrumentalities as well as to the various banking institutions to take earnest efforts to resolve the disputes at their end. At times, some give-and-take attitude should be adopted or both will sink. Unless serious questions of law of general importance arise for consideration or a question which affects a large number of persons or the stakes are very high, the courts jurisdiction cannot be invoked for resolution of small and trivial matters. We are really disturbed by the manner in which those types of matters are being brought to courts even at the level of the Supreme Court of India and this case falls in that category. 39. In State of A.P. v. Pioneer Builders (2006) 12 SCC 119 this Court referred to the 27th Report of the Law Commission on the Code of Civil Procedure, and held as follows: 14. From a bare reading of sub-section (1) of Section 80, it is plain that subject to what is provided in sub-section (2) thereof, no suit can be filed against the Government or a public officer unless requisite notice under the said provision has been served on such Government or public officer, as the case may be. It is well settled that before the amendment of Section 80 the provisions of unamended Section 80 admitted of no implications and exceptions whatsoever and are express, explicit and mandatory. The section imposes a statutory and unqualified obligation upon the court and in the absence of compliance with Section 80, the suit is not maintainable. (See Bhagchand Dagadusa v. Secy. of State for India in Council [Bhagchand Dagadusa v. Secy. of State for India in Council, 1927 SCC OnLine PC 48 : (1926-27) 54 IA 338 : AIR 1927 PC 176 ] ; Sawai Singhai Nirmal Chand v. Union of India [Sawai Singhai Nirmal Chand v. Union of India, (1966) 1 SCR 986 : AIR 1966 SC 1068 ] and Bihari Chowdhary v. State of Bihar [Bihari Chowdhary v. State of Bihar, (1984) 2 SCC 627 ] .) The service of notice under Section 80 is, thus, a condition precedent for the institution of a suit against the Government or a public officer. The legislative intent of the Section is to give the Government sufficient notice of the suit, which is proposed to be filed against it so that it may reconsider the decision and decide for itself whether the claim made could be accepted or not. As observed in Bihari Chowdhary [Bihari Chowdhary v. State of Bihar, (1984) 2 SCC 627 ], the object of the Section is the advancement of justice and the securing of public good by avoidance of unnecessary litigation. 15. It seems that the provision did not achieve the desired results inasmuch as it is a matter of common experience that hardly any matter is settled by the Government or the public officer concerned by making use of the opportunity afforded by the said provisions. In most of the cases, notice given under Section 80 remains unanswered. In its 14th Report (reiterated in the 27th and 54th Reports), the Law Commission, while noting that the provisions of this section had worked a great hardship in a large number of cases where immediate relief by way of injunction against the Government or a public officer was necessary in the interests of justice, had recommended omission of the Section. However, the Joint Committee of Parliament, to which the Amendment Bill, 1974 was referred, did not agree with the Law Commission and recommended retention of Section 80 with necessary modifications/relaxations. 16. Thus, in conformity therewith, by the Code of Civil Procedure (Amendment) Act, 1976 the existing Section 80 was renumbered as Section 80(1) and sub-sections (2) and (3) were inserted with effect from 1-2-1977. Sub-section (2) carved out an exception to the mandatory rule that no suit can be filed against the Government or a public officer unless two months notice has been served on such Government or public officer. The provision mitigates the rigours of sub-section (1) and empowers the court to allow a person to institute a suit without serving any notice under subsection (1) in case it finds that the suit is for the purpose of obtaining an urgent and immediate relief against the Government or a public officer. But, the court cannot grant relief under the sub-section unless a reasonable opportunity is given to the Government or public officer to show cause in respect of the relief prayed for. The proviso to the said sub-section enjoins that in case the court is of the opinion that no urgent and immediate relief should be granted, it shall return the plaint for presentation to it after complying with the requirements of sub-section (1). Sub-section (3), though not relevant for the present case, seeks to bring in the rule of substantial compliance and tends to relax the rigour of sub-section (1). 40. In this case, conduct of the Board betrays a callous and indifferent attitude, which in effect is that if Asiatic Steel wished for its money to be returned, it had to approach the court. This was despite its knowledge that at least three other identically placed entities had asked for return of money and, upon approaching the court, were refunded the amounts given by them promptly. In view of these facts, nothing prevented the Board from deciding to refund the amount, without forcing Asiatic Steel to approach the court. | 0[ds]24. Asiatic Steel was the highest bidder in an auction for five shipbreaking plots, held on 08.11.1994. The Board received payment of the earnest money deposit of Rs. 5,00,000/- on this day. Plot V-10 was allotted to Respondent No. 1 (Asiatic Steel Industries Ltd.). M/s Ganpatrai were the Indian shareholders of Asiatic Steel, while M/s Industeel was a foreign shareholder based in Singapore. The upset premium was remitted by Industeel in US currency (dollars $), on 22.03.1995.25. The minutes of the meeting dated 23.02.1995 record that the shipbreakers (including Asiatic Steel herein), informed the Board that certain rocks were required to be removed along plots V-6 to V-10, which hinder the beaching of ships. The Board agreed to prepare an estimate and invite tenders for the removal of these rocks.27. Such being the position, it was nobodys case that Asiatic Steel was unaware about the site conditions. This is particularly important because it was willing to commit a substantial amount in foreign exchange for the plot which it bid for and was eventually granted. Likewise, the requisite undertaking too was furnished on its behalf. It is in this background of circumstances, that the claim for interest for the period in question requires examination.28. The record relied upon by Asiatic Steel is in the form of three office orders issued by the Board. The first office order is dated 06.05.1996. This order relates to Nyankaran Investment and Leasing Pvt. Ltd. This company had successfully bid for Plot Number V-7 and paid Rs. 2.74 crores. This company had deposited the entire amount on 23.03.1995. Upon being dissatisfied with the plot, the company filed CA 8287/1995, in proceedings under Article 226 of the Constitution of India, before the Gujarat High Court. Having regard to the observations made by the High Court, the board sanctioned refund of the entire amount along with 12% interest, by its order dated 06.05.1996. The amount paid by the Board as interest was Rs. 22.80 lakhs. The second instance relates to Svaminarayan Shipbreaking (P) Ltd, Surat, which had bid for a plot (V-8) and paid Rs. 50 lakhs in two equal instalments. This company filed proceedings before the Gujarat High Court, (i.e. CA 3122/1995). The Board, therefore decided to refund the principal along with interest at 12% per annum for two different periods, based on the deposit of the two payments of Rs. 25 lakhs. The total interest sanctioned on 08.08.1996 (and later paid) was Rs.3.55 lakhs. The last instance is of Maaz Marine (P) Ltd, Surat, which had bid for a plot (V-9) and paid the instalments. This company filed proceedings before the Gujarat High Court, (i.e. CA 3211/1995). The Board, therefore decided to refund the principal along with interest @ 9% per annum for the period, based on the deposit of the payment of Rs. 25 lakhs. The total interest sanctioned on 08.08.1996 (and later paid) was Rs. 2.12 lakhs. This amount was sanctioned by office order dated 27.03.2000, even though the Board had decided to refund earlier (on 21.03.1996, due to the court proceedings and orders); however, the amount was sanctioned later, awaiting the decision of the civil court, in an inter se dispute between the directors of Mazz Marine, (i.e. in Suit No. 1200/1997). Upon the decision in that case, the amount was released, including the interest at 9% p.a. for one year.29. The correspondence on the record reveals that the last payment towards the plot was tendered by Asiatic Steel under cover of a letter dated 22.03.1995 for an amount of US$ 1,153,000/-. The other letters placed on record are the one dated 23.04.1995, to the Board indicating that the full payment for the consideration of Rs. 3,61,20,000/- had been made towards a plot. Other than this, in the writ petition, Asiatic Steel argued that it made efforts several times to ask the board to clear the beachfront rocks to make the plot functional. It was also argued that three other entities which had bid for and secured different plots were dissatisfied by the Boards inaction and had approached the High Court. As a result, the High Court passed orders which led to refund of the amounts deposited by those concerns, with some interest. On the record, the minutes of a discussion presided over by the Chief Minister of the state regarding outstanding amounts of premium payable by plot holders in the shipbreaking yard, dated 29.04.1998, would show that the state authorities were pressing for payment of overdue premium instalments.31. The contemporaneous situation, and the correspondence between Asiatic Steel and the Board after the entire amount was deposited, reveals that other concerns approached the court seeking refund of their principal amounts, with interest, which forced the Board to take a decision and comply. The final decision by Asiatic Steel demanding refund was later, in May, 1998. In the meanwhile, the other concerns, which had bid successfully for three plots had approached the court (in 1995) and the Board had decided to refund the amounts with one years interest. Asiatic Steel, therefore, for reasons best known to it, approached the court for refund (which it was undoubtedly entitled) to and interest, first by filing a suit in 2001.32. In this courts opinion, the claim for interest by Asiatic Steel – and the response of the Board, on that issue, is to be judged in the light of both parties conduct and what was expected of the Board as a state instrumentality. The claim in this case is essentially a monetary one, and would ordinarily be premised upon breach of contract. Asiatic Steel, therefore, correctly approached the civil court by filing a suit (Suit No. 2961/2001) . Later, apparently it was advised to resort to proceedings under Article 226 of the Constitution of India. When its writ petition was considered, the suit was permitted to be withdrawn; the High Court directed the Board to deposit the entire principal amount, with interest at 10% per annum. (By its order dated 26.02.2002) By the final impugned judgment, that order was confirmed. In an earlier order, the court had in fact crystallized the precise issue, to be whether interest was payable from 24.03.1995 or from 19.05.1998, or whether it was payable from the latter date, till the date of deposit in court, i.e., 15.04.2002.33. Two important aspects need to be noticed at this stage: first, on the one hand, that Asiatic Steel was aware of the condition of the plot, at an early stage, when it bid for it. In this regard, its conduct is to be judged in the light of the Boards inaction in regard to the unfitness of the allotted site, as in the case of the other concerns. Two, Asiatic Steel was no better and no worse than the other plot lessees, who demanded refund of their amounts. The difference between them, and Asiatic Steel was that the latter chose to demand refund on 19.05.1998. Asiatic Steels final letter discloses its awareness that the other concerns approached the court earlier, but that it waited as it wished to have the issue resolved amicably, rather than moving the court for relief.34. In the opinion of this court, that fact that Asiatic Steel and other concerns bid for the plots knowing the state they were in, cannot be disputed. However, the conduct of all the successful bidders consistently suggests that they expected that the plots would be given in usable condition, within reasonable time. Clearly, the Board could not and most certainly did not rectify the conditions by removing the beachfront rocks. The Board is not forthcoming about the reasons for its inaction. It urged two defences in its reply to the writ petition: one, that the dispute was in the realm of contract and two, that even though like in other cases, the Board was prepared to consider a refund, Asiatic Steel was a joint venture company. These, in the opinion of this court are wholly insubstantial reasons.35. It is clear from the Boards conduct that it never responded to the letters written by Asiatic Steel; at least, no reply has been placed on record. Even Asiatic Steels request for permission to carry-out the necessary clearance work at the cost of the board, was not responded to - either positively or negatively. Further, whenever any bidder approached the court complaining that the plot allotted was unusable, the Board decided, mostly contemporaneously, to refund the amount, even with interest. In the case of Asiatic Steel, however, when the demand was made for refund on 19.05.1998, the Board did not act, forcing the company to approach the court, firstly through a civil suit which was later withdrawn, and then in a writ petition.36. In the opinion of this court, the Boards complete silence in responding to Asiatic Steels demand for refund, coupled with the absence of any material placed on record by it suggesting that the complaints had no substance leaves it vulnerable to the charge of complete arbitrariness. The Boards conduct or indifference in regard to the refund sought (in respect of which there was no meaningful argument on its part before the High Court) can be only on the premise that it wished the parties to approach the court, till a decision could be taken to refund the amounts received by it.37. In this courts considered view, the Boards action is entirely unacceptable. As a public body charged to uphold the rule of law, its conduct had to be fair and not arbitrary. If it had any meaningful justification for withholding the amount received from Asiatic Steel, such justification has not been highlighted ever. On the other hand, its conduct reveals that it wished that the parties should approach the court, before it took a decision. This behavior of deliberate inaction to force a citizen or a commercial concern to approach the court, rather than take a decision, justified on the anvil of reason (in the present case, a decision to refund) means that the Board acted in a discriminatory manner.39. In State of A.P. v. Pioneer Builders (2006) 12 SCC 119 this Court referred to the 27th Report of the Law Commission on the Code of Civil Procedure, and held as follows:14. From a bare reading of sub-section (1) of Section 80, it is plain that subject to what is provided in sub-section (2) thereof, no suit can be filed against the Government or a public officer unless requisite notice under the said provision has been served on such Government or public officer, as the case may be. It is well settled that before the amendment of Section 80 the provisions of unamended Section 80 admitted of no implications and exceptions whatsoever and are express, explicit and mandatory. The section imposes a statutory and unqualified obligation upon the court and in the absence of compliance with Section 80, the suit is not maintainable. (See Bhagchand Dagadusa v. Secy. of State for India in Council [Bhagchand Dagadusa v. Secy. of State for India in Council, 1927 SCC OnLine PC 48 : (1926-27) 54 IA 338 : AIR 1927 PC 176 ] ; Sawai Singhai Nirmal Chand v. Union of India [Sawai Singhai Nirmal Chand v. Union of India, (1966) 1 SCR 986 : AIR 1966 SC 1068 ] and Bihari Chowdhary v. State of Bihar [Bihari Chowdhary v. State of Bihar, (1984) 2 SCC 627 ] .) The service of notice under Section 80 is, thus, a condition precedent for the institution of a suit against the Government or a public officer. The legislative intent of the Section is to give the Government sufficient notice of the suit, which is proposed to be filed against it so that it may reconsider the decision and decide for itself whether the claim made could be accepted or not. As observed in Bihari Chowdhary [Bihari Chowdhary v. State of Bihar, (1984) 2 SCC 627 ], the object of the Section is the advancement of justice and the securing of public good by avoidance of unnecessary litigation.15. It seems that the provision did not achieve the desired results inasmuch as it is a matter of common experience that hardly any matter is settled by the Government or the public officer concerned by making use of the opportunity afforded by the said provisions. In most of the cases, notice given under Section 80 remains unanswered. In its 14th Report (reiterated in the 27th and 54th Reports), the Law Commission, while noting that the provisions of this section had worked a great hardship in a large number of cases where immediate relief by way of injunction against the Government or a public officer was necessary in the interests of justice, had recommended omission of the Section. However, the Joint Committee of Parliament, to which the Amendment Bill, 1974 was referred, did not agree with the Law Commission and recommended retention of Section 80 with necessary modifications/relaxations.16. Thus, in conformity therewith, by the Code of Civil Procedure (Amendment) Act, 1976 the existing Section 80 was renumbered as Section 80(1) and sub-sections (2) and (3) were inserted with effect from 1-2-1977. Sub-section (2) carved out an exception to the mandatory rule that no suit can be filed against the Government or a public officer unless two months notice has been served on such Government or public officer. The provision mitigates the rigours of sub-section (1) and empowers the court to allow a person to institute a suit without serving any notice under subsection (1) in case it finds that the suit is for the purpose of obtaining an urgent and immediate relief against the Government or a public officer. But, the court cannot grant relief under the sub-section unless a reasonable opportunity is given to the Government or public officer to show cause in respect of the relief prayed for. The proviso to the said sub-section enjoins that in case the court is of the opinion that no urgent and immediate relief should be granted, it shall return the plaint for presentation to it after complying with the requirements of sub-section (1). Sub-section (3), though not relevant for the present case, seeks to bring in the rule of substantial compliance and tends to relax the rigour of sub-section (1).40. In this case, conduct of the Board betrays a callous and indifferent attitude, which in effect is that if Asiatic Steel wished for its money to be returned, it had to approach the court. This was despite its knowledge that at least three other identically placed entities had asked for return of money and, upon approaching the court, were refunded the amounts given by them promptly. In view of these facts, nothing prevented the Board from deciding to refund the amount, without forcing Asiatic Steel to approach the court. | 0 | 6,360 | 2,808 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
for small and trivial matters, people and sometimes the Central and the State Governments and their instrumentalities like banks, nationalised or private, come to courts may be due to ego clash or to save the officers skin. The judicial system is overburdened which naturally causes delay in adjudication of disputes. Mediation Centres opened in various parts of our country have, to some extent, eased the burden of the courts but we are still in the tunnel and the light is far away. On more than one occasion, this Court has reminded the Central Government, the State Governments and other instrumentalities as well as to the various banking institutions to take earnest efforts to resolve the disputes at their end. At times, some give-and-take attitude should be adopted or both will sink. Unless serious questions of law of general importance arise for consideration or a question which affects a large number of persons or the stakes are very high, the courts jurisdiction cannot be invoked for resolution of small and trivial matters. We are really disturbed by the manner in which those types of matters are being brought to courts even at the level of the Supreme Court of India and this case falls in that category. 39. In State of A.P. v. Pioneer Builders (2006) 12 SCC 119 this Court referred to the 27th Report of the Law Commission on the Code of Civil Procedure, and held as follows: 14. From a bare reading of sub-section (1) of Section 80, it is plain that subject to what is provided in sub-section (2) thereof, no suit can be filed against the Government or a public officer unless requisite notice under the said provision has been served on such Government or public officer, as the case may be. It is well settled that before the amendment of Section 80 the provisions of unamended Section 80 admitted of no implications and exceptions whatsoever and are express, explicit and mandatory. The section imposes a statutory and unqualified obligation upon the court and in the absence of compliance with Section 80, the suit is not maintainable. (See Bhagchand Dagadusa v. Secy. of State for India in Council [Bhagchand Dagadusa v. Secy. of State for India in Council, 1927 SCC OnLine PC 48 : (1926-27) 54 IA 338 : AIR 1927 PC 176 ] ; Sawai Singhai Nirmal Chand v. Union of India [Sawai Singhai Nirmal Chand v. Union of India, (1966) 1 SCR 986 : AIR 1966 SC 1068 ] and Bihari Chowdhary v. State of Bihar [Bihari Chowdhary v. State of Bihar, (1984) 2 SCC 627 ] .) The service of notice under Section 80 is, thus, a condition precedent for the institution of a suit against the Government or a public officer. The legislative intent of the Section is to give the Government sufficient notice of the suit, which is proposed to be filed against it so that it may reconsider the decision and decide for itself whether the claim made could be accepted or not. As observed in Bihari Chowdhary [Bihari Chowdhary v. State of Bihar, (1984) 2 SCC 627 ], the object of the Section is the advancement of justice and the securing of public good by avoidance of unnecessary litigation. 15. It seems that the provision did not achieve the desired results inasmuch as it is a matter of common experience that hardly any matter is settled by the Government or the public officer concerned by making use of the opportunity afforded by the said provisions. In most of the cases, notice given under Section 80 remains unanswered. In its 14th Report (reiterated in the 27th and 54th Reports), the Law Commission, while noting that the provisions of this section had worked a great hardship in a large number of cases where immediate relief by way of injunction against the Government or a public officer was necessary in the interests of justice, had recommended omission of the Section. However, the Joint Committee of Parliament, to which the Amendment Bill, 1974 was referred, did not agree with the Law Commission and recommended retention of Section 80 with necessary modifications/relaxations. 16. Thus, in conformity therewith, by the Code of Civil Procedure (Amendment) Act, 1976 the existing Section 80 was renumbered as Section 80(1) and sub-sections (2) and (3) were inserted with effect from 1-2-1977. Sub-section (2) carved out an exception to the mandatory rule that no suit can be filed against the Government or a public officer unless two months notice has been served on such Government or public officer. The provision mitigates the rigours of sub-section (1) and empowers the court to allow a person to institute a suit without serving any notice under subsection (1) in case it finds that the suit is for the purpose of obtaining an urgent and immediate relief against the Government or a public officer. But, the court cannot grant relief under the sub-section unless a reasonable opportunity is given to the Government or public officer to show cause in respect of the relief prayed for. The proviso to the said sub-section enjoins that in case the court is of the opinion that no urgent and immediate relief should be granted, it shall return the plaint for presentation to it after complying with the requirements of sub-section (1). Sub-section (3), though not relevant for the present case, seeks to bring in the rule of substantial compliance and tends to relax the rigour of sub-section (1). 40. In this case, conduct of the Board betrays a callous and indifferent attitude, which in effect is that if Asiatic Steel wished for its money to be returned, it had to approach the court. This was despite its knowledge that at least three other identically placed entities had asked for return of money and, upon approaching the court, were refunded the amounts given by them promptly. In view of these facts, nothing prevented the Board from deciding to refund the amount, without forcing Asiatic Steel to approach the court.
### Response:
0
### Explanation:
in responding to Asiatic Steels demand for refund, coupled with the absence of any material placed on record by it suggesting that the complaints had no substance leaves it vulnerable to the charge of complete arbitrariness. The Boards conduct or indifference in regard to the refund sought (in respect of which there was no meaningful argument on its part before the High Court) can be only on the premise that it wished the parties to approach the court, till a decision could be taken to refund the amounts received by it.37. In this courts considered view, the Boards action is entirely unacceptable. As a public body charged to uphold the rule of law, its conduct had to be fair and not arbitrary. If it had any meaningful justification for withholding the amount received from Asiatic Steel, such justification has not been highlighted ever. On the other hand, its conduct reveals that it wished that the parties should approach the court, before it took a decision. This behavior of deliberate inaction to force a citizen or a commercial concern to approach the court, rather than take a decision, justified on the anvil of reason (in the present case, a decision to refund) means that the Board acted in a discriminatory manner.39. In State of A.P. v. Pioneer Builders (2006) 12 SCC 119 this Court referred to the 27th Report of the Law Commission on the Code of Civil Procedure, and held as follows:14. From a bare reading of sub-section (1) of Section 80, it is plain that subject to what is provided in sub-section (2) thereof, no suit can be filed against the Government or a public officer unless requisite notice under the said provision has been served on such Government or public officer, as the case may be. It is well settled that before the amendment of Section 80 the provisions of unamended Section 80 admitted of no implications and exceptions whatsoever and are express, explicit and mandatory. The section imposes a statutory and unqualified obligation upon the court and in the absence of compliance with Section 80, the suit is not maintainable. (See Bhagchand Dagadusa v. Secy. of State for India in Council [Bhagchand Dagadusa v. Secy. of State for India in Council, 1927 SCC OnLine PC 48 : (1926-27) 54 IA 338 : AIR 1927 PC 176 ] ; Sawai Singhai Nirmal Chand v. Union of India [Sawai Singhai Nirmal Chand v. Union of India, (1966) 1 SCR 986 : AIR 1966 SC 1068 ] and Bihari Chowdhary v. State of Bihar [Bihari Chowdhary v. State of Bihar, (1984) 2 SCC 627 ] .) The service of notice under Section 80 is, thus, a condition precedent for the institution of a suit against the Government or a public officer. The legislative intent of the Section is to give the Government sufficient notice of the suit, which is proposed to be filed against it so that it may reconsider the decision and decide for itself whether the claim made could be accepted or not. As observed in Bihari Chowdhary [Bihari Chowdhary v. State of Bihar, (1984) 2 SCC 627 ], the object of the Section is the advancement of justice and the securing of public good by avoidance of unnecessary litigation.15. It seems that the provision did not achieve the desired results inasmuch as it is a matter of common experience that hardly any matter is settled by the Government or the public officer concerned by making use of the opportunity afforded by the said provisions. In most of the cases, notice given under Section 80 remains unanswered. In its 14th Report (reiterated in the 27th and 54th Reports), the Law Commission, while noting that the provisions of this section had worked a great hardship in a large number of cases where immediate relief by way of injunction against the Government or a public officer was necessary in the interests of justice, had recommended omission of the Section. However, the Joint Committee of Parliament, to which the Amendment Bill, 1974 was referred, did not agree with the Law Commission and recommended retention of Section 80 with necessary modifications/relaxations.16. Thus, in conformity therewith, by the Code of Civil Procedure (Amendment) Act, 1976 the existing Section 80 was renumbered as Section 80(1) and sub-sections (2) and (3) were inserted with effect from 1-2-1977. Sub-section (2) carved out an exception to the mandatory rule that no suit can be filed against the Government or a public officer unless two months notice has been served on such Government or public officer. The provision mitigates the rigours of sub-section (1) and empowers the court to allow a person to institute a suit without serving any notice under subsection (1) in case it finds that the suit is for the purpose of obtaining an urgent and immediate relief against the Government or a public officer. But, the court cannot grant relief under the sub-section unless a reasonable opportunity is given to the Government or public officer to show cause in respect of the relief prayed for. The proviso to the said sub-section enjoins that in case the court is of the opinion that no urgent and immediate relief should be granted, it shall return the plaint for presentation to it after complying with the requirements of sub-section (1). Sub-section (3), though not relevant for the present case, seeks to bring in the rule of substantial compliance and tends to relax the rigour of sub-section (1).40. In this case, conduct of the Board betrays a callous and indifferent attitude, which in effect is that if Asiatic Steel wished for its money to be returned, it had to approach the court. This was despite its knowledge that at least three other identically placed entities had asked for return of money and, upon approaching the court, were refunded the amounts given by them promptly. In view of these facts, nothing prevented the Board from deciding to refund the amount, without forcing Asiatic Steel to approach the court.
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M/S. J. K. Jute Mills Co. Ltd Vs. The State Of Uttar Pradesh And Another | with the primary liability of the seller to pay the sales tax. This is further made clear by the fact that the registered dealer need not, if he so pleases or chooses, collect the tax from the purchaser and sometimes by reason of competition with other registered dealers he may find it profitable to sell his goods and to retain his old customers even at the sacrifice of the sales tax. This also makes it clear that the sales tax need not be passed on to the purchasers and this fact does not alter the real nature of the tax which, by the express provisions of the law, is cast upon the seller. The buyer is under no liability to pay sales tax in addition to the agreed sale price unless the contract specifically provides otherwise. See Love v. Norman Wright (Builders) Ltd., 1944-1 KB 484. If that be the true view of sales tax then the Bihar Legislature acting within its own legislative field had the powers of a sovereign legislature and could make its law prospectively as well as retrospectively." (pp 1378-1379 (of SCR): (p. 463 of AIR) ).14. The decision of this court in Buchirajalingam v. State of Hyderabad, AIR 1958 SC 756 at pp. 759-60, is also to the same effect.15. The power of a legislature to enact a law with reference to a topic entrusted to it, is, as already stated, unqualified subject only to any limitation imposed by the Constitution. In the exercise of such a power, it will be competent for the legislature to enact a law, which is either prospective or retrospective. In Union of India v. Madan Gopal, 1954 SCR 541 : (AIR 1954 SC 158 ), it was held by this court that the power to impose tax on income under entry 82 of List I in Schedule VII to the Constitution, comprehended the power to impose income-tax with retrospective operation even for a period prior to the Constitution. The position will be the same as regards laws imposing tax on sale of goods, In M. P. V. Sundararamier and Co. v. State of Andhra Pradesh, 1958 SCR 1422: (AIR 1958 SC 468 ), this court had occasion to consider the validity of a law enacted by Parliament giving retrospectively operation to laws passed by the State legislatures imposing a tax on certain sales in the course of inter-State trade. One of the contentions raised against the validity of this legislation was that, having regard to the terms of Art. 286 (2), the retrospective legislation was not within the competence of Parliament. In rejecting this contention, the court observed:"Article 286 (2) merely provides that no law of a State shall impose tax on inter-State sales except in so far as Parliament may by law otherwise provide. It places no restrictions on the nature of the law to be passed by Parliament. On the other hand, the words in so far as clearly leave it to Parliament to decide on the form and nature of the law to be enacted by it. What is material to observe is that the power conferred on Parliament under Art.286(2) is a legislative power, and such a power conferred on a Sovereign Legislature carries with it authority to enact a law either prospectively or retrospectively, unless there can be found in the Constitution itself a limitation on that power." (p. 1460 (of SCR): (p. 486 of AIR)).And it was held that the law was within the competence of the legislature. We must, therefore, hold that the Validation Act is not ultra vires the powers of the legislature under entry 54, for the reason that it operates retrospectively.16. It was finally urged on the basis of Ss. 8-A, 14 and rule 23 of the U. P. Sales Tax Act that they contemplated only a prospective legislation and that those sections would be impossible of compliance under the present legislation. This is a consideration which is wholly foreign to the present question. The point which we have got to decide is whether the Validation Act is ultra vires. That has to be determined solely on the construction of entry 54 in List II in the seventh Schedule, and any other provisions of the Constitution bearing on the question. Even assuming that the provisions of the U. P. Sales Tax Act XV of 1948 contemplate a levy of tax in futuro that does not affect the power of the Legislature under Entry 54 to enact a law with retrospective operation. It can only result in those provisions being unenforceable as regards the levy under the impugned notification. Dealing with a similar contention in 1958 SCR 1422: (AIR 1958 SC 468 ), this court observed:"It is also contended that under the Sales Tax Acts, the levy of tax is annual and the rules contemplate submission of quarterly returns and payment of taxes every quarter on the admitted turnover, and that a conditional legislation under which payment of tax will become enforceable in futuro would be inconsistent with the scheme of the Act and the rules. But this argument, when examined, comes to no more than this that the existing rules do not provide a machinery for the levy and the collection of taxes which might become payable in future, when Parliament lifts the ban. Assuming that that is the true position, that does not affect the factum of the imposition, which is the only point with which we are now concerned. That the States will have to frame rules for realising the tax which becomes now payable is not a ground for holding that there is, in fact, no imposition of tax." (p. 1454 (of SCR): (p. 483 of AIR) ).17. None of the grounds urged by the petitioner in support of the contention that the Validation Act is ultra vires can be sustained. In the result we must hold that the Validation Act is intra vires, and the impugned notification dated March 31, 1956, stands validated by it. | 0[ds]We are wholly unable to appreciate this contention. The object of the legislation as stated in the long title and in the preamble to the Act was to validate the impugned notification in relation to the amended section. Schedule B to the Act expressly mentions that notification. And if we are now to accede to the contention of the petitioner, we must hold that though the legislature set about avowedly to validate the notification dated March 31, 1956, it failed to achieve that object. A construction which will lead to such a result must, if that is possible, be avoided. The words, "in the form in which they were in force immediately before the commencement of this Act", no doubt occur after the word, "notifications". But then the words, "in the form" can have no reference to the impugned notification, because it had never changed form, whereas they were quite appropriate to S. 3A, because it had been amended. It should further be noted that the Validation Act was published both in Hindi and in English, and both of them were authorised versions. The words in the Hindi version make it clear beyond all doubt that the words, "in the form in which they were in force immediately before the commencement of this Act" qualify the word "sections" and not the word "notifications."That is the view expressed by a Bench of the Allahabad High Court in Haji Lal Mohammad Biri Works v. Sales Tax Officer AIR 1959 All 208, on a comparison of the two versions, and we are in agreement with it. There would have been no scope for this argument if transposing the words, the section read, "as if the said sections were, in the form in which they were in force immediately before the commencement of this Act, in force on the date on which the notifications were issued." But even in its present setting that is the meaning of the section, and the impugned notification must be held to be within the saving of the Validation Act.But it is urged on the strength of certain observations in 1942 FCR 90: (AIR 1942 FC 33), that a sales tax is a tax on the occasion of sale, and that therefore it could not be imposed with retrospective operation. This contention is, in our judgment, wholly withoutthe point for decision in that case was whether a tax imposed by a Provincial legislature on the sale of oil by a person who manufactured it was bad on the ground that it was in essence an excise duty. While a sales tax could be imposed by a Provincial legislature, an excise duty could be imposed only by the Federal legislature. In holding that the tax in question was a sales tax and not an excise duty, the court observed asduties of excise which the Constitution Act assigns exclusively to the Central Legislature are, according to the Central Provinces Case, In the matter of Central Provinces and Berar, Sales of Motor Spirit and Lubricant Taxation Act, 1938, 1939 FCR 18: (AIR 1939 FC 1), duties levied upon the manufacturer or producer in respect of the manufacture or production of the commodity taxed. The tax on the sale of goods, which the Act assigns exclusively to the Provincial Legislatures, is a tax levied on the occasion of the sale of the goods. Plainly a tax levied on the first sale must in the nature of things be a tax on the sale by the manufacturer or producer; but it is levied upon him qua seller and not qua manufacturer or producer." (p. 101 (of FCR): (p. 35 of AIR)).In the context, the words, "on the occasion of the sale" have reference to the character of the transaction and not to the point of time at which the duty becomes leviable, and they have no bearing on the question as to when such a tax could besee no force in this contention. It is no doubt true that a sales tax is, according to accepted notions, intended to be passed on to the buyer, and provisions authorising and regulating the collection of sales tax by the seller from the purchaser are a usual feature of sales tax legislation. But it is not an essential characteristic of a sales tax that the seller must have the right to pass it on to the consumer, nor is the power of the legislature to impose a tax on sales conditional on its making a provisions for sellers to collect the tax from the purchasers. Whether a law should be enacted, imposing a sales tax, or validating the imposition of sales tax, when the seller is not in a position to pass it on the consumer, is a matter of policy and does not affect the competence of the legislature. This question is concluded by the decision of this court is Tata Iron and Steel Co., Ltd. v. State of Bihar, (1958) SCR 1355 : (AIR 1958 SC 452 ). The following observations of Das, C. J., bearing on this question might be quoted:"Under the 1947 Act the primary liability to pay the sales tax, so far as the State is concerned, is on the seller. Indeed before the amendment of the 1947 Act by the amending Act the sellers had no authority to collect the sales tax as such from the purchaser. The seller could undoubtedly have put up the price so as to include the sales tax which he would have to pay but he could not realise any sales tax as such from the purchaser. That circumstance could not prevent the sales tax imposed on the seller to be any the less sales tax on the sale of goods. The circumstances that the 1947 Act, after the amendment, permitted the seller who was a registered dealer to collect the sales tax as a tax from the purchaser does not do away with the primary liability of the seller to pay the sales tax. This is further made clear by the fact that the registered dealer need not, if he so pleases or chooses, collect the tax from the purchaser and sometimes by reason of competition with other registered dealers he may find it profitable to sell his goods and to retain his old customers even at the sacrifice of the sales tax. This also makes it clear that the sales tax need not be passed on to the purchasers and this fact does not alter the real nature of the tax which, by the express provisions of the law, is cast upon the seller. The buyer is under no liability to pay sales tax in addition to the agreed sale price unless the contract specifically provides otherwise. See Love v. Norman Wright (Builders) Ltd., 1944-1 KB 484. If that be the true view of sales tax then the Bihar Legislature acting within its own legislative field had the powers of a sovereign legislature and could make its law prospectively as well as retrospectively." (pp 1378-1379 (of SCR): (p. 463 of AIR)must, therefore, hold that the Validation Act is not ultra vires the powers of the legislature under entry 54, for the reason that it operatesis a consideration which is wholly foreign to the present question. The point which we have got to decide is whether the Validation Act is ultra vires. That has to be determined solely on the construction of entry 54 in List II in the seventh Schedule, and any other provisions of the Constitution bearing on the question. Even assuming that the provisions of the U. P. Sales Tax Act XV of 1948 contemplate a levy of tax in futuro that does not affect the power of the Legislature under Entry 54 to enact a law with retrospective operation. It can only result in those provisions being unenforceable as regards the levy under the impugned notification. Dealing with a similar contention in 1958 SCR 1422: (AIR 1958 SC 468 ), this court observed:"It is also contended that under the Sales Tax Acts, the levy of tax is annual and the rules contemplate submission of quarterly returns and payment of taxes every quarter on the admitted turnover, and that a conditional legislation under which payment of tax will become enforceable in futuro would be inconsistent with the scheme of the Act and the rules. But this argument, when examined, comes to no more than this that the existing rules do not provide a machinery for the levy and the collection of taxes which might become payable in future, when Parliament lifts the ban. Assuming that that is the true position, that does not affect the factum of the imposition, which is the only point with which we are now concerned. That the States will have to frame rules for realising the tax which becomes now payable is not a ground for holding that there is, in fact, no imposition of tax." (p. 1454 (of SCR): (p. 483 of AIR) ).17. None of the grounds urged by the petitioner in support of the contention that the Validation Act is ultra vires can be sustained. In the result we must hold that the Validation Act is intra vires, and the impugned notification dated March 31, 1956, stands validated by it. | 0 | 5,658 | 1,732 | ### Instruction:
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with the primary liability of the seller to pay the sales tax. This is further made clear by the fact that the registered dealer need not, if he so pleases or chooses, collect the tax from the purchaser and sometimes by reason of competition with other registered dealers he may find it profitable to sell his goods and to retain his old customers even at the sacrifice of the sales tax. This also makes it clear that the sales tax need not be passed on to the purchasers and this fact does not alter the real nature of the tax which, by the express provisions of the law, is cast upon the seller. The buyer is under no liability to pay sales tax in addition to the agreed sale price unless the contract specifically provides otherwise. See Love v. Norman Wright (Builders) Ltd., 1944-1 KB 484. If that be the true view of sales tax then the Bihar Legislature acting within its own legislative field had the powers of a sovereign legislature and could make its law prospectively as well as retrospectively." (pp 1378-1379 (of SCR): (p. 463 of AIR) ).14. The decision of this court in Buchirajalingam v. State of Hyderabad, AIR 1958 SC 756 at pp. 759-60, is also to the same effect.15. The power of a legislature to enact a law with reference to a topic entrusted to it, is, as already stated, unqualified subject only to any limitation imposed by the Constitution. In the exercise of such a power, it will be competent for the legislature to enact a law, which is either prospective or retrospective. In Union of India v. Madan Gopal, 1954 SCR 541 : (AIR 1954 SC 158 ), it was held by this court that the power to impose tax on income under entry 82 of List I in Schedule VII to the Constitution, comprehended the power to impose income-tax with retrospective operation even for a period prior to the Constitution. The position will be the same as regards laws imposing tax on sale of goods, In M. P. V. Sundararamier and Co. v. State of Andhra Pradesh, 1958 SCR 1422: (AIR 1958 SC 468 ), this court had occasion to consider the validity of a law enacted by Parliament giving retrospectively operation to laws passed by the State legislatures imposing a tax on certain sales in the course of inter-State trade. One of the contentions raised against the validity of this legislation was that, having regard to the terms of Art. 286 (2), the retrospective legislation was not within the competence of Parliament. In rejecting this contention, the court observed:"Article 286 (2) merely provides that no law of a State shall impose tax on inter-State sales except in so far as Parliament may by law otherwise provide. It places no restrictions on the nature of the law to be passed by Parliament. On the other hand, the words in so far as clearly leave it to Parliament to decide on the form and nature of the law to be enacted by it. What is material to observe is that the power conferred on Parliament under Art.286(2) is a legislative power, and such a power conferred on a Sovereign Legislature carries with it authority to enact a law either prospectively or retrospectively, unless there can be found in the Constitution itself a limitation on that power." (p. 1460 (of SCR): (p. 486 of AIR)).And it was held that the law was within the competence of the legislature. We must, therefore, hold that the Validation Act is not ultra vires the powers of the legislature under entry 54, for the reason that it operates retrospectively.16. It was finally urged on the basis of Ss. 8-A, 14 and rule 23 of the U. P. Sales Tax Act that they contemplated only a prospective legislation and that those sections would be impossible of compliance under the present legislation. This is a consideration which is wholly foreign to the present question. The point which we have got to decide is whether the Validation Act is ultra vires. That has to be determined solely on the construction of entry 54 in List II in the seventh Schedule, and any other provisions of the Constitution bearing on the question. Even assuming that the provisions of the U. P. Sales Tax Act XV of 1948 contemplate a levy of tax in futuro that does not affect the power of the Legislature under Entry 54 to enact a law with retrospective operation. It can only result in those provisions being unenforceable as regards the levy under the impugned notification. Dealing with a similar contention in 1958 SCR 1422: (AIR 1958 SC 468 ), this court observed:"It is also contended that under the Sales Tax Acts, the levy of tax is annual and the rules contemplate submission of quarterly returns and payment of taxes every quarter on the admitted turnover, and that a conditional legislation under which payment of tax will become enforceable in futuro would be inconsistent with the scheme of the Act and the rules. But this argument, when examined, comes to no more than this that the existing rules do not provide a machinery for the levy and the collection of taxes which might become payable in future, when Parliament lifts the ban. Assuming that that is the true position, that does not affect the factum of the imposition, which is the only point with which we are now concerned. That the States will have to frame rules for realising the tax which becomes now payable is not a ground for holding that there is, in fact, no imposition of tax." (p. 1454 (of SCR): (p. 483 of AIR) ).17. None of the grounds urged by the petitioner in support of the contention that the Validation Act is ultra vires can be sustained. In the result we must hold that the Validation Act is intra vires, and the impugned notification dated March 31, 1956, stands validated by it.
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tax levied on the occasion of the sale of the goods. Plainly a tax levied on the first sale must in the nature of things be a tax on the sale by the manufacturer or producer; but it is levied upon him qua seller and not qua manufacturer or producer." (p. 101 (of FCR): (p. 35 of AIR)).In the context, the words, "on the occasion of the sale" have reference to the character of the transaction and not to the point of time at which the duty becomes leviable, and they have no bearing on the question as to when such a tax could besee no force in this contention. It is no doubt true that a sales tax is, according to accepted notions, intended to be passed on to the buyer, and provisions authorising and regulating the collection of sales tax by the seller from the purchaser are a usual feature of sales tax legislation. But it is not an essential characteristic of a sales tax that the seller must have the right to pass it on to the consumer, nor is the power of the legislature to impose a tax on sales conditional on its making a provisions for sellers to collect the tax from the purchasers. Whether a law should be enacted, imposing a sales tax, or validating the imposition of sales tax, when the seller is not in a position to pass it on the consumer, is a matter of policy and does not affect the competence of the legislature. This question is concluded by the decision of this court is Tata Iron and Steel Co., Ltd. v. State of Bihar, (1958) SCR 1355 : (AIR 1958 SC 452 ). The following observations of Das, C. J., bearing on this question might be quoted:"Under the 1947 Act the primary liability to pay the sales tax, so far as the State is concerned, is on the seller. Indeed before the amendment of the 1947 Act by the amending Act the sellers had no authority to collect the sales tax as such from the purchaser. The seller could undoubtedly have put up the price so as to include the sales tax which he would have to pay but he could not realise any sales tax as such from the purchaser. That circumstance could not prevent the sales tax imposed on the seller to be any the less sales tax on the sale of goods. The circumstances that the 1947 Act, after the amendment, permitted the seller who was a registered dealer to collect the sales tax as a tax from the purchaser does not do away with the primary liability of the seller to pay the sales tax. This is further made clear by the fact that the registered dealer need not, if he so pleases or chooses, collect the tax from the purchaser and sometimes by reason of competition with other registered dealers he may find it profitable to sell his goods and to retain his old customers even at the sacrifice of the sales tax. This also makes it clear that the sales tax need not be passed on to the purchasers and this fact does not alter the real nature of the tax which, by the express provisions of the law, is cast upon the seller. The buyer is under no liability to pay sales tax in addition to the agreed sale price unless the contract specifically provides otherwise. See Love v. Norman Wright (Builders) Ltd., 1944-1 KB 484. If that be the true view of sales tax then the Bihar Legislature acting within its own legislative field had the powers of a sovereign legislature and could make its law prospectively as well as retrospectively." (pp 1378-1379 (of SCR): (p. 463 of AIR)must, therefore, hold that the Validation Act is not ultra vires the powers of the legislature under entry 54, for the reason that it operatesis a consideration which is wholly foreign to the present question. The point which we have got to decide is whether the Validation Act is ultra vires. That has to be determined solely on the construction of entry 54 in List II in the seventh Schedule, and any other provisions of the Constitution bearing on the question. Even assuming that the provisions of the U. P. Sales Tax Act XV of 1948 contemplate a levy of tax in futuro that does not affect the power of the Legislature under Entry 54 to enact a law with retrospective operation. It can only result in those provisions being unenforceable as regards the levy under the impugned notification. Dealing with a similar contention in 1958 SCR 1422: (AIR 1958 SC 468 ), this court observed:"It is also contended that under the Sales Tax Acts, the levy of tax is annual and the rules contemplate submission of quarterly returns and payment of taxes every quarter on the admitted turnover, and that a conditional legislation under which payment of tax will become enforceable in futuro would be inconsistent with the scheme of the Act and the rules. But this argument, when examined, comes to no more than this that the existing rules do not provide a machinery for the levy and the collection of taxes which might become payable in future, when Parliament lifts the ban. Assuming that that is the true position, that does not affect the factum of the imposition, which is the only point with which we are now concerned. That the States will have to frame rules for realising the tax which becomes now payable is not a ground for holding that there is, in fact, no imposition of tax." (p. 1454 (of SCR): (p. 483 of AIR) ).17. None of the grounds urged by the petitioner in support of the contention that the Validation Act is ultra vires can be sustained. In the result we must hold that the Validation Act is intra vires, and the impugned notification dated March 31, 1956, stands validated by it.
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Shyam Behari Vs. State of Uttar Pradesh | that this was the job of a person who had plenty of venom against the victim and not of a hired assassin like the appellant who admittedly is a pahalwan.(xi) Two dandas were recovered from the place where the deceaseds torch was found in the sugarcane field of Raghunath Joshi; no witness has said that the appellant was carrying any danda when he called the victim from his house.(xii) The appellant being a bad character, and allegedly carrying a knife was found to whip out his knife before submitting tamely to the arrest.(xiii) Semi-digested food was found in the stomach of the deceased which indicated that the fatal assault had been made on the deceased two hours and not 20 minutes after the ingestion of the food.(xiv) After his arrest and the seizure of the knife from him, the appellant was asked as to what sort of knife it was. Such a question, according to the trial Judge was incompatible with the confession said to have been made by the appellant.(xv) In all probability, the deceased died immediately after the assault and did not survive long enough to make a dying declaration.(xvi) The location of the injuries found on the appellant indicated that they had been inflicted after his arrest and not in the course of the pursuit.10. The learned Judges of the High Court have considered and dispelled and in our opinion rightly those of the above reasons which were less flimsy and merited some discussion to be rejected. We therefore do not propose to go over the entire field again.11. The learned trial Judge brushed aside the evidence of Vijai PW merely for the reason that he was the real brother of the deceased. He cast aside the testimony of Babu Singh on the ground that since he had sold away his entire land in this village his presence at Bhatpura at the time of the occurrence was improbable. He dubbed Misri Lal as an "interested" witness merely for the reason that he along with Vijai had accompanied the cart in which Barey Lal was taken to the police station. As regards Prem Narain, the learned Judge observed thathe is a chance witness whose story about his presence on the scene does not carry conviction.12. The learned Judges of the High Court have very cogently discounted these so-called "reasons" advanced by the Sessions Judge and found that the testimony of Vijai Babu Sing and Misri Lal was creditworthy. We entirely agree with that assessment of the evidence made by the High Court. The account given by PWs Vijai, Babu Singh and Misri Lal was highly probable. The field of occurrence was hardly one furlong from the habitation of village Bhatpura. The occurrence took place at about 8-30 p. m. It was quit natural for the witnesses to be awake and present at or near their houses. At that hour in the stillness of the night, the screams of the deceased must have been heard by the villagers, including these PWs. Vijai had only 20 minutes earlier seen the deceased going away with the appellant. He was present in front of his house and so was Babu Singh at the adjoining house when they heard the outcry of the deceased. It was therefore, quite natural for these two witnesses to rush together towards the field from where the cries were emanating. There were as many as 22 injuries on the deceased. The latter also must have struggled hard to escape the blows. The assault therefore must have been going on for about 4 or 5 minutes at least. There was thus ample time for these PWs to reach near the spot when the assault was in progress. At least they must have in all probability seen the appellant and his companions running away from the scene. The truth of the version that these witnesses had actually seen the appellant assaulting the deceased and then running away is guaranteed by the circumstance that the appellant was arrested soon after the assault after a hot pursuit and the bloodstained knife was also seized from him. The appellants plea that he had been arrested from the house of his father-in-law in another village at midnight was palpably false. By 10 p. m. the F. I. R and the appellant had both been lodged in the police station which is four miles from village Bhatpura. There was no time for the PWs to stage-manage a fake arrest or to spin out a false story. The fact that Barey Lal expired on his way to the hospital, also lends assurance to the conclusion that they must have seen the assault on the deceased. This also lends strength to their version that the deceased had made a dying declaration in which he had denounced the appellant as his assailant.13. As rightly observed by the learned Judge of the High Court, Babu Singh still owns his house in village Bhatpura. His family lives there. By no stretch of imagination therefore his presence at his own house in Bhatpura could be called unnatural. Misri Lal could not be branded as "interested" simply because he had accompanied the deceased and his brother to the police station.14. Mr. Kohli contended that both the courts below had found that Prem Narain had been falsely inducted as a witness in this case and this circumstance alone was sufficient to hold suspect the testimony of the eyewitnesses. We are afraid this contention cannot prevail. The courts below have not positively held that Prem Narain was a false witness. We have already noticed why the trial Judge found his evidence "unconvincing". The High Court also, did not rely on him as a matter of caution. It never held that Prem Narain was a downright liar.15. Thus, no inference against the veracity of PWs 1, 2 and 3 can be drawn on that score. Nor was it necessary for the prosecution to produce all those who had at some later stage joined the chase. | 0[ds]9. The contention cannot be accepted. Having heard the Counsel and scrutinized the record, we are of opinion that the view taken by the learned Sessions Judge was manifestly erroneous. His very approach was odd and conceived in a fanciful setting. That was why what in reality were insignificant, neutral orfeatures of the case appeared to him odd features throwing a cloud on the veracity of the prosecution. The exceedingly speculative nature of his "reasoning" is patent.The learned Judges of the High Court have considered and dispelled and in our opinion rightly those of the above reasons which were less flimsy and merited some discussion to be rejected. We therefore do not propose to go over the entire field again.11. The learned trial Judge brushed aside the evidence of Vijai PW merely for the reason that he was the real brother of the deceased. He cast aside the testimony of Babu Singh on the ground that since he had sold away his entire land in this village his presence at Bhatpura at the time of the occurrence was improbable. He dubbed Misri Lal as an "interested" witness merely for the reason that he along with Vijai had accompanied the cart in which Barey Lal was taken to the police station. As regards Prem Narain, the learned Judge observed thathe is a chance witness whose story about his presence on the scene does not carry conviction.12. The learned Judges of the High Court have very cogently discounted these"reasons" advanced by the Sessions Judge and found that the testimony of Vijai Babu Sing and Misri Lal was creditworthy. We entirely agree with that assessment of the evidence made by the High Court. The account given by PWs Vijai, Babu Singh and Misri Lal was highly probable. The field of occurrence was hardly one furlong from the habitation of village Bhatpura. The occurrence took place at aboutp. m. It was quit natural for the witnesses to be awake and present at or near their houses. At that hour in the stillness of the night, the screams of the deceased must have been heard by the villagers, including these PWs. Vijai had only 20 minutes earlier seen the deceased going away with the appellant. He was present in front of his house and so was Babu Singh at the adjoining house when they heard the outcry of the deceased. It was therefore, quite natural for these two witnesses to rush together towards the field from where the cries were emanating. There were as many as 22 injuries on the deceased. The latter also must have struggled hard to escape the blows. The assault therefore must have been going on for about 4 or 5 minutes at least. There was thus ample time for these PWs to reach near the spot when the assault was in progress. At least they must have in all probability seen the appellant and his companions running away from the scene. The truth of the version that these witnesses had actually seen the appellant assaulting the deceased and then running away is guaranteed by the circumstance that the appellant was arrested soon after the assault after a hot pursuit and the bloodstained knife was also seized from him. The appellants plea that he had been arrested from the house of hisin another village at midnight was palpably false. By 10 p. m. the F. I. R and the appellant had both been lodged in the police station which is four miles from village Bhatpura. There was no time for the PWs toa fake arrest or to spin out a false story. The fact that Barey Lal expired on his way to the hospital, also lends assurance to the conclusion that they must have seen the assault on the deceased. This also lends strength to their version that the deceased had made a dying declaration in which he had denounced the appellant as his assailant.13. As rightly observed by the learned Judge of the High Court, Babu Singh still owns his house in village Bhatpura. His family lives there. By no stretch of imagination therefore his presence at his own house in Bhatpura could be called unnatural. Misri Lal could not be branded as "interested" simply because he had accompanied the deceased and his brother to the policecourts below have not positively held that Prem Narain was a false witness. We have already noticed why the trial Judge found his evidence "unconvincing". The High Court also, did not rely on him as a matter of caution. It never held that Prem Narain was a downright liar.15. Thus, no inference against the veracity of PWs 1, 2 and 3 can be drawn on that score. Nor was it necessary for the prosecution to produce all those who had at some later stage joined the chase. | 0 | 2,469 | 872 | ### 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 this was the job of a person who had plenty of venom against the victim and not of a hired assassin like the appellant who admittedly is a pahalwan.(xi) Two dandas were recovered from the place where the deceaseds torch was found in the sugarcane field of Raghunath Joshi; no witness has said that the appellant was carrying any danda when he called the victim from his house.(xii) The appellant being a bad character, and allegedly carrying a knife was found to whip out his knife before submitting tamely to the arrest.(xiii) Semi-digested food was found in the stomach of the deceased which indicated that the fatal assault had been made on the deceased two hours and not 20 minutes after the ingestion of the food.(xiv) After his arrest and the seizure of the knife from him, the appellant was asked as to what sort of knife it was. Such a question, according to the trial Judge was incompatible with the confession said to have been made by the appellant.(xv) In all probability, the deceased died immediately after the assault and did not survive long enough to make a dying declaration.(xvi) The location of the injuries found on the appellant indicated that they had been inflicted after his arrest and not in the course of the pursuit.10. The learned Judges of the High Court have considered and dispelled and in our opinion rightly those of the above reasons which were less flimsy and merited some discussion to be rejected. We therefore do not propose to go over the entire field again.11. The learned trial Judge brushed aside the evidence of Vijai PW merely for the reason that he was the real brother of the deceased. He cast aside the testimony of Babu Singh on the ground that since he had sold away his entire land in this village his presence at Bhatpura at the time of the occurrence was improbable. He dubbed Misri Lal as an "interested" witness merely for the reason that he along with Vijai had accompanied the cart in which Barey Lal was taken to the police station. As regards Prem Narain, the learned Judge observed thathe is a chance witness whose story about his presence on the scene does not carry conviction.12. The learned Judges of the High Court have very cogently discounted these so-called "reasons" advanced by the Sessions Judge and found that the testimony of Vijai Babu Sing and Misri Lal was creditworthy. We entirely agree with that assessment of the evidence made by the High Court. The account given by PWs Vijai, Babu Singh and Misri Lal was highly probable. The field of occurrence was hardly one furlong from the habitation of village Bhatpura. The occurrence took place at about 8-30 p. m. It was quit natural for the witnesses to be awake and present at or near their houses. At that hour in the stillness of the night, the screams of the deceased must have been heard by the villagers, including these PWs. Vijai had only 20 minutes earlier seen the deceased going away with the appellant. He was present in front of his house and so was Babu Singh at the adjoining house when they heard the outcry of the deceased. It was therefore, quite natural for these two witnesses to rush together towards the field from where the cries were emanating. There were as many as 22 injuries on the deceased. The latter also must have struggled hard to escape the blows. The assault therefore must have been going on for about 4 or 5 minutes at least. There was thus ample time for these PWs to reach near the spot when the assault was in progress. At least they must have in all probability seen the appellant and his companions running away from the scene. The truth of the version that these witnesses had actually seen the appellant assaulting the deceased and then running away is guaranteed by the circumstance that the appellant was arrested soon after the assault after a hot pursuit and the bloodstained knife was also seized from him. The appellants plea that he had been arrested from the house of his father-in-law in another village at midnight was palpably false. By 10 p. m. the F. I. R and the appellant had both been lodged in the police station which is four miles from village Bhatpura. There was no time for the PWs to stage-manage a fake arrest or to spin out a false story. The fact that Barey Lal expired on his way to the hospital, also lends assurance to the conclusion that they must have seen the assault on the deceased. This also lends strength to their version that the deceased had made a dying declaration in which he had denounced the appellant as his assailant.13. As rightly observed by the learned Judge of the High Court, Babu Singh still owns his house in village Bhatpura. His family lives there. By no stretch of imagination therefore his presence at his own house in Bhatpura could be called unnatural. Misri Lal could not be branded as "interested" simply because he had accompanied the deceased and his brother to the police station.14. Mr. Kohli contended that both the courts below had found that Prem Narain had been falsely inducted as a witness in this case and this circumstance alone was sufficient to hold suspect the testimony of the eyewitnesses. We are afraid this contention cannot prevail. The courts below have not positively held that Prem Narain was a false witness. We have already noticed why the trial Judge found his evidence "unconvincing". The High Court also, did not rely on him as a matter of caution. It never held that Prem Narain was a downright liar.15. Thus, no inference against the veracity of PWs 1, 2 and 3 can be drawn on that score. Nor was it necessary for the prosecution to produce all those who had at some later stage joined the chase.
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0
### Explanation:
9. The contention cannot be accepted. Having heard the Counsel and scrutinized the record, we are of opinion that the view taken by the learned Sessions Judge was manifestly erroneous. His very approach was odd and conceived in a fanciful setting. That was why what in reality were insignificant, neutral orfeatures of the case appeared to him odd features throwing a cloud on the veracity of the prosecution. The exceedingly speculative nature of his "reasoning" is patent.The learned Judges of the High Court have considered and dispelled and in our opinion rightly those of the above reasons which were less flimsy and merited some discussion to be rejected. We therefore do not propose to go over the entire field again.11. The learned trial Judge brushed aside the evidence of Vijai PW merely for the reason that he was the real brother of the deceased. He cast aside the testimony of Babu Singh on the ground that since he had sold away his entire land in this village his presence at Bhatpura at the time of the occurrence was improbable. He dubbed Misri Lal as an "interested" witness merely for the reason that he along with Vijai had accompanied the cart in which Barey Lal was taken to the police station. As regards Prem Narain, the learned Judge observed thathe is a chance witness whose story about his presence on the scene does not carry conviction.12. The learned Judges of the High Court have very cogently discounted these"reasons" advanced by the Sessions Judge and found that the testimony of Vijai Babu Sing and Misri Lal was creditworthy. We entirely agree with that assessment of the evidence made by the High Court. The account given by PWs Vijai, Babu Singh and Misri Lal was highly probable. The field of occurrence was hardly one furlong from the habitation of village Bhatpura. The occurrence took place at aboutp. m. It was quit natural for the witnesses to be awake and present at or near their houses. At that hour in the stillness of the night, the screams of the deceased must have been heard by the villagers, including these PWs. Vijai had only 20 minutes earlier seen the deceased going away with the appellant. He was present in front of his house and so was Babu Singh at the adjoining house when they heard the outcry of the deceased. It was therefore, quite natural for these two witnesses to rush together towards the field from where the cries were emanating. There were as many as 22 injuries on the deceased. The latter also must have struggled hard to escape the blows. The assault therefore must have been going on for about 4 or 5 minutes at least. There was thus ample time for these PWs to reach near the spot when the assault was in progress. At least they must have in all probability seen the appellant and his companions running away from the scene. The truth of the version that these witnesses had actually seen the appellant assaulting the deceased and then running away is guaranteed by the circumstance that the appellant was arrested soon after the assault after a hot pursuit and the bloodstained knife was also seized from him. The appellants plea that he had been arrested from the house of hisin another village at midnight was palpably false. By 10 p. m. the F. I. R and the appellant had both been lodged in the police station which is four miles from village Bhatpura. There was no time for the PWs toa fake arrest or to spin out a false story. The fact that Barey Lal expired on his way to the hospital, also lends assurance to the conclusion that they must have seen the assault on the deceased. This also lends strength to their version that the deceased had made a dying declaration in which he had denounced the appellant as his assailant.13. As rightly observed by the learned Judge of the High Court, Babu Singh still owns his house in village Bhatpura. His family lives there. By no stretch of imagination therefore his presence at his own house in Bhatpura could be called unnatural. Misri Lal could not be branded as "interested" simply because he had accompanied the deceased and his brother to the policecourts below have not positively held that Prem Narain was a false witness. We have already noticed why the trial Judge found his evidence "unconvincing". The High Court also, did not rely on him as a matter of caution. It never held that Prem Narain was a downright liar.15. Thus, no inference against the veracity of PWs 1, 2 and 3 can be drawn on that score. Nor was it necessary for the prosecution to produce all those who had at some later stage joined the chase.
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S. N. Sundalaimuthu Chettiar Vs. Palaniyandavan | the cultivation of that land;" The provisions set out above are relevant for consideration in this appeal. What happened was that Kanda Devan, who was the cultivating tenant, died some time before the proceedings before the Sub-Collector commenced. He left behind as his heirs his widow Palaniachi Ammal and his daughter Ramalakshmi Ammal. The respondent before us is the daughters husband and holds a power of attorney both from her and Palaniachi Ammal. There was default in payment of rent and so the respondent by virtue of power of the attorney in his favour made an application in the year 1962 before the Sub-Collector under S. 3 (3) (a) of the Act for depositing the rental arrears. The appellant who is the landlord contested the application on the ground that neither the wife nor the daughter of the deceased Kanda Devan was a cultivating tenant as defined in the Act because they were not personally cultivating the land and that, therefore, they were not entitled to the protection afforded by the Act. The Sub-Collector over-ruled the objection and, as already stated, directed the respondent to deposit the rental arrears. The question is whether the respondent was rightly allowed to deposit the arrears. 3.It is not disputed that Palaniachi Ammal and Ramalakshmi Ammal are the heirs of Kanda Devan, who, being a tenant, was entitled to the protection of the Act. It is also not disputed that after the death of Kanda Devan the land is being cultivated on behalf of these two women and that they are not personally cultivating them, in the sense that they are not contributing physical labour for its cultivation. It is, however, contended on behalf of the respondent that it is not necessary for a tenant to contribute physical labour before he can be held entitled to the benefit of the provision. Two decisions of the Madras High Court bearing on the point were cited before us. The first of these is Kunchitapatham Pillai v. Ranganatham Pillai(1958) 1 Mad LJ 272. In that case Balakrishna Iyer, J., held that in order to qualify as a cultivating tenant within the meaning of the definition given in the Act it was not necessary that a person should put his own muscular effort into the soil. Construing a similar expression occuring in the Tenjore Tenants and Pannaiyal Protection Ordinance IV of 1952, Rajagopala Ayyangar, J., observed in an unreported case. Writ Petn. No. 426 of 1953 (SC):"Before a person can be a cultivating tenant, he or members of his family must contribute his or their own physical labour. I do not consider that the supervision of panniyals could be characterised as physical labour within the meaning of the definition clause." The view taken by Balakrishna Iyer, J., was held to be too wide in Mohamed Abubucker Lebbai v. Zamindar of Ettayapuram (1961) 1 Mad LJ 256. Rajamannar C. J., who delivered judgment of the Court, after considering the views of Balakrishna Iyer, J., and Rajagopala Ayyangar, J., and also certain English decisions agreed with the view of the latter, and in our view, rightly. 4. It is, however, said that though the heirs of Kanda Devan are not themselves exerting their physical labour the respondent who is the holder of a power of attorney from them is doing so and that, therefore, the heirs must be regarded as cultivating tenants. Reliance is placed in this connection on Cl. (ee) which gives the meaning of the expression "to carry on personal cultivation". Before the heirs can be given the benefit of this definition it is necessary for them to establish that someone is contributing his physical labour in the cultivation of the land and that that someone is a member of their family. Mr. S. C. Agarwal, appearing for the respondent, said that a son-in-law can be regarded as a member of the family because the word family is not to be construed in a narrow sense or meaning only a member of a Hindu joint family. He is quite right there because the Act applies to all tenants irrespective of the personal laws which govern them. In Websters New Word Dictionary one of the meanings of family is "a group of people related by blood or marriage, relatives". A person can, therefore, be properly regarded as being the member of his wifes family and not merely of his fathers family. Mr. Viswanatha Sastri for the appellants, however, contends that even so the respondent is not contributing any physical labour but is only doing some kind of supervision. He further points out that according to the decision in Abubucker Lebbais case (1961) 1 Mad LJ 256, the work of supervision is not tantamount to physical labour. There is, however, no finding by the Sub-Collector as to the nature of work, if any, which the respondent is doing in connection with the supervision of the land in question. In the absence of such a finding and in the absence of any relevant material before us we cannot deal with this argument. We do not even know whether there were any pleadings of the parties on the point and whether any evidence was led thereon by the parties. In the circumstances we think that in the interest of justice we should set aside the orders of both the Courts below and remit the matter to the Sub-Collector for deciding as to whether the respondent was putting in physical labour in the cultivation of the field. If there is no material on record bearing on the point he should give opportunity to both the parties to make necessary pleadings and to adduce evidence. Accordingly we allow the appeal, set aside the decisions of the Courts below and remit the mater to the Sub-Collector for a decision adverting to what we have said in our judgment. Costs in this Court will be paid by the appellant as ordered on 3rd May, 1965. Costs in the two Courts below will abide the result. 5. | 1[ds]4. It is, however, said that though the heirs of Kanda Devan are not themselves exerting their physical labour the respondent who is the holder of a power of attorney from them is doing so and that, therefore, the heirs must be regarded as cultivating tenants. Reliance is placed in this connection on Cl. (ee) which gives the meaning of the expression "to carry on personal cultivation". Before the heirs can be given the benefit of this definition it is necessary for them to establish that someone is contributing his physical labour in the cultivation of the land and that that someone is a member of their family. Mr. S. C. Agarwal, appearing for the respondent, said that a son-in-law can be regarded as a member of the family because the word family is not to be construed in a narrow sense or meaning only a member of a Hindu joint family. He is quite right there because the Act applies to all tenants irrespective of the personal laws which govern them. In Websters New Word Dictionary one of the meanings of family is "a group of people related by blood or marriage, relatives". A person can, therefore, be properly regarded as being the member of his wifes family and not merely of his fathers family. Mr. Viswanatha Sastri for the appellants, however, contends that even so the respondent is not contributing any physical labour but is only doing some kind of supervision. He further points out that according to the decision in Abubucker Lebbais case (1961) 1 Mad LJ 256, the work of supervision is not tantamount to physical labour. There is, however, no finding by the Sub-Collector as to the nature of work, if any, which the respondent is doing in connection with the supervision of the land in question. In the absence of such a finding and in the absence of any relevant material before us we cannot deal with this argument. We do not even know whether there were any pleadings of the parties on the point and whether any evidence was led thereon by the parties. In the circumstances we think that in the interest of justice we should set aside the orders of both the Courts below and remit the matter to the Sub-Collector for deciding as to whether the respondent was putting in physical labour in the cultivation of the field. If there is no material on record bearing on the point he should give opportunity to both the parties to make necessary pleadings and to adduce evidence. Accordingly we allow the appeal, set aside the decisions of the Courts below and remit the mater to the Sub-Collector for a decision adverting to what we have said in our judgment. Costs in this Court will be paid by the appellant as ordered on 3rd May, 1965. Costs in the two Courts below will abide the result. | 1 | 1,428 | 533 | ### 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:
the cultivation of that land;" The provisions set out above are relevant for consideration in this appeal. What happened was that Kanda Devan, who was the cultivating tenant, died some time before the proceedings before the Sub-Collector commenced. He left behind as his heirs his widow Palaniachi Ammal and his daughter Ramalakshmi Ammal. The respondent before us is the daughters husband and holds a power of attorney both from her and Palaniachi Ammal. There was default in payment of rent and so the respondent by virtue of power of the attorney in his favour made an application in the year 1962 before the Sub-Collector under S. 3 (3) (a) of the Act for depositing the rental arrears. The appellant who is the landlord contested the application on the ground that neither the wife nor the daughter of the deceased Kanda Devan was a cultivating tenant as defined in the Act because they were not personally cultivating the land and that, therefore, they were not entitled to the protection afforded by the Act. The Sub-Collector over-ruled the objection and, as already stated, directed the respondent to deposit the rental arrears. The question is whether the respondent was rightly allowed to deposit the arrears. 3.It is not disputed that Palaniachi Ammal and Ramalakshmi Ammal are the heirs of Kanda Devan, who, being a tenant, was entitled to the protection of the Act. It is also not disputed that after the death of Kanda Devan the land is being cultivated on behalf of these two women and that they are not personally cultivating them, in the sense that they are not contributing physical labour for its cultivation. It is, however, contended on behalf of the respondent that it is not necessary for a tenant to contribute physical labour before he can be held entitled to the benefit of the provision. Two decisions of the Madras High Court bearing on the point were cited before us. The first of these is Kunchitapatham Pillai v. Ranganatham Pillai(1958) 1 Mad LJ 272. In that case Balakrishna Iyer, J., held that in order to qualify as a cultivating tenant within the meaning of the definition given in the Act it was not necessary that a person should put his own muscular effort into the soil. Construing a similar expression occuring in the Tenjore Tenants and Pannaiyal Protection Ordinance IV of 1952, Rajagopala Ayyangar, J., observed in an unreported case. Writ Petn. No. 426 of 1953 (SC):"Before a person can be a cultivating tenant, he or members of his family must contribute his or their own physical labour. I do not consider that the supervision of panniyals could be characterised as physical labour within the meaning of the definition clause." The view taken by Balakrishna Iyer, J., was held to be too wide in Mohamed Abubucker Lebbai v. Zamindar of Ettayapuram (1961) 1 Mad LJ 256. Rajamannar C. J., who delivered judgment of the Court, after considering the views of Balakrishna Iyer, J., and Rajagopala Ayyangar, J., and also certain English decisions agreed with the view of the latter, and in our view, rightly. 4. It is, however, said that though the heirs of Kanda Devan are not themselves exerting their physical labour the respondent who is the holder of a power of attorney from them is doing so and that, therefore, the heirs must be regarded as cultivating tenants. Reliance is placed in this connection on Cl. (ee) which gives the meaning of the expression "to carry on personal cultivation". Before the heirs can be given the benefit of this definition it is necessary for them to establish that someone is contributing his physical labour in the cultivation of the land and that that someone is a member of their family. Mr. S. C. Agarwal, appearing for the respondent, said that a son-in-law can be regarded as a member of the family because the word family is not to be construed in a narrow sense or meaning only a member of a Hindu joint family. He is quite right there because the Act applies to all tenants irrespective of the personal laws which govern them. In Websters New Word Dictionary one of the meanings of family is "a group of people related by blood or marriage, relatives". A person can, therefore, be properly regarded as being the member of his wifes family and not merely of his fathers family. Mr. Viswanatha Sastri for the appellants, however, contends that even so the respondent is not contributing any physical labour but is only doing some kind of supervision. He further points out that according to the decision in Abubucker Lebbais case (1961) 1 Mad LJ 256, the work of supervision is not tantamount to physical labour. There is, however, no finding by the Sub-Collector as to the nature of work, if any, which the respondent is doing in connection with the supervision of the land in question. In the absence of such a finding and in the absence of any relevant material before us we cannot deal with this argument. We do not even know whether there were any pleadings of the parties on the point and whether any evidence was led thereon by the parties. In the circumstances we think that in the interest of justice we should set aside the orders of both the Courts below and remit the matter to the Sub-Collector for deciding as to whether the respondent was putting in physical labour in the cultivation of the field. If there is no material on record bearing on the point he should give opportunity to both the parties to make necessary pleadings and to adduce evidence. Accordingly we allow the appeal, set aside the decisions of the Courts below and remit the mater to the Sub-Collector for a decision adverting to what we have said in our judgment. Costs in this Court will be paid by the appellant as ordered on 3rd May, 1965. Costs in the two Courts below will abide the result. 5.
### Response:
1
### Explanation:
4. It is, however, said that though the heirs of Kanda Devan are not themselves exerting their physical labour the respondent who is the holder of a power of attorney from them is doing so and that, therefore, the heirs must be regarded as cultivating tenants. Reliance is placed in this connection on Cl. (ee) which gives the meaning of the expression "to carry on personal cultivation". Before the heirs can be given the benefit of this definition it is necessary for them to establish that someone is contributing his physical labour in the cultivation of the land and that that someone is a member of their family. Mr. S. C. Agarwal, appearing for the respondent, said that a son-in-law can be regarded as a member of the family because the word family is not to be construed in a narrow sense or meaning only a member of a Hindu joint family. He is quite right there because the Act applies to all tenants irrespective of the personal laws which govern them. In Websters New Word Dictionary one of the meanings of family is "a group of people related by blood or marriage, relatives". A person can, therefore, be properly regarded as being the member of his wifes family and not merely of his fathers family. Mr. Viswanatha Sastri for the appellants, however, contends that even so the respondent is not contributing any physical labour but is only doing some kind of supervision. He further points out that according to the decision in Abubucker Lebbais case (1961) 1 Mad LJ 256, the work of supervision is not tantamount to physical labour. There is, however, no finding by the Sub-Collector as to the nature of work, if any, which the respondent is doing in connection with the supervision of the land in question. In the absence of such a finding and in the absence of any relevant material before us we cannot deal with this argument. We do not even know whether there were any pleadings of the parties on the point and whether any evidence was led thereon by the parties. In the circumstances we think that in the interest of justice we should set aside the orders of both the Courts below and remit the matter to the Sub-Collector for deciding as to whether the respondent was putting in physical labour in the cultivation of the field. If there is no material on record bearing on the point he should give opportunity to both the parties to make necessary pleadings and to adduce evidence. Accordingly we allow the appeal, set aside the decisions of the Courts below and remit the mater to the Sub-Collector for a decision adverting to what we have said in our judgment. Costs in this Court will be paid by the appellant as ordered on 3rd May, 1965. Costs in the two Courts below will abide the result.
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MUNICIPAL CORPORATION Vs. BVG INDIA LIMITED | notices were necessarily taken into consideration by the technical expert. In all fairness, respondent no.1 ought to have disclosed these factors in its bid. In view of the same, in our considered opinion, the High Court was not justified in increasing the marks for responsiveness from 5 to 10.2. Evaluation of financial bid:45. The method for evaluation of the financial bid as applied by the High Court is also not proper, and is illogical. As mentioned supra, the technical expert, in our considered opinion, has rightly applied the following formula in respect of the bidders so far as financial bids are concerned: FL1 x 20 FL2/FL3/FL4 On the other hand, the High Court has redone the evaluating formula in which multiplication of 20 is not adopted: FL1 FL2/FL3/FL4 Since the multiplication of 20 is not adopted by the High Court (the same rightly adopted by the technical expert in respect of the bidders), the same has led to unreasonableness and a travesty of justice. The formula adopted by the High Court does not stand to reason at all. The NIT has prescribed the method of calculation of marks for the financial bid. The lowest bid, i.e., FL1 will be granted 20 marks. Other parties will thereafter be given scores by the formula (prescribed in Clause 3.1.3 of Article III of the NIT), i.e., FL1/FL2 x 20 = FL2?s financial score. In the matter on hand, FL1 of BVG India Limited was 1454, whereas FL2 was 1710, which was of the successful bidder, i.e., Global Waste Management Cell Pvt. Ltd. Thus, 1454 (FL1) divided by 1710(FL2), multiplied by 20 marks, gives 17 marks to Global Waste Management Cell Pvt. Ltd., so far as the financial bid is concerned. Per contra, the High Court has failed to multiply the ratio of financial bids with marks of 20 and thus has erroneously arrived at the score of 0.85 marks instead of 17 marks.46. The High Court observed in para 25 of the impugned judgment that the technical consultant had wrongly relied upon the certificate dated 16.07.2015 issued by Mira Bhayandar to qualify the successful bidder as the technical expert had prepared the technical evaluation report on 6.6.2015. The observation of the High Court was that, on the date of technical evaluation, the certificate issued by Mira Bhayandar was not in existence. Records reveal that the technical expert had not relied upon the certificate dated 16.07.2015. The said certificate was an additional document submitted for the first time before the High Court along with the reply affidavit as per annexures R4 to R6. Whereas, the document submitted in respect of Mira Bhayandar by the successful bidder was a certificate dated 15.1.2015, which was much prior to the technical evaluation report dated 6.6.2015. The same is clear from Annexure R-21 of the counter affidavit filed on behalf of the successful bidder. Therefore, the observations and the findings of the High Court in respect of the certificate issued by Mira Bhayandar are not correct.47. In the matter on hand, we do not find either the decision-making process or the decision to be arbitrary or irrational.48. The authority concerned is in the best position to find out the best person or the best quotation depending on the work to be entrusted under the contract. If a bidder had faced a number of show-cause notices from various municipal corporations in the matter of non-performance of door to door collection of garbage etc., the Court cannot compel the authority to choose such undeserving person/company to carry out the work. Ultimately, the public interest must be safeguarded. The public would be directly interested in the timely fulfilment of the contract so that the services become available to the public expeditiously and effectively. The public would also be interested in the quality of work undertaken. Poor quality of work or goods can lead to tremendous public hardship and substantial financial outlay either in correcting mistakes or in rectifying defects or even at times in re-doing the entire work. Lethargy or tardiness in collecting door to door garbage on a day-to-day basis would definitely lead to increase collection of garbage on the roads and public properties, which leads to health hazards and also reduces the cleanliness of the city. Since the public is directly interested and would be affected if the work entrusted is not carried out appropriately, and as the technical expert has found that respondent no.1 would not be a suitable company to be entrusted the work inasmuch as it had faced 73 show-cause notices from different Municipal Corporations, the High Court could not have interfered with the decision taken by the authority. In our considered opinion, the High Court has ignored the element of public interest involved in the matter.49. As aforementioned, unless the Court concludes that the decision making process or the decision taken by the authority bristles with mala fides, arbitrariness, or perversity, or that the authority has intended to favour someone, the Constitutional Court will not interfere with the decision-making process or the decision.50. Thus, the questions to be decided in this appeal are answered as follows: (a) Under the scope of judicial review, the High Court could not ordinarily interfere with the judgment of the expert consultant on the issues of technical qualifications of a bidder when the consultant takes into consideration various factors including the basis of non-performance of the bidder; (b) A bidder who submits a bid expressly declaring that it is submitting the same independently and without any partners, consortium or joint venture, cannot rely upon the technical qualifications of any 3 rd Party for its qualification. (c) It is not open to the Court to independently evaluate the technical bids and financial bids of the parties as an appellate authority for coming to its conclusion inasmuch as unless the thresholds of mala fides, intention to favour someone or bias, arbitrariness, irrationality or perversity are met, where a decision is taken purely on public interest, the Court ordinarily should exercise judicial restraint. | 1[ds]21. Thus, only when a decision making process is so arbitrary or irrational that no responsible authority proceeding reasonably or lawfully could have arrived at such decisions, power of judicial review can be exercised. However, if it is bona fide and in public interest, the Court will not interfere in the exercise of power of judicial review even if there is a procedural lacuna. The principles of equity and natural justice do not operate in the field of commercial transactions. Wherever a decision has been taken appropriately in public interest, the Court ordinarily should exercise judicial restraint. When a decision is taken by the concerned authority upon due consideration of the tender document submitted by all tenderers on their own merits and it is ultimately found that the successful bidder had in fact substantially complied with the purpose and object for which the essential conditions were laid down, the same may not ordinarily be interfered with.The contentions of Shri Banerji cannot be accepted, because the bid should be accepted not only based on the outcome of the financial bid, but also based on the evaluation of the technical bid. Moreover, in the matter on hand, the technical bid will have 80% marks whereas the financial bid will have 20% marks. This clearly shows that the municipal corporation has given due importance to the quality and not the financial aspect, keeping in mind the object for which bids are invited. A Constitution Bench of this Court in Trilochan Mishra Etc v. State of Orissa & Ors (1971) 3 SCC 153 held that the Government most certainly has a right to enter into a contract with a person well known to it, and especially one who has faithfully performed its contracts in the past in preference to an undesirable or unsuitable or untried person.In the matter on hand, admittedly, the successful bidder was more technically qualified and it got more marks. Normally, the contract could be awarded to the lowest bidder if it is in the public interest. Merely because the financial bid of BVG India Ltd. is the lowest, the requirement of compliance with the Rules and conditions cannot beAs rightly contended by respondent no. 3, a statutory authority granting licences should have the latitude to select the best offer on the terms and conditions prescribed. The technical expert in his report categorically statedthe above aspects demand high level of Technicalities and Expertise rather than just depending on lowest financial price quote for a materialclarified earlier, the power of judicial review can be exercised only if there is unreasonableness, irrationality or arbitrariness and in order to avoid bias and mala fides. This Court in Afcons Infrastructure (supra) held the same in the followingIn other words, a mere disagreement with the decision making process or the decision of the administrative authority is no reason for a constitutional Court to interfere. The threshold of mala fides, intention to favour someone or arbitrariness, irrationality or perversity must be met before the constitutional Court interferes with the decision making process or the decision.Evaluating tenders and awarding contracts are essentially commercial transactions/contracts. If the decision relating to award of contract is in public interest, the Courts will not, in exercise of the power of judicial review, interfere even if a procedural aberration or error in awarding the contract is made out. The power of judicial review will not be permitted to be invoked to protect private interest by ignoring public interest. Attempts by unsuccessful bidders with an artificial grievance and to get the purpose defeated by approaching the Court on some technical and procedural lapses, should be handled by Courts with firmness. The exercise of the power of judicial review should be avoided if there is no irrationality or arbitrariness. In the matter on hand, we do not find any illegality, arbitrariness, irrationality or unreasonableness on the part of the expert body while in action. So also, we do not find any bias or mala fides either on the part of the corporation or on the part of the technical expert while taking the decision. Moreover, the decision is taken keeping in mind the public interest and the work experience of the successful bidder.Since Global Waste Management Cell Private Limited, i.e., Appellant in Civil Appeal arising from SLP (C) No. 11967 of 2016 secured the highest score, i.e., 84.36, it emerged as the overall eligible bidder for awarding the project as per the terms of NIT. Global Waste Management Cell Private Limited has experience of 10 years and has demonstrated an ability for good responsiveness to tender. Consequently, it was declared L 1 as per the terms of the NIT. As a decision was qualitatively arrived at by the technical expert respondent no. 2, the High Court need not have gone into the merits of such decision as an appellate authority, especially when there was no bias or mala fide.40. It is necessary to note that in Annexure 1 to the NIT at serial no. 11, the bidder was required to set out details of any other company/firm involved as a consortium member to which respondent no.1 – BVG India Limited replied in the negative, which means no other company/firm was involved as a consortium member with BVG India Limited in the process in question. In other words, BVG India Limited submitted the bid on its own unaccompanied by any of the consortium member. Despite the same, BVG India Limited (respondent no.1) furnished the experience certificate of BVG Kshitij Waste Management Services Private Limited. No information whatsoever was given of the relationship/linkage of BVG Kshitij and respondent no.1 – BVG India Limited. Therefore, reliance placed by the respondent no.1 on the purported experience certificate issued in the name of BVG Kshitij Waste Management Services Pvt. Limited would not come to the help of the respondent no.1 to show its work experience. The Pimpri Chinchwad Municipal Corporation (PCMC) Certificate dated 24.10.2013 is in Marathi and the same discloses that the work order was issued on 2.3.2012. The PCMC Certificate thus neither shows three years? experience of BVG India Limited nor that BVG India Limited was carrying out garbage/waste collection of more than 300 MT per day. Since respondent no.1 has categorically mentioned in its bid under thehat no other company (either joint venture or consortium) is involved with BVG India Limited, respondent no.1 – BVG India Limited could not have relied upon the purported experience certificate issued in the name of BVG Kshitij Waste Management Services Pvt. Ltd. Other certificates submitted by the respondent no.1 also did not satisfy the eligibility requirement.41. Moreover, the certificate dated 21.4.2015 relied upon by the High Court in paragraph 16 of the impugned judgment was not part of the original bid document submitted by BVG India Limited and it was submitted before the High Court for the first time as per annexure P6 of the writ petition. Since such certificate was not part of the original bid document, the High Court was not correct in relying upon such certificate produced by BVG India Limited for the first time before it. The Courts will not permit any of the participants in the tender process to alter or supplement the bid document. In the absence of any document evidencing the experience in the field in question in favour of BVG India Ltd., the appellants are justified in contending that the High Court is not correct in increasing the marks from 5 to 7 under the head of number of years of experience and expertise. So also, the High Court was not correct in increasing the marks from 10 to 15 so far as the quantity of municipal solid waste handled per day through door to door collection is concerned. In para 26 of the impugned order, the High Court has evaluated technical eligibility on its own as if the appellate authority and has increased the marks of respondent no.1 for experience from 5 to 7 and for quantity handled per day from 10 to 15, as mentioned supra. The High Court?s observation in para 18 that the certificate issued by PCMC ought to have been considered because it shows the collection of 335 MT per day of municipal solid waste, appears to be incorrect in the light of our discussion made in theparagraphs. So far as the three documents relied upon by respondent no.1 in respect of CIDCO are concerned, those documents do not state that BVG India Limited was handling 300 MT per day municipal solid waste on door to door basis.42. The High Court was also not justified in increasing the marks for responsiveness from 5 to 10. The High Court relied upon the documents pertaining to BBMP and PCMC and has increased the marks from 5 to 10. In our considered opinion, the High Court could not have increased the marks for responsiveness as BVG India Limited had suppressed the fact that it had received show cause notices from BBMP and other corporations. The format ofon page 26 of the NIT indicates that the fourth column is reservedat the tenderer is or has been involved in. Point 4of the same?In how many of your MSW handling/processing projects, show cause notices have been issued for breach ofIndia Limited, while submittingleft the litigation column blank, despite the fact that admittedly, 73notices were issued to it by the BBMP. The fact that these notices were issued is not disputed by BVG India Limited. It instead claimed that the issuance ofnotices does not form part of the litigation.It was clearly stated in the NIT that the tenderer was required to reveal thenotices against it. Despite the specific column pertaining to the same in the bid document, respondent no.1 had left the said column blank. Once there is a specific clause requiring the mentioning of thenotices for the breach of contract, it was incumbent upon the tenderer to provide accurate information. As respondent no.1 has not done so, and has suppressed vital information, respondent no. 2 has rightly allotted it 5 marks for the same. As mentioned supra, respondent no.1 submitted an experience certificate issued by the PCMC in favour of one M/s BVG Kshitij Waste Management Services Pvt. Ltd. No material is produced before the Court to show that M/s BVG Kshitij Waste Management Services Pvt. Ltd. is the same as BVG India Limited or that it is a consortium member. In light of specific averment in the bid document by respondent no.1 that there is no other consortium member which has participated in the tender process along with BVG India Limited, the experience certificate issued in favour of BVG Kshitij Waste Management Services Pvt. Ltd cannot be relied upon to fulfil the eligibility criteria by the BVG India Limited. Respondent no.1 has submitted its bid as an individual bidder and not as a consortium and hence the certificate of a third party could not be considered for the benefit of meeting the technical qualification of respondent no.1. In addition to the same, the respondent no.1 had suppressed 73 show cause notices issued against it by BBMP and District Panchayat, Dadra and Nagar Haveli, Silvasa in respect of the work relating to solid waste management. Despite suppression by the respondent no.1, the technical expert from its own sources gathered information and found that 73 show cause notices were issued by the BBMP and others against respondent no.1, which reveal that respondent no.1 had not shown due diligence in the work of door to door collection of solid waste. Hence, the conclusion reached by the High Court that it was not open for the technical committee to suo motu take into consideration the73 show cause notices issued against the respondent no.1 while evaluating the technical bid is not correct. The due diligence and experience of the expert consultant ought to have been appreciated by the High Court keeping in mind the object to which bids were invited. 73 show cause notices issued to respondent no.1 establish that respondent no.1 did not have a good track record and therefore such notices were necessarily taken into consideration by the technical expert. In all fairness, respondent no.1 ought to have disclosed these factors in its bid. In viewin our considered opinion, the High Court was not justified in increasing the marks for responsiveness from 5 to 10.The method for evaluation of the financial bid as applied by the High Court is also not proper, and is illogical. As mentioned supra, the technical expert, in our considered opinion, has rightly applied the following formula in respect of the bidders so far as financial bids are concerned: FL1 x 20 FL2/FL3/FL4 On the other hand, the High Court has redone the evaluating formula in which multiplication of 20 is not adopted: FL1 FL2/FL3/FL4 Since the multiplication of 20 is not adopted by the High Court (the same rightly adopted by the technical expert in respect of the bidders), the same has led to unreasonableness and a travesty of justice. The formula adopted by the High Court does not stand to reason at all. The NIT has prescribed the method of calculation of marks for the financial bid. The lowest bid, i.e., FL1 will be granted 20 marks. Other parties will thereafter be given scores by the formula (prescribed in Clause 3.1.3 of Article III of the NIT), i.e., FL1/FL2 x 20 = FL2?s financial score. In the matter on hand, FL1 of BVG India Limited was 1454, whereas FL2 was 1710, which was of the successful bidder, i.e., Global Waste Management Cell Pvt. Ltd. Thus, 1454 (FL1) divided by 1710(FL2), multiplied by 20 marks, gives 17 marks to Global Waste Management Cell Pvt. Ltd., so far as the financial bid is concerned. Per contra, the High Court has failed to multiply the ratio of financial bids with marks of 20 and thus has erroneously arrived at the score of 0.85 marks instead of 17 marks.46. The High Court observed in para 25 of the impugned judgment that the technical consultant had wrongly relied upon the certificate dated 16.07.2015 issued by Mira Bhayandar to qualify the successful bidder as the technical expert had prepared the technical evaluation report on 6.6.2015. The observation of the High Court was that, on the date of technical evaluation, the certificate issued by Mira Bhayandar was not in existence. Records reveal that the technical expert had not relied upon the certificate dated 16.07.2015. The said certificate was an additional document submitted for the first time before the High Court along with the reply affidavit as per annexures R4 to R6. Whereas, the document submitted in respect of Mira Bhayandar by the successful bidder was a certificate dated 15.1.2015, which was much prior to the technical evaluation report dated 6.6.2015. The same is clear from Annexureof the counter affidavit filed on behalf of the successful bidder. Therefore, the observations and the findings of the High Court in respect of the certificate issued by Mira Bhayandar are not correct.47. In the matter on hand, we do not find either theprocess or the decision to be arbitrary or irrational.48. The authority concerned is in the best position to find out the best person or the best quotation depending on the work to be entrusted under the contract. If a bidder had faced a number ofnotices from various municipal corporations in the matter ofof door to door collection of garbage etc., the Court cannot compel the authority to choose such undeserving person/company to carry out the work. Ultimately, the public interest must be safeguarded. The public would be directly interested in the timely fulfilment of the contract so that the services become available to the public expeditiously and effectively. The public would also be interested in the quality of work undertaken. Poor quality of work or goods can lead to tremendous public hardship and substantial financial outlay either in correcting mistakes or in rectifying defects or even at times inredoing the entirework. Lethargy or tardiness in collecting door to door garbage on abasis would definitely lead to increase collection of garbage on the roads and public properties, which leads to health hazards and also reduces the cleanliness of the city. Since the public is directly interested and would be affected if the work entrusted is not carried out appropriately, and as the technical expert has found that respondent no.1 would not be a suitable company to be entrusted the work inasmuch as it had faced 73notices from different Municipal Corporations, the High Court could not have interfered with the decision taken by the authority. In our considered opinion, the High Court has ignored the element of public interest involved in the matter.49. As aforementioned, unless the Court concludes that the decision making process or the decision taken by the authority bristles with mala fides, arbitrariness, or perversity, or that the authority has intended to favour someone, the Constitutional Court will not interfere with theprocess or the decision.50. Thus, the questions to be decided in this appeal are answered as follows: (a) Under the scope of judicial review, the High Court could not ordinarily interfere with the judgment of the expert consultant on the issues of technical qualifications of a bidder when the consultant takes into consideration various factors including the basis ofof the bidder;(b) A bidder who submits a bid expressly declaring that it is submitting the same independently and without any partners, consortium or joint venture, cannot rely upon the technical qualifications of any 3 rd Party for its qualification. (c) It is not open to the Court to independently evaluate the technical bids and financial bids of the parties as an appellate authority for coming to its conclusion inasmuch as unless the thresholds of mala fides, intention to favour someone or bias, arbitrariness, irrationality or perversity are met, where a decision is taken purely on public interest, the Court ordinarily should exercise judicial restraint. | 1 | 12,338 | 3,244 | ### Instruction:
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notices were necessarily taken into consideration by the technical expert. In all fairness, respondent no.1 ought to have disclosed these factors in its bid. In view of the same, in our considered opinion, the High Court was not justified in increasing the marks for responsiveness from 5 to 10.2. Evaluation of financial bid:45. The method for evaluation of the financial bid as applied by the High Court is also not proper, and is illogical. As mentioned supra, the technical expert, in our considered opinion, has rightly applied the following formula in respect of the bidders so far as financial bids are concerned: FL1 x 20 FL2/FL3/FL4 On the other hand, the High Court has redone the evaluating formula in which multiplication of 20 is not adopted: FL1 FL2/FL3/FL4 Since the multiplication of 20 is not adopted by the High Court (the same rightly adopted by the technical expert in respect of the bidders), the same has led to unreasonableness and a travesty of justice. The formula adopted by the High Court does not stand to reason at all. The NIT has prescribed the method of calculation of marks for the financial bid. The lowest bid, i.e., FL1 will be granted 20 marks. Other parties will thereafter be given scores by the formula (prescribed in Clause 3.1.3 of Article III of the NIT), i.e., FL1/FL2 x 20 = FL2?s financial score. In the matter on hand, FL1 of BVG India Limited was 1454, whereas FL2 was 1710, which was of the successful bidder, i.e., Global Waste Management Cell Pvt. Ltd. Thus, 1454 (FL1) divided by 1710(FL2), multiplied by 20 marks, gives 17 marks to Global Waste Management Cell Pvt. Ltd., so far as the financial bid is concerned. Per contra, the High Court has failed to multiply the ratio of financial bids with marks of 20 and thus has erroneously arrived at the score of 0.85 marks instead of 17 marks.46. The High Court observed in para 25 of the impugned judgment that the technical consultant had wrongly relied upon the certificate dated 16.07.2015 issued by Mira Bhayandar to qualify the successful bidder as the technical expert had prepared the technical evaluation report on 6.6.2015. The observation of the High Court was that, on the date of technical evaluation, the certificate issued by Mira Bhayandar was not in existence. Records reveal that the technical expert had not relied upon the certificate dated 16.07.2015. The said certificate was an additional document submitted for the first time before the High Court along with the reply affidavit as per annexures R4 to R6. Whereas, the document submitted in respect of Mira Bhayandar by the successful bidder was a certificate dated 15.1.2015, which was much prior to the technical evaluation report dated 6.6.2015. The same is clear from Annexure R-21 of the counter affidavit filed on behalf of the successful bidder. Therefore, the observations and the findings of the High Court in respect of the certificate issued by Mira Bhayandar are not correct.47. In the matter on hand, we do not find either the decision-making process or the decision to be arbitrary or irrational.48. The authority concerned is in the best position to find out the best person or the best quotation depending on the work to be entrusted under the contract. If a bidder had faced a number of show-cause notices from various municipal corporations in the matter of non-performance of door to door collection of garbage etc., the Court cannot compel the authority to choose such undeserving person/company to carry out the work. Ultimately, the public interest must be safeguarded. The public would be directly interested in the timely fulfilment of the contract so that the services become available to the public expeditiously and effectively. The public would also be interested in the quality of work undertaken. Poor quality of work or goods can lead to tremendous public hardship and substantial financial outlay either in correcting mistakes or in rectifying defects or even at times in re-doing the entire work. Lethargy or tardiness in collecting door to door garbage on a day-to-day basis would definitely lead to increase collection of garbage on the roads and public properties, which leads to health hazards and also reduces the cleanliness of the city. Since the public is directly interested and would be affected if the work entrusted is not carried out appropriately, and as the technical expert has found that respondent no.1 would not be a suitable company to be entrusted the work inasmuch as it had faced 73 show-cause notices from different Municipal Corporations, the High Court could not have interfered with the decision taken by the authority. In our considered opinion, the High Court has ignored the element of public interest involved in the matter.49. As aforementioned, unless the Court concludes that the decision making process or the decision taken by the authority bristles with mala fides, arbitrariness, or perversity, or that the authority has intended to favour someone, the Constitutional Court will not interfere with the decision-making process or the decision.50. Thus, the questions to be decided in this appeal are answered as follows: (a) Under the scope of judicial review, the High Court could not ordinarily interfere with the judgment of the expert consultant on the issues of technical qualifications of a bidder when the consultant takes into consideration various factors including the basis of non-performance of the bidder; (b) A bidder who submits a bid expressly declaring that it is submitting the same independently and without any partners, consortium or joint venture, cannot rely upon the technical qualifications of any 3 rd Party for its qualification. (c) It is not open to the Court to independently evaluate the technical bids and financial bids of the parties as an appellate authority for coming to its conclusion inasmuch as unless the thresholds of mala fides, intention to favour someone or bias, arbitrariness, irrationality or perversity are met, where a decision is taken purely on public interest, the Court ordinarily should exercise judicial restraint.
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object to which bids were invited. 73 show cause notices issued to respondent no.1 establish that respondent no.1 did not have a good track record and therefore such notices were necessarily taken into consideration by the technical expert. In all fairness, respondent no.1 ought to have disclosed these factors in its bid. In viewin our considered opinion, the High Court was not justified in increasing the marks for responsiveness from 5 to 10.The method for evaluation of the financial bid as applied by the High Court is also not proper, and is illogical. As mentioned supra, the technical expert, in our considered opinion, has rightly applied the following formula in respect of the bidders so far as financial bids are concerned: FL1 x 20 FL2/FL3/FL4 On the other hand, the High Court has redone the evaluating formula in which multiplication of 20 is not adopted: FL1 FL2/FL3/FL4 Since the multiplication of 20 is not adopted by the High Court (the same rightly adopted by the technical expert in respect of the bidders), the same has led to unreasonableness and a travesty of justice. The formula adopted by the High Court does not stand to reason at all. The NIT has prescribed the method of calculation of marks for the financial bid. The lowest bid, i.e., FL1 will be granted 20 marks. Other parties will thereafter be given scores by the formula (prescribed in Clause 3.1.3 of Article III of the NIT), i.e., FL1/FL2 x 20 = FL2?s financial score. In the matter on hand, FL1 of BVG India Limited was 1454, whereas FL2 was 1710, which was of the successful bidder, i.e., Global Waste Management Cell Pvt. Ltd. Thus, 1454 (FL1) divided by 1710(FL2), multiplied by 20 marks, gives 17 marks to Global Waste Management Cell Pvt. Ltd., so far as the financial bid is concerned. Per contra, the High Court has failed to multiply the ratio of financial bids with marks of 20 and thus has erroneously arrived at the score of 0.85 marks instead of 17 marks.46. The High Court observed in para 25 of the impugned judgment that the technical consultant had wrongly relied upon the certificate dated 16.07.2015 issued by Mira Bhayandar to qualify the successful bidder as the technical expert had prepared the technical evaluation report on 6.6.2015. The observation of the High Court was that, on the date of technical evaluation, the certificate issued by Mira Bhayandar was not in existence. Records reveal that the technical expert had not relied upon the certificate dated 16.07.2015. The said certificate was an additional document submitted for the first time before the High Court along with the reply affidavit as per annexures R4 to R6. Whereas, the document submitted in respect of Mira Bhayandar by the successful bidder was a certificate dated 15.1.2015, which was much prior to the technical evaluation report dated 6.6.2015. The same is clear from Annexureof the counter affidavit filed on behalf of the successful bidder. Therefore, the observations and the findings of the High Court in respect of the certificate issued by Mira Bhayandar are not correct.47. In the matter on hand, we do not find either theprocess or the decision to be arbitrary or irrational.48. The authority concerned is in the best position to find out the best person or the best quotation depending on the work to be entrusted under the contract. If a bidder had faced a number ofnotices from various municipal corporations in the matter ofof door to door collection of garbage etc., the Court cannot compel the authority to choose such undeserving person/company to carry out the work. Ultimately, the public interest must be safeguarded. The public would be directly interested in the timely fulfilment of the contract so that the services become available to the public expeditiously and effectively. The public would also be interested in the quality of work undertaken. Poor quality of work or goods can lead to tremendous public hardship and substantial financial outlay either in correcting mistakes or in rectifying defects or even at times inredoing the entirework. Lethargy or tardiness in collecting door to door garbage on abasis would definitely lead to increase collection of garbage on the roads and public properties, which leads to health hazards and also reduces the cleanliness of the city. Since the public is directly interested and would be affected if the work entrusted is not carried out appropriately, and as the technical expert has found that respondent no.1 would not be a suitable company to be entrusted the work inasmuch as it had faced 73notices from different Municipal Corporations, the High Court could not have interfered with the decision taken by the authority. In our considered opinion, the High Court has ignored the element of public interest involved in the matter.49. As aforementioned, unless the Court concludes that the decision making process or the decision taken by the authority bristles with mala fides, arbitrariness, or perversity, or that the authority has intended to favour someone, the Constitutional Court will not interfere with theprocess or the decision.50. Thus, the questions to be decided in this appeal are answered as follows: (a) Under the scope of judicial review, the High Court could not ordinarily interfere with the judgment of the expert consultant on the issues of technical qualifications of a bidder when the consultant takes into consideration various factors including the basis ofof the bidder;(b) A bidder who submits a bid expressly declaring that it is submitting the same independently and without any partners, consortium or joint venture, cannot rely upon the technical qualifications of any 3 rd Party for its qualification. (c) It is not open to the Court to independently evaluate the technical bids and financial bids of the parties as an appellate authority for coming to its conclusion inasmuch as unless the thresholds of mala fides, intention to favour someone or bias, arbitrariness, irrationality or perversity are met, where a decision is taken purely on public interest, the Court ordinarily should exercise judicial restraint.
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RASHITRIYA CHEMICALS & FERTILIZERS LTD Vs. GENERAL EMPLOYEES ASSOCIATION AND OTHERS | Petitioner-Respondent No. 1 herein filed Contempt Petition No. 189 of 1998 which was disposed of by a Single Judge of that court by order dated 16th-18th February, 2005. In the said contempt petition, the High Court held that the Respondents (Appellant-company) had not committed any deliberate breach of the directions issued by the court so as to call for any action in contempt against it. Even so the High Court noticed that there was a dispute regarding the rate of wages payable to the contract workers employed by the Appellant-company which required adjudication. The writ Petitioners in the original petition were for that purpose given liberty to approach the Labour Court by way of an application Under Section 33-C(2) of the Industrial Disputes Act, 1947. Having said so, the High Court appears to have declined the release of a sum of Rs. 30 lakhs deposited by the Appellant before the High Court pursuant to an order issued to that effect on the ground that the said amount could be utilised for meeting the liability, if any, adjudged against the Appellant-company in proceedings Under Section 33-C(2) of the Industrial Disputes Act, 1947. Aggrieved by the order passed by the Single Judge declining to release the amount of Rs. 30 lakhs deposited by the Appellant, the Appellant filed Contempt Appeal No. 1 of 2005 which was dismissed by the Division Bench of that court on the ground that no such appeal was maintainable in terms of Section 19 of the Contempt of Courts Act, 1971. The present appeals by special leave assail the correctness of the orders passed by the Single Judge as well as the Division Bench, as noticed above. 2. When the matter initially came up for hearing before a Bench of this Court comprising Hon. S.B. Sinha and Dalveer Bhandari, JJ. on 7th July, 2006, this Court noticed an apparent conflict in the decisions rendered by this Court in R.N. Dey and Others Vs. Bhagyabati Pramanik and Others, and V.M. Manohar Prasad v. N. Ratnam Raju and Anr. (2004) 13 SCC 610 on the one hand and the decision of this Court in State of Maharashtra Vs. Mahboob S. Allibhoy and another, on the other. The appeals were accordingly directed to be placed before a Larger Bench to resolve the conflict. That is precisely how this appeal has been listed before us for hearing. 3. The appeals thereafter came up before this Court on 29th April, 2014 for hearing when we noticed that no one had entered appearance on behalf of Respondent No. 1 despite service. Even so and keeping in view the importance of the issues referred to us for adjudication, we had requested Mr. Shekhar Naphade, Senior Advocate, to assist us as amicus. 4. We have accordingly heard Mr. Prateek Jalan, learned Counsel appearing for the Appellant-company, and learned Amicus today. On behalf of the Appellant-company, it was argued by Mr. Jalan that Respondent No. 1-Association has since been disbanded which explains the reasons why no one has entered appearance on its behalf despite notice. It was further contended that according to the instructions received from the Appellant-company, no petition Under Section 33-C(2) of the Industrial Disputes Act, 1947 has been moved by Respondent No. 1-Association or any other person for that matter, requiring an adjudication on the question of wages payable to the employees at the relevant point of time. Both the circumstances, it was contended, make it unnecessary for this Court to look into the matter or to resolve the apparent conflict noticed in the order of reference. It was further submitted that the Appellant is a public sector undertaking in which the Central Government holds 80% equity share. That apart, the company is a solvent company and has sufficient resources to discharge any liability that may arise on account of any differential wages/amount found payable to the employees in any proceedings already initiated or that may be initiated in future. It was submitted that without going into the question whether the contempt appeal filed by the Appellant was maintainable, this Court could modify the order passed by the learned single Judge of the High Court to the extent the said order declined release of the money, deposited by the Appellant, and directed its retention till such time the adjudication took place. The fact that no application Under Section 33-C(2) of the Industrial Disputes Act, 1947 has been filed for the past nearly 10 years and even the Association itself disbanded, clearly suggest that there is no immediate liability nor is there any possibility of any such adjudication taking place in near future. Detaining the entire amount of Rs. 30 lakhs deposited by the Appellant for discharge of any liability that may but appears to be unlikely to arise even in the future is therefore not a very prudent course of action, argued by learned Counsel for the Appellant-company. Mr. Shekhar Naphade, learned amicus, submitted that keeping in view the factual assertions made at the Bar on behalf of the Appellant-company there should be no difficulty in directing release of the amount deposited by the Appellant-company together with interest, if any accrued on the same, with the observation that the Appellant-company shall meet the liability as and when the same is determined and keep sufficient resources available for that purpose. In the circumstances, therefore, and keeping in view the fact that Respondent No. 1-Association has not appeared to contest the present proceedings nor is there anything to suggest that any petition Under Section 33-C(2) of the Industrial Disputes Act, 1947 was filed at any stage, so also the fact that the Appellant happens to be a solvent company and has sufficient resources to meet the liability that may arise on account of any differential wages held payable to the employees by the said company, we are of the view that the amount of Rs. 30 lakhs, lying in deposit before the High Court of Judicature at Bombay, can be released in favour of the Appellant-Company. | 1[ds]In the circumstances, therefore, and keeping in view the fact that Respondent No. 1-Association has not appeared to contest the present proceedings nor is there anything to suggest that any petition Under Section 33-C(2) of the Industrial Disputes Act, 1947 was filed at any stage, so also the fact that the Appellant happens to be a solvent company and has sufficient resources to meet the liability that may arise on account of any differential wages held payable to the employees by the said company, we are of the view that the amount of Rs. 30 lakhs, lying in deposit before the High Court of Judicature at Bombay, can be released in favour of the Appellant-Company. | 1 | 1,262 | 132 | ### 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:
Petitioner-Respondent No. 1 herein filed Contempt Petition No. 189 of 1998 which was disposed of by a Single Judge of that court by order dated 16th-18th February, 2005. In the said contempt petition, the High Court held that the Respondents (Appellant-company) had not committed any deliberate breach of the directions issued by the court so as to call for any action in contempt against it. Even so the High Court noticed that there was a dispute regarding the rate of wages payable to the contract workers employed by the Appellant-company which required adjudication. The writ Petitioners in the original petition were for that purpose given liberty to approach the Labour Court by way of an application Under Section 33-C(2) of the Industrial Disputes Act, 1947. Having said so, the High Court appears to have declined the release of a sum of Rs. 30 lakhs deposited by the Appellant before the High Court pursuant to an order issued to that effect on the ground that the said amount could be utilised for meeting the liability, if any, adjudged against the Appellant-company in proceedings Under Section 33-C(2) of the Industrial Disputes Act, 1947. Aggrieved by the order passed by the Single Judge declining to release the amount of Rs. 30 lakhs deposited by the Appellant, the Appellant filed Contempt Appeal No. 1 of 2005 which was dismissed by the Division Bench of that court on the ground that no such appeal was maintainable in terms of Section 19 of the Contempt of Courts Act, 1971. The present appeals by special leave assail the correctness of the orders passed by the Single Judge as well as the Division Bench, as noticed above. 2. When the matter initially came up for hearing before a Bench of this Court comprising Hon. S.B. Sinha and Dalveer Bhandari, JJ. on 7th July, 2006, this Court noticed an apparent conflict in the decisions rendered by this Court in R.N. Dey and Others Vs. Bhagyabati Pramanik and Others, and V.M. Manohar Prasad v. N. Ratnam Raju and Anr. (2004) 13 SCC 610 on the one hand and the decision of this Court in State of Maharashtra Vs. Mahboob S. Allibhoy and another, on the other. The appeals were accordingly directed to be placed before a Larger Bench to resolve the conflict. That is precisely how this appeal has been listed before us for hearing. 3. The appeals thereafter came up before this Court on 29th April, 2014 for hearing when we noticed that no one had entered appearance on behalf of Respondent No. 1 despite service. Even so and keeping in view the importance of the issues referred to us for adjudication, we had requested Mr. Shekhar Naphade, Senior Advocate, to assist us as amicus. 4. We have accordingly heard Mr. Prateek Jalan, learned Counsel appearing for the Appellant-company, and learned Amicus today. On behalf of the Appellant-company, it was argued by Mr. Jalan that Respondent No. 1-Association has since been disbanded which explains the reasons why no one has entered appearance on its behalf despite notice. It was further contended that according to the instructions received from the Appellant-company, no petition Under Section 33-C(2) of the Industrial Disputes Act, 1947 has been moved by Respondent No. 1-Association or any other person for that matter, requiring an adjudication on the question of wages payable to the employees at the relevant point of time. Both the circumstances, it was contended, make it unnecessary for this Court to look into the matter or to resolve the apparent conflict noticed in the order of reference. It was further submitted that the Appellant is a public sector undertaking in which the Central Government holds 80% equity share. That apart, the company is a solvent company and has sufficient resources to discharge any liability that may arise on account of any differential wages/amount found payable to the employees in any proceedings already initiated or that may be initiated in future. It was submitted that without going into the question whether the contempt appeal filed by the Appellant was maintainable, this Court could modify the order passed by the learned single Judge of the High Court to the extent the said order declined release of the money, deposited by the Appellant, and directed its retention till such time the adjudication took place. The fact that no application Under Section 33-C(2) of the Industrial Disputes Act, 1947 has been filed for the past nearly 10 years and even the Association itself disbanded, clearly suggest that there is no immediate liability nor is there any possibility of any such adjudication taking place in near future. Detaining the entire amount of Rs. 30 lakhs deposited by the Appellant for discharge of any liability that may but appears to be unlikely to arise even in the future is therefore not a very prudent course of action, argued by learned Counsel for the Appellant-company. Mr. Shekhar Naphade, learned amicus, submitted that keeping in view the factual assertions made at the Bar on behalf of the Appellant-company there should be no difficulty in directing release of the amount deposited by the Appellant-company together with interest, if any accrued on the same, with the observation that the Appellant-company shall meet the liability as and when the same is determined and keep sufficient resources available for that purpose. In the circumstances, therefore, and keeping in view the fact that Respondent No. 1-Association has not appeared to contest the present proceedings nor is there anything to suggest that any petition Under Section 33-C(2) of the Industrial Disputes Act, 1947 was filed at any stage, so also the fact that the Appellant happens to be a solvent company and has sufficient resources to meet the liability that may arise on account of any differential wages held payable to the employees by the said company, we are of the view that the amount of Rs. 30 lakhs, lying in deposit before the High Court of Judicature at Bombay, can be released in favour of the Appellant-Company.
### Response:
1
### Explanation:
In the circumstances, therefore, and keeping in view the fact that Respondent No. 1-Association has not appeared to contest the present proceedings nor is there anything to suggest that any petition Under Section 33-C(2) of the Industrial Disputes Act, 1947 was filed at any stage, so also the fact that the Appellant happens to be a solvent company and has sufficient resources to meet the liability that may arise on account of any differential wages held payable to the employees by the said company, we are of the view that the amount of Rs. 30 lakhs, lying in deposit before the High Court of Judicature at Bombay, can be released in favour of the Appellant-Company.
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Kanailal Vs. Ram Chandra Singh | S.A.T. No.1082 of 1999 (re-numbered as S.A. No. 740 of 1999) before the High Court. By impugned judgment, the High Court dismissed the appeal in limine, which has given rise to filing of this appeal by special leave before this Court by the defendants. 7. The impugned order reads as under :"This appeal is summarily dismissed under Order 41 Rule 11 of the Code of Civil Procedure. There will be no order as to costs."8. Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow the appeal and while setting aside of the impugned order, remand the case to the High Court for deciding the second appeal afresh after framing proper substantial questions of law, if found to arise in the case. 9. Mere perusal of the impugned order quoted supra would go to show that the High Court while deciding the appeal neither set out the facts nor the submissions urged by the appellants in support of their appeal and nor given any reason as to why the submissions urged by the appellants have no merit and why the appeal does not involve any substantial question of law as is required to be made out under Section 100 of the Code. (See- 2011 (6) SCC 455 - Jayanmti De & Anr. v. Abani Kanta Barat and Ors., 2001(3) R.C.R.(Civil) 645 : (2011) 6 SCC 455 and Santosh Hazari v. Purushottam Tiwari (Deceased) by L.Rs., 2001(3) R.C.R.(Civil) 243 : (2001) 3 SCC 179 ). 10. This Court has consistently emphasized the need for assigning reasons in support of its conclusion and while doing so must deal with all the issues raised by the parties to the lis. Indeed, this Court has made the following very pertinent observations on this issue in Union of India & Ors. v. Jai Prakash Singh & Ors., (2007) 10 SCC 712 which read as under:"Reasons introduce clarity in an order. On plainest consideration of justice, the High Court ought to have set forth its reasons, howsoever brief, in its order indicative of an application of its mind, all the more when its order is amenable to further avenue of challenge. The absence of reasons has rendered the High Courts judgment not sustainable. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at. Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the `inscrutable face of the sphinx, it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The `inscrutable face of a sphinx is ordinarily incongruous with a judicial or quasi-judicial performance."11. That apart, Order 41 Rule 31 of the Code which deals with the contents, date and the signature of judgment is also apposite to take note of. It reads as under:"31. Contents, date and signature of judgment.- The judgment of the Appellate Court shall be in writing and shall state- (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled, and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring there in."12. It is clear from mere reading of the Rule 31(a) to (d) that it makes it legally obligatory upon the Appellate Court (both-first and second Appellate Court) as to what should the judgment of the Appellate Court contain. 13. Sub-clause(a) provides that the judgment must formulate and state the points arising in the case for determination. Sub-clause(b) provides that the Court must give decision on such points and sub- clause(c) provides that the judgment shall state the reasons for the decision. So far as sub-clause (d) is concerned, it applies in those cases where the Appellate Court has reversed the decree. In such case, the Court has to specify the relief to which the appellant has become entitled to as a result of the decree having been reversed in appeal at his instance. 14. While deciding the second appeal which lies only to the High Court, the Court has to further ensure compliance of the requirements of Section 100 of the Code in addition to the requirements of Order 41 Rule 31 of the Code set out above. 15. In other words, the High Court while hearing the second appeal at the time of its admission has to first find out whether the second appeal involves any substantial question(s) of law and if the Court finds that the appeal does involve any substantial question(s) of law then such question(s) is/are required to be formulated. The appeal can be then heard finally only on such formulated question(s). (See Santosh Hazari (supra). 16. If however, the Court, at the time of hearing the appeal on the question of admission, comes to a conclusion that the appeal does not involve any such question within the meaning of Section 100 of the Code, then it has to pass a reasoned order keeping in view the requirements of Order 41 Rule 31 set out above. Indeed, this being the mandatory requirements of law, its non-compliance by the Appellate Court render their judgment bad in law. 17. As mentioned above, since the judgment impugned does not satisfy the requirements of either Section 100 or/and Order 41 Rule 31 of the Code, it is legally unsustainable. | 1[ds]8. Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow the appeal and while setting aside of the impugned order, remand the case to the High Court for deciding the second appeal afresh after framing proper substantial questions of law, if found to arise in the case.Mere perusal of the impugned order quoted supra would go to show that the High Court while deciding the appeal neither set out the facts nor the submissions urged by the appellants in support of their appeal and nor given any reason as to why the submissions urged by the appellants have no merit and why the appeal does not involve any substantial question of law as is required to be made out under Section 100 of the Code.It is clear from mere reading of the Rule 31(a) to (d) that it makes it legally obligatory upon the Appellate Courtand second Appellate Court) as to what should the judgment of the Appellate Court contain.) provides that the judgment must formulate and state the points arising in the case for determination.provides that the Court must give decision on such points and subclause(c) provides that the judgment shall state the reasons for the decision. So far as(d) is concerned, it applies in those cases where the Appellate Court has reversed the decree. In such case, the Court has to specify the relief to which the appellant has become entitled to as a result of the decree having been reversed in appeal at his. While deciding the second appeal which lies only to the High Court, the Court has to further ensure compliance of the requirements of Section 100 of the Code in addition to the requirements of Order 41 Rule 31 of the Code set out above.In other words, the High Court while hearing the second appeal at the time of its admission has to first find out whetherthe second appeal involves any substantial question(s) of lawand if the Court finds that the appeal does involve any substantial question(s) of law then such question(s) is/are required to be formulated. The appeal can be then heard finally only on such formulated question(s). (See Santosh Hazari (supra).If however, the Court, at the time of hearing the appeal on the question of admission, comes to a conclusion that the appeal does not involve any such question within the meaning of Section 100 of the Code, then it has to pass a reasoned order keeping in view the requirements of Order 41 Rule 31 set out above. Indeed, this being the mandatory requirements of law, itsby the Appellate Court render their judgment bad in law.As mentioned above, since the judgment impugned does not satisfy the requirements of either Section 100 or/and Order 41 Rule 31 of the Code, it is legally unsustainable. | 1 | 1,449 | 532 | ### 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:
S.A.T. No.1082 of 1999 (re-numbered as S.A. No. 740 of 1999) before the High Court. By impugned judgment, the High Court dismissed the appeal in limine, which has given rise to filing of this appeal by special leave before this Court by the defendants. 7. The impugned order reads as under :"This appeal is summarily dismissed under Order 41 Rule 11 of the Code of Civil Procedure. There will be no order as to costs."8. Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow the appeal and while setting aside of the impugned order, remand the case to the High Court for deciding the second appeal afresh after framing proper substantial questions of law, if found to arise in the case. 9. Mere perusal of the impugned order quoted supra would go to show that the High Court while deciding the appeal neither set out the facts nor the submissions urged by the appellants in support of their appeal and nor given any reason as to why the submissions urged by the appellants have no merit and why the appeal does not involve any substantial question of law as is required to be made out under Section 100 of the Code. (See- 2011 (6) SCC 455 - Jayanmti De & Anr. v. Abani Kanta Barat and Ors., 2001(3) R.C.R.(Civil) 645 : (2011) 6 SCC 455 and Santosh Hazari v. Purushottam Tiwari (Deceased) by L.Rs., 2001(3) R.C.R.(Civil) 243 : (2001) 3 SCC 179 ). 10. This Court has consistently emphasized the need for assigning reasons in support of its conclusion and while doing so must deal with all the issues raised by the parties to the lis. Indeed, this Court has made the following very pertinent observations on this issue in Union of India & Ors. v. Jai Prakash Singh & Ors., (2007) 10 SCC 712 which read as under:"Reasons introduce clarity in an order. On plainest consideration of justice, the High Court ought to have set forth its reasons, howsoever brief, in its order indicative of an application of its mind, all the more when its order is amenable to further avenue of challenge. The absence of reasons has rendered the High Courts judgment not sustainable. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at. Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the `inscrutable face of the sphinx, it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The `inscrutable face of a sphinx is ordinarily incongruous with a judicial or quasi-judicial performance."11. That apart, Order 41 Rule 31 of the Code which deals with the contents, date and the signature of judgment is also apposite to take note of. It reads as under:"31. Contents, date and signature of judgment.- The judgment of the Appellate Court shall be in writing and shall state- (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled, and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring there in."12. It is clear from mere reading of the Rule 31(a) to (d) that it makes it legally obligatory upon the Appellate Court (both-first and second Appellate Court) as to what should the judgment of the Appellate Court contain. 13. Sub-clause(a) provides that the judgment must formulate and state the points arising in the case for determination. Sub-clause(b) provides that the Court must give decision on such points and sub- clause(c) provides that the judgment shall state the reasons for the decision. So far as sub-clause (d) is concerned, it applies in those cases where the Appellate Court has reversed the decree. In such case, the Court has to specify the relief to which the appellant has become entitled to as a result of the decree having been reversed in appeal at his instance. 14. While deciding the second appeal which lies only to the High Court, the Court has to further ensure compliance of the requirements of Section 100 of the Code in addition to the requirements of Order 41 Rule 31 of the Code set out above. 15. In other words, the High Court while hearing the second appeal at the time of its admission has to first find out whether the second appeal involves any substantial question(s) of law and if the Court finds that the appeal does involve any substantial question(s) of law then such question(s) is/are required to be formulated. The appeal can be then heard finally only on such formulated question(s). (See Santosh Hazari (supra). 16. If however, the Court, at the time of hearing the appeal on the question of admission, comes to a conclusion that the appeal does not involve any such question within the meaning of Section 100 of the Code, then it has to pass a reasoned order keeping in view the requirements of Order 41 Rule 31 set out above. Indeed, this being the mandatory requirements of law, its non-compliance by the Appellate Court render their judgment bad in law. 17. As mentioned above, since the judgment impugned does not satisfy the requirements of either Section 100 or/and Order 41 Rule 31 of the Code, it is legally unsustainable.
### Response:
1
### Explanation:
8. Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow the appeal and while setting aside of the impugned order, remand the case to the High Court for deciding the second appeal afresh after framing proper substantial questions of law, if found to arise in the case.Mere perusal of the impugned order quoted supra would go to show that the High Court while deciding the appeal neither set out the facts nor the submissions urged by the appellants in support of their appeal and nor given any reason as to why the submissions urged by the appellants have no merit and why the appeal does not involve any substantial question of law as is required to be made out under Section 100 of the Code.It is clear from mere reading of the Rule 31(a) to (d) that it makes it legally obligatory upon the Appellate Courtand second Appellate Court) as to what should the judgment of the Appellate Court contain.) provides that the judgment must formulate and state the points arising in the case for determination.provides that the Court must give decision on such points and subclause(c) provides that the judgment shall state the reasons for the decision. So far as(d) is concerned, it applies in those cases where the Appellate Court has reversed the decree. In such case, the Court has to specify the relief to which the appellant has become entitled to as a result of the decree having been reversed in appeal at his. While deciding the second appeal which lies only to the High Court, the Court has to further ensure compliance of the requirements of Section 100 of the Code in addition to the requirements of Order 41 Rule 31 of the Code set out above.In other words, the High Court while hearing the second appeal at the time of its admission has to first find out whetherthe second appeal involves any substantial question(s) of lawand if the Court finds that the appeal does involve any substantial question(s) of law then such question(s) is/are required to be formulated. The appeal can be then heard finally only on such formulated question(s). (See Santosh Hazari (supra).If however, the Court, at the time of hearing the appeal on the question of admission, comes to a conclusion that the appeal does not involve any such question within the meaning of Section 100 of the Code, then it has to pass a reasoned order keeping in view the requirements of Order 41 Rule 31 set out above. Indeed, this being the mandatory requirements of law, itsby the Appellate Court render their judgment bad in law.As mentioned above, since the judgment impugned does not satisfy the requirements of either Section 100 or/and Order 41 Rule 31 of the Code, it is legally unsustainable.
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Commnr. Of Sales Tax, M.P. Vs. M/S. Subhash & Company | 1922. All that Sections 11(4) and 11A(1) prescribe is that before taking proceedings against an assessee under those provisions, he should be given a reasonable opportunity of being heard. In fact, those sections do not speak of any notice. But Rule 32 prescribes the manner in which the reasonable opportunity contemplated by those provisions should be afforded to the assessee. The period of 30 days prescribed in Rule 32 is not mandatory. The rule itself says that ordinarily note less than 30 days notice should be given. Therefore, the only question to be decided is whether the defects noticed in those notices had prejudiced the appellants. It may be noted that when the assessees received the notices in question, they appeared before the assessing authority, but they did not object to the validity of those notices. They asked for time for submitting their explanation. The time asked for was given. Therefore, the fact that only nine days were given to them for submitting explanation could not have in any manner prejudiced them. So far as the mistake in the notice as regards the assessment year is concerned, the assessees kept silent about that circumstance till 1958. It was only when they were sure that the period of limitation prescribed by Section 11A had expired, they brought, that fact to the notice of the assessing authority. It is clear that the appellants were merely trying to take advantage of the mistakes that had crept into the notices. They cannot be permitted to do so. We fail to see why those notices are not valid in respect of the periods commencing from February 1, 1953 till 31.10.55. We are unable to agree with Mr. Gokhales contention that each one of those notices should be read separately and that we should not consider them together. If those notices are read together as we think they should be, then it is clear that those notices given the appellants the reasonable opportunity contemplated by Sections 11(4) (a) and 11-A(1). In Chatturam vs. Commr. of Income Tax Bihar, (1947 (15) ITR 302) = (AIR 1947 FC 32), the Federal Court held that any irregularity in issuing a notice under S. 22 of the Income Tax Act, 1922 does not vitiate the proceeding: that the income tax assessment proceedings commence with the issue of the notice but the issue or receipt of the notice is, however, not the foundation of the jurisdiction of the income tax officer to make the assessment or of the liability of the assessee to pay the tax. The liability to pay the tax is founded on Sections 3 and 4 of the Income Tax Act which are the charging sections, Section 22 and others are the machinery sections to determine the amount of tax. The ratio of that decision applies to the facts of the present case. In our opinion, the notices issued in the year 1955 are valid notices so far as they relate to the period commencing from February 1, 1953 to October 31. 1955". 21. Whenever an order is struck down as invalid being violation of principles of natural justice, there is no final decision of the case and, therefore, proceedings are left open. All that is done is that the order assailed by virtue of its inherent defect is vacated but the proceedings are not terminated. (See Guduthur Bros vs. Income Tax Officer, Special Circle, Bangalore (1960 (40) ITR 298 SC) and Superintendent (Tech. I) Central Excise, I.D.D. Jabalpur and others vs. Pratap Rai (1978 (114) ITR 231 SC). In Commissioner of Sales Tax, U.P. vs. R.P. Dixit Saghidar (2001 (9) SCC 324 ), it was held as follows: "We are unable to subscribe to the view of the High Court. The aforementioned passage quoted from the Tribunals order shows that the Tribunal was of the view that once the order is quashed by the Assistant Commissioner, he could not in law remand the case for a decision afresh. As has been noted, before the Assistant Commissioner the counsel for the respondent had contended that the exparte order should have been set aside because no notice had been received. When principles of natural justice are stated to have been violated it is open to the appellate authority, in appropriate cases, to set aside the order and require the Assessing Officer to decide the cases de novo. This is precisely what was directed by the Assistant Commissioner and the Tribunal. In our opinion, was clearly in error in taking a contrary view." The view is clearly applicable to the facts of the present case. 22. The emerging principles are:- (i) Non-issue of notice or mistake in the issue of notice or defective service of notice does not affect the jurisdiction of the assessing officer, if otherwise reasonable opportunity of being heard has been given:(ii) Issue of notice as prescribed in the Rules constitutes a part of reasonable opportunity of being heard.(iii) If prejudice has been caused by non-issue or invalid services of notice the proceeding would be vitiated. But irregular service of notice would not render the proceedings invalid: more so, if assessee by his conduct has rendered service impracticable or impossible.(iv) In a given case when the principles of natural justice are stated to have been violated it is open to the appellate authority in appropriate cases to set aside the order and require the Assessing Official to decide the case de novo. 23. In the instant case, the learned Single Judge and the Division Bench have not considered the question of prejudice, grant of reasonable opportunity in the aforesaid perspective. 24. In view of what has been stated in R.P. Dixits case (supra), learned Single Judge was justified in directing de novo assessment by an order of remand. The direction was appropriate as the only ground on which the interference was made related to the violation of principles of natural justice by alleged improper service of notice. The Division Bench was not justified in upsetting the direction. | 1[ds]22. The emerging principlesNon-issue of notice or mistake in the issue of notice or defective service of notice does not affect the jurisdiction of the assessing officer, if otherwise reasonable opportunity of being heard has been given:(ii) Issue of notice as prescribed in the Rules constitutes a part of reasonable opportunity of being heard.(iii) If prejudice has been caused by non-issue or invalid services of notice the proceeding would be vitiated. But irregular service of notice would not render the proceedings invalid: more so, if assessee by his conduct has rendered service impracticable or impossible.(iv) In a given case when the principles of natural justice are stated to have been violated it is open to the appellate authority in appropriate cases to set aside the order and require the Assessing Official to decide the case de novo.In the instant case, the learned Single Judge and the Division Bench have not considered the question of prejudice, grant of reasonable opportunity in the aforesaidJudge was justified in directing de novo assessment by an order of remand. The direction was appropriate as the only ground on which the interference was made related to the violation of principles of natural justice by alleged improper service of notice. The Division Bench was not justified in upsetting the direction. | 1 | 3,632 | 239 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
1922. All that Sections 11(4) and 11A(1) prescribe is that before taking proceedings against an assessee under those provisions, he should be given a reasonable opportunity of being heard. In fact, those sections do not speak of any notice. But Rule 32 prescribes the manner in which the reasonable opportunity contemplated by those provisions should be afforded to the assessee. The period of 30 days prescribed in Rule 32 is not mandatory. The rule itself says that ordinarily note less than 30 days notice should be given. Therefore, the only question to be decided is whether the defects noticed in those notices had prejudiced the appellants. It may be noted that when the assessees received the notices in question, they appeared before the assessing authority, but they did not object to the validity of those notices. They asked for time for submitting their explanation. The time asked for was given. Therefore, the fact that only nine days were given to them for submitting explanation could not have in any manner prejudiced them. So far as the mistake in the notice as regards the assessment year is concerned, the assessees kept silent about that circumstance till 1958. It was only when they were sure that the period of limitation prescribed by Section 11A had expired, they brought, that fact to the notice of the assessing authority. It is clear that the appellants were merely trying to take advantage of the mistakes that had crept into the notices. They cannot be permitted to do so. We fail to see why those notices are not valid in respect of the periods commencing from February 1, 1953 till 31.10.55. We are unable to agree with Mr. Gokhales contention that each one of those notices should be read separately and that we should not consider them together. If those notices are read together as we think they should be, then it is clear that those notices given the appellants the reasonable opportunity contemplated by Sections 11(4) (a) and 11-A(1). In Chatturam vs. Commr. of Income Tax Bihar, (1947 (15) ITR 302) = (AIR 1947 FC 32), the Federal Court held that any irregularity in issuing a notice under S. 22 of the Income Tax Act, 1922 does not vitiate the proceeding: that the income tax assessment proceedings commence with the issue of the notice but the issue or receipt of the notice is, however, not the foundation of the jurisdiction of the income tax officer to make the assessment or of the liability of the assessee to pay the tax. The liability to pay the tax is founded on Sections 3 and 4 of the Income Tax Act which are the charging sections, Section 22 and others are the machinery sections to determine the amount of tax. The ratio of that decision applies to the facts of the present case. In our opinion, the notices issued in the year 1955 are valid notices so far as they relate to the period commencing from February 1, 1953 to October 31. 1955". 21. Whenever an order is struck down as invalid being violation of principles of natural justice, there is no final decision of the case and, therefore, proceedings are left open. All that is done is that the order assailed by virtue of its inherent defect is vacated but the proceedings are not terminated. (See Guduthur Bros vs. Income Tax Officer, Special Circle, Bangalore (1960 (40) ITR 298 SC) and Superintendent (Tech. I) Central Excise, I.D.D. Jabalpur and others vs. Pratap Rai (1978 (114) ITR 231 SC). In Commissioner of Sales Tax, U.P. vs. R.P. Dixit Saghidar (2001 (9) SCC 324 ), it was held as follows: "We are unable to subscribe to the view of the High Court. The aforementioned passage quoted from the Tribunals order shows that the Tribunal was of the view that once the order is quashed by the Assistant Commissioner, he could not in law remand the case for a decision afresh. As has been noted, before the Assistant Commissioner the counsel for the respondent had contended that the exparte order should have been set aside because no notice had been received. When principles of natural justice are stated to have been violated it is open to the appellate authority, in appropriate cases, to set aside the order and require the Assessing Officer to decide the cases de novo. This is precisely what was directed by the Assistant Commissioner and the Tribunal. In our opinion, was clearly in error in taking a contrary view." The view is clearly applicable to the facts of the present case. 22. The emerging principles are:- (i) Non-issue of notice or mistake in the issue of notice or defective service of notice does not affect the jurisdiction of the assessing officer, if otherwise reasonable opportunity of being heard has been given:(ii) Issue of notice as prescribed in the Rules constitutes a part of reasonable opportunity of being heard.(iii) If prejudice has been caused by non-issue or invalid services of notice the proceeding would be vitiated. But irregular service of notice would not render the proceedings invalid: more so, if assessee by his conduct has rendered service impracticable or impossible.(iv) In a given case when the principles of natural justice are stated to have been violated it is open to the appellate authority in appropriate cases to set aside the order and require the Assessing Official to decide the case de novo. 23. In the instant case, the learned Single Judge and the Division Bench have not considered the question of prejudice, grant of reasonable opportunity in the aforesaid perspective. 24. In view of what has been stated in R.P. Dixits case (supra), learned Single Judge was justified in directing de novo assessment by an order of remand. The direction was appropriate as the only ground on which the interference was made related to the violation of principles of natural justice by alleged improper service of notice. The Division Bench was not justified in upsetting the direction.
### Response:
1
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22. The emerging principlesNon-issue of notice or mistake in the issue of notice or defective service of notice does not affect the jurisdiction of the assessing officer, if otherwise reasonable opportunity of being heard has been given:(ii) Issue of notice as prescribed in the Rules constitutes a part of reasonable opportunity of being heard.(iii) If prejudice has been caused by non-issue or invalid services of notice the proceeding would be vitiated. But irregular service of notice would not render the proceedings invalid: more so, if assessee by his conduct has rendered service impracticable or impossible.(iv) In a given case when the principles of natural justice are stated to have been violated it is open to the appellate authority in appropriate cases to set aside the order and require the Assessing Official to decide the case de novo.In the instant case, the learned Single Judge and the Division Bench have not considered the question of prejudice, grant of reasonable opportunity in the aforesaidJudge was justified in directing de novo assessment by an order of remand. The direction was appropriate as the only ground on which the interference was made related to the violation of principles of natural justice by alleged improper service of notice. The Division Bench was not justified in upsetting the direction.
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Panna Lal Vs. Shri Chand Mal and Others | Fazal Ali, J.1. This is a plaintiffs appeal by special leave and is directed against the judgment of the High Court which upheld the judgment of the courts below dismissing the plaintiffs suit for recovery of Rs. 6, 800. The facts of the case lie within a very narrow compass and have been detailed in the judgment of the courts below. It appears that Manak Chand was the owner of a lorry No. AJM 455 and had also the route permit in his name. On February 17, 1956, Manak Chand sold the route permit and the lorry to Lalchand and Tarachand for a sum of Rs. 4, 251. Subsequently, the purchasers Lalchand and Tarachand, original defendants, sold the lorry to the plaintiff Panna Lal on December 24, 1956. The finding of facts recorded by the courts below are that after the sale both by Manak Chand to Lalchand and Tarachand and by Lalchand and Tarachand to the plaintiff, the lorry as also the registration papers thereof were delivered to the appellant-purchaser, and this title passed to him. As, however the plaintiff did not choose to move the registering authority for transfer of registration of the lorry in his name, the name of the original owner Manak Chand continued to remain in the papers of the registering authority under the Motor Vehicles Act. The plaintiff issued notices both to Manak Chand and to Lalchand and Tarachand for taking steps for transferring the registration in his name in view of the purchase of the lorry by him. Despite these notices, no action was taken. Hence the plaintiff filed a suit for recovery of the amount of Rs. 5000 which was paid by the plaintiff for the purchase of lorry from Lalchand and Tarachand defendants and claimed Rs. 1, 800 as interest on that amount by way of damages.2. The short point raised by Mr. Andley, counsel appearing for the appellant was that as neither Manak Chand nor Lalchand and Tarachand took any steps to transfer the registration in the name of the plaintiff before the registering authority, the sale was ineffective and it really amounted to an agreement to sell. We are however unable to agree with this submission because in the Motor Vehicles Act, 1939 as it stood in 1956, there was no provision which prohibited a sale of a vehicle. Section 31 of the Act runes thus :"31. Transfer of ownership. - (1) Within thirty days of the transfer of ownership of any motor vehicle registered under this chapter, the transferee shall report the transfer to the registering authority within whose jurisdiction he resides and shall forward the certificate of registration to that registering authority together with the prescribed fee in order that particulars of the transfer of ownership may be entered therein.(2) A registering authority other than the original registering authority making any such entry shall communicate the transfer of ownership to the original registering authority."3. Under the provisions of this section, the transfer of ownership is permitted but the statute casts an obligation on the transferee to report to the registering authority concerned regarding the transfer of the vehicle along with a certificate of registration and then get the registration transferred in his name. It was therefore the duty of the plaintiff to have applied to the registering authority under Section 31 of the Motor Vehicles Act and got the registration transferred in his name. It has been found by the courts below that all the registration papers as also the memo of sale were handed over to the plaintiff. In these circumstances therefore if the plaintiff did not choose to move the registering authority, he cannot be heard to say that he is entitled for refund of the purchase money or claim damages. The decisions of the courts below are therefore correct and do not warrant any interference by his Court. | 0[ds]3. Under the provisions of this section, the transfer of ownership is permitted but the statute casts an obligation on the transferee to report to the registering authority concerned regarding the transfer of the vehicle along with a certificate of registration and then get the registration transferred in his name. It was therefore the duty of the plaintiff to have applied to the registering authority under Section 31 of the Motor Vehicles Act and got the registration transferred in his name. It has been found by the courts below that all the registration papers as also the memo of sale were handed over to the plaintiff. In these circumstances therefore if the plaintiff did not choose to move the registering authority, he cannot be heard to say that he is entitled for refund of the purchase money or claim damages. The decisions of the courts below are therefore correct and do not warrant any interference by his Court. | 0 | 703 | 171 | ### 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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Fazal Ali, J.1. This is a plaintiffs appeal by special leave and is directed against the judgment of the High Court which upheld the judgment of the courts below dismissing the plaintiffs suit for recovery of Rs. 6, 800. The facts of the case lie within a very narrow compass and have been detailed in the judgment of the courts below. It appears that Manak Chand was the owner of a lorry No. AJM 455 and had also the route permit in his name. On February 17, 1956, Manak Chand sold the route permit and the lorry to Lalchand and Tarachand for a sum of Rs. 4, 251. Subsequently, the purchasers Lalchand and Tarachand, original defendants, sold the lorry to the plaintiff Panna Lal on December 24, 1956. The finding of facts recorded by the courts below are that after the sale both by Manak Chand to Lalchand and Tarachand and by Lalchand and Tarachand to the plaintiff, the lorry as also the registration papers thereof were delivered to the appellant-purchaser, and this title passed to him. As, however the plaintiff did not choose to move the registering authority for transfer of registration of the lorry in his name, the name of the original owner Manak Chand continued to remain in the papers of the registering authority under the Motor Vehicles Act. The plaintiff issued notices both to Manak Chand and to Lalchand and Tarachand for taking steps for transferring the registration in his name in view of the purchase of the lorry by him. Despite these notices, no action was taken. Hence the plaintiff filed a suit for recovery of the amount of Rs. 5000 which was paid by the plaintiff for the purchase of lorry from Lalchand and Tarachand defendants and claimed Rs. 1, 800 as interest on that amount by way of damages.2. The short point raised by Mr. Andley, counsel appearing for the appellant was that as neither Manak Chand nor Lalchand and Tarachand took any steps to transfer the registration in the name of the plaintiff before the registering authority, the sale was ineffective and it really amounted to an agreement to sell. We are however unable to agree with this submission because in the Motor Vehicles Act, 1939 as it stood in 1956, there was no provision which prohibited a sale of a vehicle. Section 31 of the Act runes thus :"31. Transfer of ownership. - (1) Within thirty days of the transfer of ownership of any motor vehicle registered under this chapter, the transferee shall report the transfer to the registering authority within whose jurisdiction he resides and shall forward the certificate of registration to that registering authority together with the prescribed fee in order that particulars of the transfer of ownership may be entered therein.(2) A registering authority other than the original registering authority making any such entry shall communicate the transfer of ownership to the original registering authority."3. Under the provisions of this section, the transfer of ownership is permitted but the statute casts an obligation on the transferee to report to the registering authority concerned regarding the transfer of the vehicle along with a certificate of registration and then get the registration transferred in his name. It was therefore the duty of the plaintiff to have applied to the registering authority under Section 31 of the Motor Vehicles Act and got the registration transferred in his name. It has been found by the courts below that all the registration papers as also the memo of sale were handed over to the plaintiff. In these circumstances therefore if the plaintiff did not choose to move the registering authority, he cannot be heard to say that he is entitled for refund of the purchase money or claim damages. The decisions of the courts below are therefore correct and do not warrant any interference by his Court.
### Response:
0
### Explanation:
3. Under the provisions of this section, the transfer of ownership is permitted but the statute casts an obligation on the transferee to report to the registering authority concerned regarding the transfer of the vehicle along with a certificate of registration and then get the registration transferred in his name. It was therefore the duty of the plaintiff to have applied to the registering authority under Section 31 of the Motor Vehicles Act and got the registration transferred in his name. It has been found by the courts below that all the registration papers as also the memo of sale were handed over to the plaintiff. In these circumstances therefore if the plaintiff did not choose to move the registering authority, he cannot be heard to say that he is entitled for refund of the purchase money or claim damages. The decisions of the courts below are therefore correct and do not warrant any interference by his Court.
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Commissioner of Taxes, Assam, and Another Vs. Babubhai S. Patel and Another | called the Act, was quashed.2. The facts may be stated : Respondent No. 1 carried on business under the name and style of M/s. Indian Tea Co. in Dibrugarh. He was registered as a dealer in January, 1956. He continued his business up to June 17, 1961, and at his request the registration certificate was cancelled with effect from June 18, 1961. Respondent No. 1 was assessed to sales tax for various periods between 1956 and 1961. Owing to a decision of the Assam High Court in which it was held that rule 80 of the Assam Sales Tax Rules, 1947, as amended was ultra vires, assessment was made on the basis that the price of goods purchased by respondent No. 1 for the purpose of resale in the State by giving a declaration under rule 80 but subsequently sent outside the State of Assam was not to be included in the net turnover under section 15(1)(b)(i)(a) of the Act. The judgment of the High Court was reversed by this court and the aforesaid rule was held to be intra vires. The appellant took steps to revise the assessments after the decision of this court. A notice was issued on March 11, 1963, to respondent No. 1 under section 31(1) of the Act amended in 1962 wherein he was asked to appear before the Commissioner for showing cause as to why the assessment orders for the periods in question made by the Superintendent of Taxes, Dibrugarh, should not be revised and the price of goods purchased by him free of tax for the purpose of resale in the State by giving a declaration under rule 80 but subsequently sent outside the State should not be included in his net turnover. Thereupon respondent No. 1 filed a petition under articles 226 and 227 of the Constitution in the High Court asking for the quashing of the notice and any subsequent proceedings taken pursuant thereto. The High Court allowed the petition on the ground that the provisions of section 31(1) as amended were not retrospective and the Commissioner could not exercise the powers under the said provisions so as to affect the final orders of assessment.During the pendency of the appeal before this court the Assam Legislature has, by section 8 of the Assam Sales Tax (Amendment) Act (13 of 1966) given section 31(1) of the Act as it stood on April 12, 1966, retrospective effect from December 24, 1947. In view of this amendment the sole ground on which the High Court had allowed the petition under article 226 no longer exists and counsel for respondent No. 1 has not been able to show how that judgment can be sustained owing to a clear declaration by the Legislature that section 31(1) should be deemed and always to have been deemed to have formed part of the principal Act as it the principal Act had been enacted as was amended with effect from December 24, 1947.3. Counsel for respondent No. 1 has invited our attention to the observations in the judgment under appeal that the present case was covered by section 19A and proper action should have been taken under that section. Section 19A deals with turnover escaping assessment. It provides that if upon information which has come into his possession the Commissioner is satisfied that any turnover in respect of sales of any goods chargeable to tax under the Act has escaped assessment or has been under-assessed or assessed at a lower rate or any deduction has been wrongly made therefrom he may at any time, within three years of the end of the aforesaid period, serve on the dealer liable to pay the tax a notice and then proceed to assess or reassess the dealer. According to the learned counsel for respondent No. 1 the Commissioner could take action only under section 19A in the circumstances of the present case but the notice under it would be barred by limitation in respect of several periods for which assessment is sought to be revised. The notice has, however, been issued under section 31(1) of the Act and the judgment of the High Court proceeded on the basis that that provision could not be given retrospective operation. Owing to the change in law, as pointed out above, that situation no longer obtains and the Commissioner could issue a valid notice under section 31(1) if the matter fell within the provision of that section. In our opinion it is still open to respondent No. 1 to satisfy the authority concerned that his case does not fall within the ambit of section 31(1) and is covered by section 19A under which no notice has been issued or could be issued owing to the bar of time.It has next been pointed out on behalf of respondent No. 1 that under the notice which has been issued under section 31(1) he has been required to produce all relevant accounts, documents and other papers in respect of his accounts etc. and to answer all material questions as to why the assessments for the periods in question should not be revised. Under rule 62 of the Rules accounts referred to in sub-section (2) of section 43 have to be preserved for a period of three years only. It is urged on behalf of respondent No. 1 that he could not be required to produce accounts for a period beyond three years. These again are matters which cannot be decided at this stage and it is for respondent No. 1 to show these and other relevant provisions to the authority by which the impugned notice has been issued and to satisfy it that production of accounts as called for will not be in conformity with the statutory provisions. At any rate it appears to us that the matter has to be decided under section 31(1) on the evidence and the accounts which are already on the record and no further or additional evidence can be called for and adduced.4. | 1[ds]In our opinion it is still open to respondent No. 1 to satisfy the authority concerned that his case does not fall within the ambit of section 31(1) and is covered by section 19A under which no notice has been issued or could be issued owing to the bar ofagain are matters which cannot be decided at this stage and it is for respondent No. 1 to show these and other relevant provisions to the authority by which the impugned notice has been issued and to satisfy it that production of accounts as called for will not be in conformity with the statutory provisions. At any rate it appears to us that the matter has to be decided under section 31(1) on the evidence and the accounts which are already on the record and no further or additional evidence can be called for and adduced. | 1 | 1,179 | 160 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
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called the Act, was quashed.2. The facts may be stated : Respondent No. 1 carried on business under the name and style of M/s. Indian Tea Co. in Dibrugarh. He was registered as a dealer in January, 1956. He continued his business up to June 17, 1961, and at his request the registration certificate was cancelled with effect from June 18, 1961. Respondent No. 1 was assessed to sales tax for various periods between 1956 and 1961. Owing to a decision of the Assam High Court in which it was held that rule 80 of the Assam Sales Tax Rules, 1947, as amended was ultra vires, assessment was made on the basis that the price of goods purchased by respondent No. 1 for the purpose of resale in the State by giving a declaration under rule 80 but subsequently sent outside the State of Assam was not to be included in the net turnover under section 15(1)(b)(i)(a) of the Act. The judgment of the High Court was reversed by this court and the aforesaid rule was held to be intra vires. The appellant took steps to revise the assessments after the decision of this court. A notice was issued on March 11, 1963, to respondent No. 1 under section 31(1) of the Act amended in 1962 wherein he was asked to appear before the Commissioner for showing cause as to why the assessment orders for the periods in question made by the Superintendent of Taxes, Dibrugarh, should not be revised and the price of goods purchased by him free of tax for the purpose of resale in the State by giving a declaration under rule 80 but subsequently sent outside the State should not be included in his net turnover. Thereupon respondent No. 1 filed a petition under articles 226 and 227 of the Constitution in the High Court asking for the quashing of the notice and any subsequent proceedings taken pursuant thereto. The High Court allowed the petition on the ground that the provisions of section 31(1) as amended were not retrospective and the Commissioner could not exercise the powers under the said provisions so as to affect the final orders of assessment.During the pendency of the appeal before this court the Assam Legislature has, by section 8 of the Assam Sales Tax (Amendment) Act (13 of 1966) given section 31(1) of the Act as it stood on April 12, 1966, retrospective effect from December 24, 1947. In view of this amendment the sole ground on which the High Court had allowed the petition under article 226 no longer exists and counsel for respondent No. 1 has not been able to show how that judgment can be sustained owing to a clear declaration by the Legislature that section 31(1) should be deemed and always to have been deemed to have formed part of the principal Act as it the principal Act had been enacted as was amended with effect from December 24, 1947.3. Counsel for respondent No. 1 has invited our attention to the observations in the judgment under appeal that the present case was covered by section 19A and proper action should have been taken under that section. Section 19A deals with turnover escaping assessment. It provides that if upon information which has come into his possession the Commissioner is satisfied that any turnover in respect of sales of any goods chargeable to tax under the Act has escaped assessment or has been under-assessed or assessed at a lower rate or any deduction has been wrongly made therefrom he may at any time, within three years of the end of the aforesaid period, serve on the dealer liable to pay the tax a notice and then proceed to assess or reassess the dealer. According to the learned counsel for respondent No. 1 the Commissioner could take action only under section 19A in the circumstances of the present case but the notice under it would be barred by limitation in respect of several periods for which assessment is sought to be revised. The notice has, however, been issued under section 31(1) of the Act and the judgment of the High Court proceeded on the basis that that provision could not be given retrospective operation. Owing to the change in law, as pointed out above, that situation no longer obtains and the Commissioner could issue a valid notice under section 31(1) if the matter fell within the provision of that section. In our opinion it is still open to respondent No. 1 to satisfy the authority concerned that his case does not fall within the ambit of section 31(1) and is covered by section 19A under which no notice has been issued or could be issued owing to the bar of time.It has next been pointed out on behalf of respondent No. 1 that under the notice which has been issued under section 31(1) he has been required to produce all relevant accounts, documents and other papers in respect of his accounts etc. and to answer all material questions as to why the assessments for the periods in question should not be revised. Under rule 62 of the Rules accounts referred to in sub-section (2) of section 43 have to be preserved for a period of three years only. It is urged on behalf of respondent No. 1 that he could not be required to produce accounts for a period beyond three years. These again are matters which cannot be decided at this stage and it is for respondent No. 1 to show these and other relevant provisions to the authority by which the impugned notice has been issued and to satisfy it that production of accounts as called for will not be in conformity with the statutory provisions. At any rate it appears to us that the matter has to be decided under section 31(1) on the evidence and the accounts which are already on the record and no further or additional evidence can be called for and adduced.4.
### Response:
1
### Explanation:
In our opinion it is still open to respondent No. 1 to satisfy the authority concerned that his case does not fall within the ambit of section 31(1) and is covered by section 19A under which no notice has been issued or could be issued owing to the bar ofagain are matters which cannot be decided at this stage and it is for respondent No. 1 to show these and other relevant provisions to the authority by which the impugned notice has been issued and to satisfy it that production of accounts as called for will not be in conformity with the statutory provisions. At any rate it appears to us that the matter has to be decided under section 31(1) on the evidence and the accounts which are already on the record and no further or additional evidence can be called for and adduced.
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STATE OF RAJASTHAN Vs. CAPTAIN GURVINDER SINGH | 1. By a judgment impugned in Civil Appeal No. 1464-1466 of 2017, the High Court of Rajasthan struck down the Rajasthan Special Backward Classes (Reservation of Seats in Educational Institutions in the State and of Appointment and Posts in Services under the State) Act, 2015 (hereafter, `THE ACT). Aggrieved by the same, the State of Rajasthan preferred the above-mentioned appeals. 2. By THE ACT, the State of Rajasthan provided a reservation of 5 per cent in educational institutions and government services in favour of special backward classes. As a consequence, 54% of the available opportunities became reserved for various segments of the society. Hence the litigation. 3. On 3.2.2017, this Court ordered:- Leave granted. An enactment of the State of Rajasthan providing for reservations in favour of certain backward classes has been struck down by the High Court by the Judgment under appeal. We are informed by learned Attorney General that pursuant to the impugned enactment, the benefits of the reservation in the matter of admission to educational institutions and employment under the State are already given by making certain appointments. We deem it appropriate to direct the appellant(s) to maintain status quo obtaining as on today. The admissions so made to the educational institutions and appointments so made by the State shall not be disturbed pending final hearing of the matter. We also make it clear that no fresh admissions and appointment shall be made pursuant to this interim order. 4. The applicants in these applications claim that they are identically situated as those candidates falling under the category of special backward classes who have been appointed prior to the judgment of the High Court. In view of the interim order dated 3.2.2017, candidates, who had been appointed, are continuing in service. Their continuance is made subject to the final orders in the appeals. There is no justification for not appointing these applicants who also belong to the same class and who have been declared successful in the selection process for appointment of various posts. 5. On an earlier occasion, when these applications were heard, it was argued on behalf of the candidates belonging to non-reserved segment of the society that permitting appointment of people such as the present applicants would result in deprivation of appointment to the candidates belonging to classes other than the reserved categories. Therefore, submitted the applications be dismissed. 6. At that stage, the learned Attorney General submitted that the State would consider the possibility of appointing these applicants and people who are similarly situated without depriving the general category candidates of their right of appointment, if necessary by creating supernumerary posts and also subject to the condition that such appointments of the candidates belonging to the special backward classes would be purely subject to the result of these appeals. 7. When the matter is taken up today, an affidavit of Shri Shiv Ram Singh Sihag, Joint, Legal Remembrance, Department of Personnel, Government of Rajasthan, Jaipur dated 8.5.2017 alongwith an annexure R2 is placed before us. It appears therefrom that in all, there are 1252 candidates who are declared successful in the examination conducted for various posts indicated in the Annexure who would be entitled for the benefit of above-mentioned Act, if it were to be eventually upheld. 8. The learned Additional Solicitor General Shri Mehta appearing for the State of Rajasthan submitted that the State has taken a decision to create supernumerary post to accommodate the applicants and other similarly situated persons belonging to the special backward classes, if this Court permits the same. | 0[ds]7. When the matter is taken up today, an affidavit of Shri Shiv Ram Singh Sihag, Joint, Legal Remembrance, Department of Personnel, Government of Rajasthan, Jaipur dated 8.5.2017 alongwith an annexure R2 is placed before us. It appears therefrom that in all, there are 1252 candidates who are declared successful in the examination conducted for various posts indicated in the Annexure who would be entitled for the benefit of above-mentioned Act, if it were to be eventually upheld. | 0 | 656 | 93 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
1. By a judgment impugned in Civil Appeal No. 1464-1466 of 2017, the High Court of Rajasthan struck down the Rajasthan Special Backward Classes (Reservation of Seats in Educational Institutions in the State and of Appointment and Posts in Services under the State) Act, 2015 (hereafter, `THE ACT). Aggrieved by the same, the State of Rajasthan preferred the above-mentioned appeals. 2. By THE ACT, the State of Rajasthan provided a reservation of 5 per cent in educational institutions and government services in favour of special backward classes. As a consequence, 54% of the available opportunities became reserved for various segments of the society. Hence the litigation. 3. On 3.2.2017, this Court ordered:- Leave granted. An enactment of the State of Rajasthan providing for reservations in favour of certain backward classes has been struck down by the High Court by the Judgment under appeal. We are informed by learned Attorney General that pursuant to the impugned enactment, the benefits of the reservation in the matter of admission to educational institutions and employment under the State are already given by making certain appointments. We deem it appropriate to direct the appellant(s) to maintain status quo obtaining as on today. The admissions so made to the educational institutions and appointments so made by the State shall not be disturbed pending final hearing of the matter. We also make it clear that no fresh admissions and appointment shall be made pursuant to this interim order. 4. The applicants in these applications claim that they are identically situated as those candidates falling under the category of special backward classes who have been appointed prior to the judgment of the High Court. In view of the interim order dated 3.2.2017, candidates, who had been appointed, are continuing in service. Their continuance is made subject to the final orders in the appeals. There is no justification for not appointing these applicants who also belong to the same class and who have been declared successful in the selection process for appointment of various posts. 5. On an earlier occasion, when these applications were heard, it was argued on behalf of the candidates belonging to non-reserved segment of the society that permitting appointment of people such as the present applicants would result in deprivation of appointment to the candidates belonging to classes other than the reserved categories. Therefore, submitted the applications be dismissed. 6. At that stage, the learned Attorney General submitted that the State would consider the possibility of appointing these applicants and people who are similarly situated without depriving the general category candidates of their right of appointment, if necessary by creating supernumerary posts and also subject to the condition that such appointments of the candidates belonging to the special backward classes would be purely subject to the result of these appeals. 7. When the matter is taken up today, an affidavit of Shri Shiv Ram Singh Sihag, Joint, Legal Remembrance, Department of Personnel, Government of Rajasthan, Jaipur dated 8.5.2017 alongwith an annexure R2 is placed before us. It appears therefrom that in all, there are 1252 candidates who are declared successful in the examination conducted for various posts indicated in the Annexure who would be entitled for the benefit of above-mentioned Act, if it were to be eventually upheld. 8. The learned Additional Solicitor General Shri Mehta appearing for the State of Rajasthan submitted that the State has taken a decision to create supernumerary post to accommodate the applicants and other similarly situated persons belonging to the special backward classes, if this Court permits the same.
### Response:
0
### Explanation:
7. When the matter is taken up today, an affidavit of Shri Shiv Ram Singh Sihag, Joint, Legal Remembrance, Department of Personnel, Government of Rajasthan, Jaipur dated 8.5.2017 alongwith an annexure R2 is placed before us. It appears therefrom that in all, there are 1252 candidates who are declared successful in the examination conducted for various posts indicated in the Annexure who would be entitled for the benefit of above-mentioned Act, if it were to be eventually upheld.
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Mukul Rani Varshnei & Others Vs. Delhi Development Authority of India & Another | Dr. A.S. Anand, J. 1. The appellants let out the property in question to M/S Tufted Carpets and Woolen Industries Limited (subsequently the name of the tenants was changed to M/S Trans Asia Carpets Ltd.) in July, 1978. The tenants applied for permission to respondent No.1, for using the said property for commercial purposes, known as non-conforming purpose. Permission was granted and extended from time to time by respondent No.1 till September 1981, though the tenants kept representing to the authorities for extension of time to stop the use of the premises for commercial purposes. In January, 1983 the appellants received a show cause notice dated 3rd December, 1982 from respondent No.1 asking them to show cause as to why they should not be prosecuted for violating Section 14 of the Delhi Development Act, 1957 (hereinafter referred to as the Act) on the ground that the appellants had permitted the tenant-company to use the said property in contravention of the provisions of the Master Plan and the Zonal Development Plan of Delhi. The appellants replied to the show cause notice stating that they had no information that the tenant was using the property in contravention of the plan without permission of respondent No.1 and asserted that they had not given any permission to the tenants to use the property for non-conforming purposes. The appellants were, thereafter, asked by respondent No.1 that the tenants should be stopped from misusing the property within 15 days from the date of the communication, failing which prosecution under Section 29(2) of the Act would be launched against the appellants. This communication from respondent No.1 is dated 24th March, 1983. The appellants once again through their letter dated 12th April 1993, controvered the allegations contained in the communication and reiterated what they had stated in the reply to the show cause notice. They also, on the same date, through their counsel sent a notice to the tenant calling upon it to immediately stop the commercial use of the property. While the matter rested thus, prosecution was launched against the appellants for violation of Section 14 of the Act punishable under Section 29(2) of the Act. The learned trial Magistrate convicted the appellants vide judgment dated 1st April 1985 and imposed a fine of Rs.1500/- on each of the four appellants. The appellants preferred an appeal against their conviction and sentence before the Additional Sessions Judge, New Delhi but without any success and their appeals were dismissed on 17th July 1989. The revision petitions filed by the appellants before the High Court were dismissed in limine. By special leave granted by this Court, the appellants are before us. 2. We have heard learned counsel for the parties and perused the record. Section 14 of the Act provides : "14. User of land and buildings in contravention of plans - After the coming into operation of any of the plans in a zone no person shall use or permit to be used any land or building in that zone otherwise than in conformity with such plant :Provided that it shall be lawful to continue to use upon such terms and conditions as may be prescribed by regulations made in this behalf any land or building for the purpose and to the extent for and to which it is being used upon the date on which such plan comes into force." 3. From a bare reading of the Section, it is obvious that a person can be said to violate the Plan, if he uses or permits to be used the property otherwise than in conformity with the Master/Zonal Plan. The allegations against the appellants is that they had permitted the tenant to use the property for commercial purposes in violation of the Master Plan.4. There is no legal evidence led by the prosecution to show that the appellants had permitted the property to be used by the tenant in violation of the Master Plan for non- conforming purposes. The only witness who appeared on behalf of the respondent before the trial court in support of their case, Shri Shamimudeen, Junior Engineer, DDA, PW2, deposed that the tenant had told him that he had been permitted by the appellants to use the property for commercial purposes. This is hear-say evidence and clearly not admissible. The tenant was not examined as a witness in the case. PW2 expressed total ignorance as to whether the tenant was actually using the property as commercial property with the permission of the landlord or not. No other oral or documentary evidence was led in support of the allegation against the appellant. Thus, in the absence of any legal evidence to show that permission had been granted by the appellants to the tenant to use the property in contravention of the Master Plan, no conviction of the appellants could have been recorded by the trial court.5. The courts below thus fell in error in convicting the appellants without any legal evidence on the record. | 1[ds]3. From a bare reading of the Section, it is obvious that a person can be said to violate the Plan, if he uses or permits to be used the property otherwise than in conformity with the Master/Zonal Plan. The allegations against the appellants is that they had permitted the tenant to use the property for commercial purposes in violation of the Master Plan.4. There is no legal evidence led by the prosecution to show that the appellants had permitted the property to be used by the tenant in violation of the Master Plan for non- conforming purposes. The only witness who appeared on behalf of the respondent before the trial court in support of their case, Shri Shamimudeen, Junior Engineer, DDA, PW2, deposed that the tenant had told him that he had been permitted by the appellants to use the property for commercial purposes. This is hear-say evidence and clearly not admissible. The tenant was not examined as a witness in the case. PW2 expressed total ignorance as to whether the tenant was actually using the property as commercial property with the permission of the landlord or not. No other oral or documentary evidence was led in support of the allegation against the appellant. Thus, in the absence of any legal evidence to show that permission had been granted by the appellants to the tenant to use the property in contravention of the Master Plan, no conviction of the appellants could have been recorded by the trial court.5. The courts below thus fell in error in convicting the appellants without any legal evidence on the record. | 1 | 900 | 291 | ### 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:
Dr. A.S. Anand, J. 1. The appellants let out the property in question to M/S Tufted Carpets and Woolen Industries Limited (subsequently the name of the tenants was changed to M/S Trans Asia Carpets Ltd.) in July, 1978. The tenants applied for permission to respondent No.1, for using the said property for commercial purposes, known as non-conforming purpose. Permission was granted and extended from time to time by respondent No.1 till September 1981, though the tenants kept representing to the authorities for extension of time to stop the use of the premises for commercial purposes. In January, 1983 the appellants received a show cause notice dated 3rd December, 1982 from respondent No.1 asking them to show cause as to why they should not be prosecuted for violating Section 14 of the Delhi Development Act, 1957 (hereinafter referred to as the Act) on the ground that the appellants had permitted the tenant-company to use the said property in contravention of the provisions of the Master Plan and the Zonal Development Plan of Delhi. The appellants replied to the show cause notice stating that they had no information that the tenant was using the property in contravention of the plan without permission of respondent No.1 and asserted that they had not given any permission to the tenants to use the property for non-conforming purposes. The appellants were, thereafter, asked by respondent No.1 that the tenants should be stopped from misusing the property within 15 days from the date of the communication, failing which prosecution under Section 29(2) of the Act would be launched against the appellants. This communication from respondent No.1 is dated 24th March, 1983. The appellants once again through their letter dated 12th April 1993, controvered the allegations contained in the communication and reiterated what they had stated in the reply to the show cause notice. They also, on the same date, through their counsel sent a notice to the tenant calling upon it to immediately stop the commercial use of the property. While the matter rested thus, prosecution was launched against the appellants for violation of Section 14 of the Act punishable under Section 29(2) of the Act. The learned trial Magistrate convicted the appellants vide judgment dated 1st April 1985 and imposed a fine of Rs.1500/- on each of the four appellants. The appellants preferred an appeal against their conviction and sentence before the Additional Sessions Judge, New Delhi but without any success and their appeals were dismissed on 17th July 1989. The revision petitions filed by the appellants before the High Court were dismissed in limine. By special leave granted by this Court, the appellants are before us. 2. We have heard learned counsel for the parties and perused the record. Section 14 of the Act provides : "14. User of land and buildings in contravention of plans - After the coming into operation of any of the plans in a zone no person shall use or permit to be used any land or building in that zone otherwise than in conformity with such plant :Provided that it shall be lawful to continue to use upon such terms and conditions as may be prescribed by regulations made in this behalf any land or building for the purpose and to the extent for and to which it is being used upon the date on which such plan comes into force." 3. From a bare reading of the Section, it is obvious that a person can be said to violate the Plan, if he uses or permits to be used the property otherwise than in conformity with the Master/Zonal Plan. The allegations against the appellants is that they had permitted the tenant to use the property for commercial purposes in violation of the Master Plan.4. There is no legal evidence led by the prosecution to show that the appellants had permitted the property to be used by the tenant in violation of the Master Plan for non- conforming purposes. The only witness who appeared on behalf of the respondent before the trial court in support of their case, Shri Shamimudeen, Junior Engineer, DDA, PW2, deposed that the tenant had told him that he had been permitted by the appellants to use the property for commercial purposes. This is hear-say evidence and clearly not admissible. The tenant was not examined as a witness in the case. PW2 expressed total ignorance as to whether the tenant was actually using the property as commercial property with the permission of the landlord or not. No other oral or documentary evidence was led in support of the allegation against the appellant. Thus, in the absence of any legal evidence to show that permission had been granted by the appellants to the tenant to use the property in contravention of the Master Plan, no conviction of the appellants could have been recorded by the trial court.5. The courts below thus fell in error in convicting the appellants without any legal evidence on the record.
### Response:
1
### Explanation:
3. From a bare reading of the Section, it is obvious that a person can be said to violate the Plan, if he uses or permits to be used the property otherwise than in conformity with the Master/Zonal Plan. The allegations against the appellants is that they had permitted the tenant to use the property for commercial purposes in violation of the Master Plan.4. There is no legal evidence led by the prosecution to show that the appellants had permitted the property to be used by the tenant in violation of the Master Plan for non- conforming purposes. The only witness who appeared on behalf of the respondent before the trial court in support of their case, Shri Shamimudeen, Junior Engineer, DDA, PW2, deposed that the tenant had told him that he had been permitted by the appellants to use the property for commercial purposes. This is hear-say evidence and clearly not admissible. The tenant was not examined as a witness in the case. PW2 expressed total ignorance as to whether the tenant was actually using the property as commercial property with the permission of the landlord or not. No other oral or documentary evidence was led in support of the allegation against the appellant. Thus, in the absence of any legal evidence to show that permission had been granted by the appellants to the tenant to use the property in contravention of the Master Plan, no conviction of the appellants could have been recorded by the trial court.5. The courts below thus fell in error in convicting the appellants without any legal evidence on the record.
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COMMISSIONER OF CENTRAL EXCISE, CHANDIGARH Vs. M/S KHURANA OLEO CHEMICAL | 1. We have heard the learned counsels for the parties and perused the relevant material.2. To determine the entitlement of the respondent-M/s. Khurana Oleo Chemical under the area based exemption scheme, which has been held against the respondent by the primary and appellate authority, the learned Tribunal was, inter alia, required to record its finding on the contention advanced on behalf of the appellantRevenue that M/s. Stanley Controls at the relevant point of time i.e. when the respondent had taken over was a non-functional unit and has stopped its manufacturing process. It is on the aforesaid basis that the two authorities had taken the view that the respondent had taken over M/s. Stanley Controls only for the purpose of getting relief/exemption under the notification in question.3. The learned Tribunal has not dealt with the said aspect of the matter despite the categorical findings recorded by the adjudicating authorities i.e. primary and appellate authority. We are, therefore, of the view that the matter should be remanded to the learned Tribunal for a reconsideration of the said question. | 1[ds]3. The learned Tribunal has not dealt with the said aspect of the matter despite the categorical findings recorded by the adjudicating authorities i.e. primary and appellate authority. We are, therefore, of the view that the matter should be remanded to the learned Tribunal for a reconsideration of the said question. | 1 | 193 | 61 | ### 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:
1. We have heard the learned counsels for the parties and perused the relevant material.2. To determine the entitlement of the respondent-M/s. Khurana Oleo Chemical under the area based exemption scheme, which has been held against the respondent by the primary and appellate authority, the learned Tribunal was, inter alia, required to record its finding on the contention advanced on behalf of the appellantRevenue that M/s. Stanley Controls at the relevant point of time i.e. when the respondent had taken over was a non-functional unit and has stopped its manufacturing process. It is on the aforesaid basis that the two authorities had taken the view that the respondent had taken over M/s. Stanley Controls only for the purpose of getting relief/exemption under the notification in question.3. The learned Tribunal has not dealt with the said aspect of the matter despite the categorical findings recorded by the adjudicating authorities i.e. primary and appellate authority. We are, therefore, of the view that the matter should be remanded to the learned Tribunal for a reconsideration of the said question.
### Response:
1
### Explanation:
3. The learned Tribunal has not dealt with the said aspect of the matter despite the categorical findings recorded by the adjudicating authorities i.e. primary and appellate authority. We are, therefore, of the view that the matter should be remanded to the learned Tribunal for a reconsideration of the said question.
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Manjusree Chakraborty & Other Vs. M/s. M. Ahmed Bhuyan & Co. & Another | Calendar, at the end of the month. In our considered view, it makes little difference, whether the rent became due at the end of the Bengali calender month, or the English calender month because from August 1999 to August 2000, rent became due at the end of each one of the 12 intervening months. And as per the demand notice, last of all when the demand notice was served (on 17.8.2000). In view of the clear depiction in Section 5(1)(e), wherein, from the date due, arrears of rent are to be tendered within a fortnight. That alone, will save a tenant from eviction on the ground of non-payment of past rent.9. The question to be determined is, whether the respondent-tenant, factually tendered arrears of rent, from the date due. Having accepted the date of receipt of the demand notice, namely, 17.08.2000, as the date when the rent became due and payable, the same had to be tendered within a fortnight thereof. It is the case of the respondent-tenant, that the same was factually and actually tendered within a fortnight, contemplated under Section 5(1)(e), but the personal tender made by the respondent-tenant, was not accepted by the landlord. It is in the aforesaid circumstances, that the arrears of rent came to be deposited before the trial court on 1.9.2000.10. The situation where rent tendered by the tenant is not accepted by the landlord, is governed by Section 5(4) of the 1972 Act. By virtue of the liberty available to a tenant under Section 5(4) of the 1972 Act, the period of deposit of arrears of rent, with the concerned Court is also a fortnight from the date when the rent had became due. Since we have already concluded herein above, that the rent had became due and payable on 17.8.2000, we are of the view, that the period of a fortnight to make a deposit of arrears of rent in a Court, would expire on 31.8.2000. The deposit made by the respondent-tenant on 1.9.2000 was, therefore, clearly beyond the period contemplated under Section 5(4) of the 1972 Act. It is therefore apparent, that the claim raised by the appellant-landlord for non-payment of arrears of rent was liable to be accepted, as the arrears were not deposited within the postulated time.11. Despite our aforesaid conclusion, learned counsel for the respondent-tenant placed reliance on Section 5 of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955 (hereinafter referred to as the "1955 Act"), to contend, that the respondent-tenant was a protected tenant, and was not liable to be evicted under the provisions of 1972 Act. Section 5 relied upon by the learned counsel is extracted hereunder :"Section 5 - Protection from eviction(1) Notwithstanding anything in any contract or in any law for the time being in force -(a) where under the terms of a contract entered into between a landlord and his tenant whether before or after the commencement of this Act, a tenant is entitled to build, and has in pursuance of such terms actually built within the period of five years from the date of such contract, a permanent structure on the land of the tenancy for residential or business purposes, or where a tenant not being so entitled to build, has actually build any such structure on the land of the tenancy for any of the purposes aforesaid with the knowledge and acquiescence of the landlord, the tenant shall not be ejected by the landlord from the tenancy except on the ground of non-payment of rent:["Provided that where the tenant having built a permanent structure within the period specified above and for any of the purposes mentioned therein, renews the tenancy on expiration of the original contract he shall always be deemed to have built such permanent structure within the period of five years from the date of the renewed Contract :Provided further that a person having a right, title and interest over a permanent structure by whatever mode of acquisition he may have taken the tenancy from the landlord of the land wherein the said structure stand, shall not be ejected except on the ground of non-payment of rent"] (Added "proviso" in Section 5, by the Assam Act No. XVI of 1968 Section 2 (with effect from 22-6-1968) (Published in the Assam Gazette (Extraordinary), dated 22nd June, 1968).(b) where a tenant has effected improvements on the land of the tenancy under the terms whereof he is not entitled to effect such improvements, the tenant shall not be ejected by the landlord from the land of the tenancy unless compensation for reasonable improvements has been paid to the tenant.(2) No tenant shall be ejected by his landlord from the land of the tenancy except in execution of a decree for ejectment passed by a competent Civil Court.(3) No decree for ejectment passed on the ground of non-payment of rent shall be executed within a period of thirty days from the date of the decree and if the tenant pays into the Court whose duty it is to execute the decree the entire amount payable under the decree within the aforesaid period, the Court shall record the decree as satisfied."12. It is not possible for us to accept the contention, that the respondent-tenant was a protected tenant, with reference to a claim for ejectment on account of non-payment of rent. The instant conclusion of ours, is drawn from the second proviso to Section 5(1)(a) of the 1955 Act, which excludes the applicability thereof, when the same emerges on account of non-payment of rent. It is therefore, not possible for us to accept the submission canvassed at the hands of the learned counsel for the respondent-tenant based on Section 5 of the 1955 Act. We would have even otherwise not permitted the respondent to raise and canvass, any such claim as has been raised before us for the first time under the 1955 Act, for the simple reason, that it was never the case of the tenant, that he was a protected tenant. | 1[ds]7. The clear position emerging from the pleadings of the rival parties was, that the rent was payable and became due at the end of the month. It is also the accepted position, that rent was never tendered by thefrom month to month. Rent was paid to theas and when demanded. It is not necessary for us to deal with the oral demands, allegedly made by thein the month of August, 2000 (which pertained to arrears with effect from August, 1999). The only relevant consideration in our considered view is, the issuance of the demand notice on 12.8.2000 (which was served on theon 17.8.2000). Since arrears of rent were payable, with reference to at least the twelve preceding months, which obviously became due at the end of every such month, yet in view of the practise acknowledged between the parties, it has to be accepted, that the same would be due on such demand being raised by theThe aforesaid demand, undoubtedly, must be accepted to have been raised through the demand notice dated 12.8.2000. And the said demand, must be deemed to have become known to theon 17.8.2000 (the date when the notice was served).8. In terms of the provisions of Section 5 of the 1972 Act (extracted herein above), we are satisfied to conclude, that the rent became due and payable, when the aforesaid demand notice, came to be served on theInsofar, as the above inference is concerned, we find nothing to the contrary depicted even in the written statement filed on behalf of theIn response to the averments made on behalf of the landlord (in the suit preferred by him), it was acknowledged, that the tenancy was a monthly tenancy. In paragraph 13 of the written statement (extracted in the earlier part of this order) it stands acknowledged, that the rent became due as per the Bengali Calendar, at the end of the month. In our considered view, it makes little difference, whether the rent became due at the end of the Bengali calender month, or the English calender month because from August 1999 to August 2000, rent became due at the end of each one of the 12 intervening months. And as per the demand notice, last of all when the demand notice was served (on 17.8.2000). In view of the clear depiction in Section 5(1)(e), wherein, from the date due, arrears of rent are to be tendered within a fortnight. That alone, will save a tenant from eviction on the ground of10. The situation where rent tendered by the tenant is not accepted by the landlord, is governed by Section 5(4) of the 1972 Act. By virtue of the liberty available to a tenant under Section 5(4) of the 1972 Act, the period of deposit of arrears of rent, with the concerned Court is also a fortnight from the date when the rent had became due. Since we have already concluded herein above, that the rent had became due and payable on 17.8.2000, we are of the view, that the period of a fortnight to make a deposit of arrears of rent in a Court, would expire on 31.8.2000. The deposit made by theon 1.9.2000 was, therefore, clearly beyond the period contemplated under Section 5(4) of the 1972 Act. It is therefore apparent, that the claim raised by thent of arrears of rent was liable to be accepted, as the arrears were not deposited within the postulated time.It is not possible for us to accept the contention, that thewas a protected tenant, with reference to a claim for ejectment on account ofof rent. The instant conclusion of ours, is drawn from the second proviso to Section 5(1)(a) of the 1955 Act, which excludes the applicability thereof, when the same emerges on account ofof rent. It is therefore, not possible for us to accept the submission canvassed at the hands of the learned counsel for thebased on Section 5 of the 1955 Act. We would have even otherwise not permitted the respondent to raise and canvass, any such claim as has been raised before us for the first time under the 1955 Act, for the simple reason, that it was never the case of the tenant, that he was a protected tenant. | 1 | 2,822 | 821 | ### 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:
Calendar, at the end of the month. In our considered view, it makes little difference, whether the rent became due at the end of the Bengali calender month, or the English calender month because from August 1999 to August 2000, rent became due at the end of each one of the 12 intervening months. And as per the demand notice, last of all when the demand notice was served (on 17.8.2000). In view of the clear depiction in Section 5(1)(e), wherein, from the date due, arrears of rent are to be tendered within a fortnight. That alone, will save a tenant from eviction on the ground of non-payment of past rent.9. The question to be determined is, whether the respondent-tenant, factually tendered arrears of rent, from the date due. Having accepted the date of receipt of the demand notice, namely, 17.08.2000, as the date when the rent became due and payable, the same had to be tendered within a fortnight thereof. It is the case of the respondent-tenant, that the same was factually and actually tendered within a fortnight, contemplated under Section 5(1)(e), but the personal tender made by the respondent-tenant, was not accepted by the landlord. It is in the aforesaid circumstances, that the arrears of rent came to be deposited before the trial court on 1.9.2000.10. The situation where rent tendered by the tenant is not accepted by the landlord, is governed by Section 5(4) of the 1972 Act. By virtue of the liberty available to a tenant under Section 5(4) of the 1972 Act, the period of deposit of arrears of rent, with the concerned Court is also a fortnight from the date when the rent had became due. Since we have already concluded herein above, that the rent had became due and payable on 17.8.2000, we are of the view, that the period of a fortnight to make a deposit of arrears of rent in a Court, would expire on 31.8.2000. The deposit made by the respondent-tenant on 1.9.2000 was, therefore, clearly beyond the period contemplated under Section 5(4) of the 1972 Act. It is therefore apparent, that the claim raised by the appellant-landlord for non-payment of arrears of rent was liable to be accepted, as the arrears were not deposited within the postulated time.11. Despite our aforesaid conclusion, learned counsel for the respondent-tenant placed reliance on Section 5 of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955 (hereinafter referred to as the "1955 Act"), to contend, that the respondent-tenant was a protected tenant, and was not liable to be evicted under the provisions of 1972 Act. Section 5 relied upon by the learned counsel is extracted hereunder :"Section 5 - Protection from eviction(1) Notwithstanding anything in any contract or in any law for the time being in force -(a) where under the terms of a contract entered into between a landlord and his tenant whether before or after the commencement of this Act, a tenant is entitled to build, and has in pursuance of such terms actually built within the period of five years from the date of such contract, a permanent structure on the land of the tenancy for residential or business purposes, or where a tenant not being so entitled to build, has actually build any such structure on the land of the tenancy for any of the purposes aforesaid with the knowledge and acquiescence of the landlord, the tenant shall not be ejected by the landlord from the tenancy except on the ground of non-payment of rent:["Provided that where the tenant having built a permanent structure within the period specified above and for any of the purposes mentioned therein, renews the tenancy on expiration of the original contract he shall always be deemed to have built such permanent structure within the period of five years from the date of the renewed Contract :Provided further that a person having a right, title and interest over a permanent structure by whatever mode of acquisition he may have taken the tenancy from the landlord of the land wherein the said structure stand, shall not be ejected except on the ground of non-payment of rent"] (Added "proviso" in Section 5, by the Assam Act No. XVI of 1968 Section 2 (with effect from 22-6-1968) (Published in the Assam Gazette (Extraordinary), dated 22nd June, 1968).(b) where a tenant has effected improvements on the land of the tenancy under the terms whereof he is not entitled to effect such improvements, the tenant shall not be ejected by the landlord from the land of the tenancy unless compensation for reasonable improvements has been paid to the tenant.(2) No tenant shall be ejected by his landlord from the land of the tenancy except in execution of a decree for ejectment passed by a competent Civil Court.(3) No decree for ejectment passed on the ground of non-payment of rent shall be executed within a period of thirty days from the date of the decree and if the tenant pays into the Court whose duty it is to execute the decree the entire amount payable under the decree within the aforesaid period, the Court shall record the decree as satisfied."12. It is not possible for us to accept the contention, that the respondent-tenant was a protected tenant, with reference to a claim for ejectment on account of non-payment of rent. The instant conclusion of ours, is drawn from the second proviso to Section 5(1)(a) of the 1955 Act, which excludes the applicability thereof, when the same emerges on account of non-payment of rent. It is therefore, not possible for us to accept the submission canvassed at the hands of the learned counsel for the respondent-tenant based on Section 5 of the 1955 Act. We would have even otherwise not permitted the respondent to raise and canvass, any such claim as has been raised before us for the first time under the 1955 Act, for the simple reason, that it was never the case of the tenant, that he was a protected tenant.
### Response:
1
### Explanation:
7. The clear position emerging from the pleadings of the rival parties was, that the rent was payable and became due at the end of the month. It is also the accepted position, that rent was never tendered by thefrom month to month. Rent was paid to theas and when demanded. It is not necessary for us to deal with the oral demands, allegedly made by thein the month of August, 2000 (which pertained to arrears with effect from August, 1999). The only relevant consideration in our considered view is, the issuance of the demand notice on 12.8.2000 (which was served on theon 17.8.2000). Since arrears of rent were payable, with reference to at least the twelve preceding months, which obviously became due at the end of every such month, yet in view of the practise acknowledged between the parties, it has to be accepted, that the same would be due on such demand being raised by theThe aforesaid demand, undoubtedly, must be accepted to have been raised through the demand notice dated 12.8.2000. And the said demand, must be deemed to have become known to theon 17.8.2000 (the date when the notice was served).8. In terms of the provisions of Section 5 of the 1972 Act (extracted herein above), we are satisfied to conclude, that the rent became due and payable, when the aforesaid demand notice, came to be served on theInsofar, as the above inference is concerned, we find nothing to the contrary depicted even in the written statement filed on behalf of theIn response to the averments made on behalf of the landlord (in the suit preferred by him), it was acknowledged, that the tenancy was a monthly tenancy. In paragraph 13 of the written statement (extracted in the earlier part of this order) it stands acknowledged, that the rent became due as per the Bengali Calendar, at the end of the month. In our considered view, it makes little difference, whether the rent became due at the end of the Bengali calender month, or the English calender month because from August 1999 to August 2000, rent became due at the end of each one of the 12 intervening months. And as per the demand notice, last of all when the demand notice was served (on 17.8.2000). In view of the clear depiction in Section 5(1)(e), wherein, from the date due, arrears of rent are to be tendered within a fortnight. That alone, will save a tenant from eviction on the ground of10. The situation where rent tendered by the tenant is not accepted by the landlord, is governed by Section 5(4) of the 1972 Act. By virtue of the liberty available to a tenant under Section 5(4) of the 1972 Act, the period of deposit of arrears of rent, with the concerned Court is also a fortnight from the date when the rent had became due. Since we have already concluded herein above, that the rent had became due and payable on 17.8.2000, we are of the view, that the period of a fortnight to make a deposit of arrears of rent in a Court, would expire on 31.8.2000. The deposit made by theon 1.9.2000 was, therefore, clearly beyond the period contemplated under Section 5(4) of the 1972 Act. It is therefore apparent, that the claim raised by thent of arrears of rent was liable to be accepted, as the arrears were not deposited within the postulated time.It is not possible for us to accept the contention, that thewas a protected tenant, with reference to a claim for ejectment on account ofof rent. The instant conclusion of ours, is drawn from the second proviso to Section 5(1)(a) of the 1955 Act, which excludes the applicability thereof, when the same emerges on account ofof rent. It is therefore, not possible for us to accept the submission canvassed at the hands of the learned counsel for thebased on Section 5 of the 1955 Act. We would have even otherwise not permitted the respondent to raise and canvass, any such claim as has been raised before us for the first time under the 1955 Act, for the simple reason, that it was never the case of the tenant, that he was a protected tenant.
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P.E.C. LIMITED THROUGH ITS GENERAL MANAGER Vs. AUSTBULK SHIPPING SDN BHD | regime governing international commercial arbitration Dardana Limited v. Yukos Oil Company, [2002] 1 ALL ER (Comm.) 819. 17. According to the ICCA Guide, the approach of the Court for enforcement should be having a strong pro enforcement bias, a pragmatic, flexible and non formalist approach. The Courts in several countries have been liberal in interpreting the formal requirements of Article IV of the New York Convention. Excessive formalism in the matter of enforcement of foreign awards has also been deprecated. 18. It is relevant to take note of the Preamble of the Act wherein it is mentioned that the United Nations Commission on International Trade Law (UNCITRAL) has adopted the UNCITRAL Model law on International Commercial Arbitration ("Model Law") in 1985 and that the Act is made taking into account the Model law and Rules. Chapter VIII of the Model Law governs the recognition and enforcement of Awards. Article 35 (2) provides that the party applying for enforcement of the award shall supply the original award or a copy thereof. The Model Law does not lay down procedural details of recognition and enforcement, which are left to national procedural laws and practices. However, Article 35 (2) was amended in 2006 to liberalise formal requirements. Presentation of a copy of the arbitration agreement is no longer required Under Article 35 (2). 19. The object of the New York Convention is smooth and swift enforcement of foreign awards. Keeping in view the object and purpose of the New York Convention, we are of the view that the word "shall" in Section 47 of the Act has to be read as "may". The opposite view that it is obligatory for a party to file the arbitration agreement or the original award or the evidence to prove that the award is a foreign award at the time of filing the application would have the effect of stultifying the enforcement proceedings. The object of the New York Convention will be defeated if the filing of the arbitration agreement at the time of filing the application is made compulsory. At the initial stage of filing of an application for enforcement, non-compliance of the production of the documents mentioned in Section 47 should not entail in dismissal of the application for enforcement of an award. The party seeking enforcement can be asked to cure the defect of non-filing of the arbitration agreement. The validity of the agreement is decided only at a later stage of the enforcement proceedings. 20. It is relevant to note that there would be no prejudice caused to the party objecting to the enforcement of the Award by the non-filing of the arbitration agreement at the time of the application for enforcement. In addition, the requirement of filing a copy of the arbitration agreement under the Model Law which was categorized as a formal requirement was dispensed with. Section 48 which refers to the grounds on which the enforcement of a foreign award may be refused does not include the non-filing of the documents mentioned in Section 47. An application for enforcement of the foreign award can be rejected only on the grounds specified in Section 48. This would also lend support to the view that the requirement to produce documents mentioned in Section 47 at the time of application was not intended to be mandatory. 21. Reading the word "shall" in Section 47 of the Act as "may" would only mean that a party applying for enforcement of the award need not necessarily produce before the Court a document mentioned therein "at the time of the application". We make it clear that the said interpretation of the word "shall" as "may" is restricted only to the initial stage of the filing of the application and not thereafter. It is clear from the decisions relied upon by the counsel for the Appellant that Courts in certain jurisdictions have taken a strict view regarding the filing of the documents for enforcement of a foreign award. Courts in many other jurisdictions have taken the opposite view that the application for enforcement of the foreign awards does not warrant rejection for non-filing of the relevant documents including the award and the arbitral agreement. We need not adjudicate on this issue as the subject matter of this case does not relate to the non-filing of the arbitration agreement during the enforcement proceedings. There is no dispute that the arbitration agreement has been brought on record by both the parties. 22. The learned Counsel for the Appellant also submitted that the Appellant did not sign the Charter Party and cannot be treated as a party to the agreement. There is no dispute that the contract is governed by the English law under which there is no requirement for the Charter Party to be signed by the parties to make it binding. We have no doubt in approving the conclusion of the High Court on this point and rejecting the submission made on behalf of the Appellant. Abundant material was examined by both the Arbitrator and the High Court to record a finding that there existed a valid arbitration agreement. Article II of the First Schedule of the Act defines arbitration agreement as including an arbitral Clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams. The High Court found that the Charter Party which contained the arbitration agreement was agreed to and entered upon by the parties and the same is supported by the correspondence between the parties. The term "agreement in writing" in Article II is very wide. An arbitral Clause need not necessarily be found in a contract or an arbitral agreement. It can be included in the correspondence between the parties also. In the present case the arbitration agreement is found in the Charter Party which has been accepted by both the Arbitrator and the High Court. We see no reason to differ from the view taken by the High Court on this point. | 0[ds]12. Admittedly, an authenticated copy of the arbitration agreement was not placed on record by the Respondent at the time of filing of the application for enforcement. It is clear from the record that the Appellant placed the arbitration agreement along with its reply and thereafter the Respondent also filed the original arbitration agreement in the Court. The submission made by the Appellant is that production of the arbitration agreement at the time of filing of the award is mandatory, theof which ought to have resulted in the dismissal of the application. The Appellant sought support for this submission from the word "shall" appearing in Section 47. We do not agree with the submission made by the learned Counsel for the Appellant. We are of the opinion that the word "shall" appearing in Section 47 of the Act relating to the production of the evidence as specified in the provision at the time of application has to be read as "may".The object of the New York Convention is smooth and swift enforcement of foreign awards. Keeping in view the object and purpose of the New York Convention, we are of the view that the word "shall" in Section 47 of the Act has to be read as "may". The opposite view that it is obligatory for a party to file the arbitration agreement or the original award or the evidence to prove that the award is a foreign award at the time of filing the application would have the effect of stultifying the enforcement proceedings. The object of the New York Convention will be defeated if the filing of the arbitration agreement at the time of filing the application is made compulsory. At the initial stage of filing of an application for enforcement,of the production of the documents mentioned in Section 47 should not entail in dismissal of the application for enforcement of an award. The party seeking enforcement can be asked to cure the defect ofof the arbitration agreement. The validity of the agreement is decided only at a later stage of the enforcement proceedings.It is relevant to note that there would be no prejudice caused to the party objecting to the enforcement of the Award by theof the arbitration agreement at the time of the application for enforcement. In addition, the requirement of filing a copy of the arbitration agreement under the Model Law which was categorized as a formal requirement was dispensed with. Section 48 which refers to the grounds on which the enforcement of a foreign award may be refused does not include theof the documents mentioned in Section 47. An application for enforcement of the foreign award can be rejected only on the grounds specified in Section 48. This would also lend support to the view that the requirement to produce documents mentioned in Section 47 at the time of application was not intended to be mandatory.Reading the word "shall" in Section 47 of the Act as "may" would only mean that a party applying for enforcement of the award need not necessarily produce before the Court a document mentioned therein "at the time of the application". We make it clear that the said interpretation of the word "shall" as "may" is restricted only to the initial stage of the filing of the application and not thereafter. It is clear from the decisions relied upon by the counsel for the Appellant that Courts in certain jurisdictions have taken a strict view regarding the filing of the documents for enforcement of a foreign award. Courts in many other jurisdictions have taken the opposite view that the application for enforcement of the foreign awards does not warrant rejection forof the relevant documents including the award and the arbitral agreement. We need not adjudicate on this issue as the subject matter of this case does not relate to theof the arbitration agreement during the enforcement proceedings. There is no dispute that the arbitration agreement has been brought on record by both theis no dispute that the contract is governed by the English law under which there is no requirement for the Charter Party to be signed by the parties to make it binding. We have no doubt in approving the conclusion of the High Court on this point and rejecting the submission made on behalf of the Appellant. Abundant material was examined by both the Arbitrator and the High Court to record a finding that there existed a valid arbitration agreement. Article II of the First Schedule of the Act defines arbitration agreement as including an arbitral Clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams. The High Court found that the Charter Party which contained the arbitration agreement was agreed to and entered upon by the parties and the same is supported by the correspondence between the parties. The term "agreement in writing" in Article II is very wide. An arbitral Clause need not necessarily be found in a contract or an arbitral agreement. It can be included in the correspondence between the parties also. In the present case the arbitration agreement is found in the Charter Party which has been accepted by both the Arbitrator and the High Court. We see no reason to differ from the view taken by the High Court on this point. | 0 | 4,000 | 957 | ### Instruction:
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regime governing international commercial arbitration Dardana Limited v. Yukos Oil Company, [2002] 1 ALL ER (Comm.) 819. 17. According to the ICCA Guide, the approach of the Court for enforcement should be having a strong pro enforcement bias, a pragmatic, flexible and non formalist approach. The Courts in several countries have been liberal in interpreting the formal requirements of Article IV of the New York Convention. Excessive formalism in the matter of enforcement of foreign awards has also been deprecated. 18. It is relevant to take note of the Preamble of the Act wherein it is mentioned that the United Nations Commission on International Trade Law (UNCITRAL) has adopted the UNCITRAL Model law on International Commercial Arbitration ("Model Law") in 1985 and that the Act is made taking into account the Model law and Rules. Chapter VIII of the Model Law governs the recognition and enforcement of Awards. Article 35 (2) provides that the party applying for enforcement of the award shall supply the original award or a copy thereof. The Model Law does not lay down procedural details of recognition and enforcement, which are left to national procedural laws and practices. However, Article 35 (2) was amended in 2006 to liberalise formal requirements. Presentation of a copy of the arbitration agreement is no longer required Under Article 35 (2). 19. The object of the New York Convention is smooth and swift enforcement of foreign awards. Keeping in view the object and purpose of the New York Convention, we are of the view that the word "shall" in Section 47 of the Act has to be read as "may". The opposite view that it is obligatory for a party to file the arbitration agreement or the original award or the evidence to prove that the award is a foreign award at the time of filing the application would have the effect of stultifying the enforcement proceedings. The object of the New York Convention will be defeated if the filing of the arbitration agreement at the time of filing the application is made compulsory. At the initial stage of filing of an application for enforcement, non-compliance of the production of the documents mentioned in Section 47 should not entail in dismissal of the application for enforcement of an award. The party seeking enforcement can be asked to cure the defect of non-filing of the arbitration agreement. The validity of the agreement is decided only at a later stage of the enforcement proceedings. 20. It is relevant to note that there would be no prejudice caused to the party objecting to the enforcement of the Award by the non-filing of the arbitration agreement at the time of the application for enforcement. In addition, the requirement of filing a copy of the arbitration agreement under the Model Law which was categorized as a formal requirement was dispensed with. Section 48 which refers to the grounds on which the enforcement of a foreign award may be refused does not include the non-filing of the documents mentioned in Section 47. An application for enforcement of the foreign award can be rejected only on the grounds specified in Section 48. This would also lend support to the view that the requirement to produce documents mentioned in Section 47 at the time of application was not intended to be mandatory. 21. Reading the word "shall" in Section 47 of the Act as "may" would only mean that a party applying for enforcement of the award need not necessarily produce before the Court a document mentioned therein "at the time of the application". We make it clear that the said interpretation of the word "shall" as "may" is restricted only to the initial stage of the filing of the application and not thereafter. It is clear from the decisions relied upon by the counsel for the Appellant that Courts in certain jurisdictions have taken a strict view regarding the filing of the documents for enforcement of a foreign award. Courts in many other jurisdictions have taken the opposite view that the application for enforcement of the foreign awards does not warrant rejection for non-filing of the relevant documents including the award and the arbitral agreement. We need not adjudicate on this issue as the subject matter of this case does not relate to the non-filing of the arbitration agreement during the enforcement proceedings. There is no dispute that the arbitration agreement has been brought on record by both the parties. 22. The learned Counsel for the Appellant also submitted that the Appellant did not sign the Charter Party and cannot be treated as a party to the agreement. There is no dispute that the contract is governed by the English law under which there is no requirement for the Charter Party to be signed by the parties to make it binding. We have no doubt in approving the conclusion of the High Court on this point and rejecting the submission made on behalf of the Appellant. Abundant material was examined by both the Arbitrator and the High Court to record a finding that there existed a valid arbitration agreement. Article II of the First Schedule of the Act defines arbitration agreement as including an arbitral Clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams. The High Court found that the Charter Party which contained the arbitration agreement was agreed to and entered upon by the parties and the same is supported by the correspondence between the parties. The term "agreement in writing" in Article II is very wide. An arbitral Clause need not necessarily be found in a contract or an arbitral agreement. It can be included in the correspondence between the parties also. In the present case the arbitration agreement is found in the Charter Party which has been accepted by both the Arbitrator and the High Court. We see no reason to differ from the view taken by the High Court on this point.
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12. Admittedly, an authenticated copy of the arbitration agreement was not placed on record by the Respondent at the time of filing of the application for enforcement. It is clear from the record that the Appellant placed the arbitration agreement along with its reply and thereafter the Respondent also filed the original arbitration agreement in the Court. The submission made by the Appellant is that production of the arbitration agreement at the time of filing of the award is mandatory, theof which ought to have resulted in the dismissal of the application. The Appellant sought support for this submission from the word "shall" appearing in Section 47. We do not agree with the submission made by the learned Counsel for the Appellant. We are of the opinion that the word "shall" appearing in Section 47 of the Act relating to the production of the evidence as specified in the provision at the time of application has to be read as "may".The object of the New York Convention is smooth and swift enforcement of foreign awards. Keeping in view the object and purpose of the New York Convention, we are of the view that the word "shall" in Section 47 of the Act has to be read as "may". The opposite view that it is obligatory for a party to file the arbitration agreement or the original award or the evidence to prove that the award is a foreign award at the time of filing the application would have the effect of stultifying the enforcement proceedings. The object of the New York Convention will be defeated if the filing of the arbitration agreement at the time of filing the application is made compulsory. At the initial stage of filing of an application for enforcement,of the production of the documents mentioned in Section 47 should not entail in dismissal of the application for enforcement of an award. The party seeking enforcement can be asked to cure the defect ofof the arbitration agreement. The validity of the agreement is decided only at a later stage of the enforcement proceedings.It is relevant to note that there would be no prejudice caused to the party objecting to the enforcement of the Award by theof the arbitration agreement at the time of the application for enforcement. In addition, the requirement of filing a copy of the arbitration agreement under the Model Law which was categorized as a formal requirement was dispensed with. Section 48 which refers to the grounds on which the enforcement of a foreign award may be refused does not include theof the documents mentioned in Section 47. An application for enforcement of the foreign award can be rejected only on the grounds specified in Section 48. This would also lend support to the view that the requirement to produce documents mentioned in Section 47 at the time of application was not intended to be mandatory.Reading the word "shall" in Section 47 of the Act as "may" would only mean that a party applying for enforcement of the award need not necessarily produce before the Court a document mentioned therein "at the time of the application". We make it clear that the said interpretation of the word "shall" as "may" is restricted only to the initial stage of the filing of the application and not thereafter. It is clear from the decisions relied upon by the counsel for the Appellant that Courts in certain jurisdictions have taken a strict view regarding the filing of the documents for enforcement of a foreign award. Courts in many other jurisdictions have taken the opposite view that the application for enforcement of the foreign awards does not warrant rejection forof the relevant documents including the award and the arbitral agreement. We need not adjudicate on this issue as the subject matter of this case does not relate to theof the arbitration agreement during the enforcement proceedings. There is no dispute that the arbitration agreement has been brought on record by both theis no dispute that the contract is governed by the English law under which there is no requirement for the Charter Party to be signed by the parties to make it binding. We have no doubt in approving the conclusion of the High Court on this point and rejecting the submission made on behalf of the Appellant. Abundant material was examined by both the Arbitrator and the High Court to record a finding that there existed a valid arbitration agreement. Article II of the First Schedule of the Act defines arbitration agreement as including an arbitral Clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams. The High Court found that the Charter Party which contained the arbitration agreement was agreed to and entered upon by the parties and the same is supported by the correspondence between the parties. The term "agreement in writing" in Article II is very wide. An arbitral Clause need not necessarily be found in a contract or an arbitral agreement. It can be included in the correspondence between the parties also. In the present case the arbitration agreement is found in the Charter Party which has been accepted by both the Arbitrator and the High Court. We see no reason to differ from the view taken by the High Court on this point.
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Keshub Mahindra Vs. State of M.P | the way this highly volatile substance MIC was handled by them and which ultimately escaped in vapourous form and extinguished the lives of thousands of human beings and animals apart from causing serious bodily injuries to thousands of others. Our attention in this connection was also invited by learned senior counsel for the appellants to the case of Kurban Hussein Mohammedali Rangwalla Vs. State of Maharashtra, . It was submitted relying on he said decision that for punishing an accused under Sections 304A and 285 of the IPC it was required to be shown that because of the alleged rash and negligent act death must result and death must be the direct and proximate result. In that case on evidence led at the full fledged trial the question arose whether the charge was made out. All these judgments on which learned senior counsel for the appellants placed reliance, therefore, could have applicability for judging the culpability of the concerned accused after they face the trial and entire evidence is led in the case against them. However for framing charge u/s 304A on the aforesaid material it cannot be said that the said material even prima facie did not point out the culpability of the concerned accused in running a defective plant having number of operational defects and in being prima facie guilty of illegal omissions to take safety measures in running such a limping plant on that fateful night which resulted into this colossal tragedy. The aforesaid conclusion of ours, therefore, would make out a prima facie case against accused Nos. 5,6,7,8 and 9 who were in actual charge of running of the Bhopal plant and would require them to face the trial for charge u/s 304A of the IPC. 23. So far as the remaining accused Nos. 2, 3, 4 and 12 are concerned the material produced on record clearly indicates at least prima facie that they being at the helm of affairs have to face this charge for the alleged negligence and rashness of their subordinates who actually operated the plant on that fateful night at Bhopal and for that purpose Section 35 of the IPC would also prima facie get attracted against them. A mere look at that Section shows that if the act alleged against these accused becomes criminal on account of their sharing common knowledge about the defective running of plant at Bhopal by the remaining accused who represented them on spot and who had to carry out their directions from them and who were otherwise required to supervise their activity, Section 35 of the IPC could at least prima facie be invoked against accused 2, 3, 4 and 12 to be read with Section 304A, IPC. Consequently we find that on the material led by the prosecution against the accused at this stage a prima facie case was made out by the prosecution for framing charges against accused Nos. 2, 3, 4 and 12 u/s 304A read with Section 35 IPC while substantive charges u/s 304A could be framed against accused Nos. 5, 6, 7, 8 and 9. In this connection Shri Desai, learned senior counsel for the appellants vehemently submitted that the High Court was in error in invoking Section 135 against the concerned accused. Placing reliance on Esso Standard Inc. Vs. Udharam Bhagwandas Japanwalla, he submitted that, that was a case in which for the individual acts of the directors of the company the company was sought to be made liable by invoking the principle of corporate liability based on the doctrine of directing mind and will. Shri Desai submitted that this was a converse case where for the act of the company which is a corporate body being accused No. 12 the individual directors are sought to be roped in. The aforesaid contention of Shri Desai cannot be of any avail at this stage for the simple reason that whether on facts such converse case is made or not in the light of aforesaid decision will depend upon the evidence that may be led at the stage of trial. But this would not rule out framing of appropriate charge against the appellants if there is prima facie material against them which in our view has been made available by the prosecution before the Trial Court for framing such a charge against the concerned accused. 24. Shri Ashok Desai, learned senior counsel then submitted that the material led by the prosecution does not even remotely indicate that accused No. 2 who was at Bombay could have shared any knowledge with persons at Bhopal who were actually operating the plant. .When from the documentary evidence produced by the prosecution it is prima facie indicated that the accused at the helm of affairs was in the apex position enabling him to know the shortcomings of the working of the plant at Bhopal. Whether he actually shared knowledge or not will be a question of evidence and proof to be resolved at the stage of trial. However from the material available on record it cannot be said that the prosecution had not prima facie made out a case for attracting Section 35, IPC so far as the present accused are concerned. However we must add a caution. We must note that whatever we have observed at this stage in connection with the material produced by the prosecution for framing charges against the accused is strictly confined to this limited question. Whether the accused are found actually guilty of the charges framed against them or not will strictly depend upon the evidence that may be led at the stage of trial and the court will have to decide the culpability of the concerned accused, if any, strictly confined to the evidence that may be led at the stage of trial. Our present observations, therefore, should not be treated to have even remotely suggested that in fact the accused are guilty of the offences with which they are liable to be charged pursuant to our present order. | 1[ds]In the case of Niranjan Singh Karam Singh Punjabi and Others Vs. Jitendra Bhimraj Bijja and others, , one of us A.M. Ahmadi, J. (as His Lordship then was) speaking for the Division Bench of this Court in this connection observed as under:It seems well settled that at the Ss. 227-228 stage i.e., stage of framing the charge, the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose sift the evidence as it cannot be expected even at that initial stage co accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.It is also well settled that while exercising jurisdiction u/s 482 Cr.P.C. when the High Court is called upon to quash the charge pursuant to which proceedings at the stage of trial are pending, and even when the High Court is called upon to quash proceedings pursuant to complaint, only a prima facie appraisal of the allegations made in the complaint and the material in support thereof has to be done and the Court has no jurisdiction to go into the merits of the allegations as that stage would come when the trial proceeds.So far as accused Nos. 2, 3, 4 and 15 are concerned they are also charged with offences under Sections 326 324, IPc and 429 IPC read with Section 35 IPC while accused 5 to 9 are charged substantially with these offences also. We shall first deal with the charges framed against the concerned accused under the main provisions of Section 304 Part II, IPC. A look at Section 304 Part II shows that the concerned accused can be charged under that, provision for an offence of culpable homicide not amounting to murder and when being so charged if it is alleged that the act of the concerned accused is done with the knowledge that it is likely to cause death . but without any intention to cause death or to cause such bodily injury as is likely to cause death the charged offences would fall u/s 304 Part II. However, before any charge u/s 304 Part II can be framed, the material on record must at least prima facie show that the accused is guilty of culpable homicide and the act allegedly committed by him must amount to culpable homicide/However, if the material relief - upon for framing such a charge against the concerned accused falls short of even prima facie indicating that the accused appeared to be guilty of an offence of culpable homicide Section 304 Part I or Part II would get out of the picture.In this connection we have to keep in view Section 299 of the Indian Penal Code which defines culpable homicide.Consequently the material relied upon by the prosecution for framing a charge u/s 304 Part II must at least prima facie indicate that the accused had done an act which had caused death with at least such a knowledge that he was by such act likely to cause death. The entire material which the prosecution relied upon before the Trail Court for framing the charge and to which we have made a detailed reference earlier, in our view, cannot support such a charge unless it indicates prima facie that on that fateful night when the plant was run at Bhopal it was run by the concerned accused with the knowledge that such running of the plant was likely to cause deaths of human beings. It cannot be disputed that mere act of running a plant as per the permission granted by the authorities would not be a criminal act. Even assuming that it was a defective plant and it was dealing with a very toxic and hazardous substance like MIC the mere act of storing such a material by the accused in that No. 610 could not even prima facie suggest that the concerned accused thereby had knowledge that they were likely to cause death of human beings. In fairness to prosecution it was not suggested and could not be suggested that the accused had an intention to kill any human being while operating the plant. Similarly on the aforesaid material placed on record it could not be even prima facie suggested by the prosecution that any of the accused had a knowledge that by operating the plant on that fateful night whereat such dangerous and highly volatile substance like MIC was stored they had the knowledge that by this very act itself they were likely to cause death of any human being. Consequently in our view taking entire material as aforesaid on its face value and assuming it to represent correct factual position in connection with the operation of the plant at Bhopal on that fateful night it could not be said that the said material even prima facie called for framing of a charge against the concerned accused u/s 304 Part II. IPC on the spacious plea that the said act of the accused amounted to culpable homicide only because the operation of the plant on that night ultimately resulted in deaths of number of human beings and cattle. It is also pertinent to note that when the complaint was originally filed suo motu by the police authorities at Bhopal and the criminal case was registered at the police station Hanumanganj, Bhopal as case No. 1104/84 it was registered u/s 304A of the IPC. We will come to that provision a little later. Suffice it to say at this stage that on the entire material produced by the prosecution in support of the charge it could not be said even prima facie that it made the accused liable to face the charge u/s 304 Part II.Once we reach the conclusion that the material produced by the prosecution before the Trial Court at the stage of framing of charges did not even prima facie connect the accused with any act done with the knowledge that by that act itself deaths of human beings would be caused the accused could not be even charged for culpable homicide and consequently there would be no question of attracting Section 304 Part II against the concerned accused on such material. When on the material produced by the prosecution no charge could be framed against of the accused u/s 304 Part II there would remain no occasion to press in service the applicability of Section 35, IPC in support of such a charge for those accused who were not actually concerned with the running of the plant at Bhopal, namely, accused Nos. 2, 3, 4 and 12.Section 324 deals with voluntarily causing hurt by dangerous weapons or means while Section 326 deals with voluntarily causing grievous hurt by dangerous weapons or means. Both these sections for their application require material against the accused on the basis of which it would be said that the accused had voluntarily caused such hurt or grievous hurt, as the case may be. Section 321 defines voluntarily causing hurt and provides that, whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said voluntarily to cause hurt. Similarly Section 322 deals with voluntarily causing grievous hurt and lays down that, whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said voluntarily to cause grievous hurt. For applicability of these Sections the material relied upon by the prosecution in support of such charges must show that the concerned accused had committed the act complained of at least with the knowledge that by such act he was likely to cause hurt or grievous hurt to the victim. We have already indicated hereinabove that the material pressed in service by the prosecution for framing such charges against the accused falls short of indicating that the act of running the plant on that fateful night at Bhopal which in its turn involved storing and utilising highly dangerous and volatile substance like MIC in their storage tank No. 610 could not even prima facie be said to have done with the knowledge that by such act itself simple hurt or grievous hurt was likely to be caused to any one. Consequently on such material even charge under Sections 324 and 326. IPC could not have been framed against the concerned accused. Once this conclusion is reached there would also remain no occasion to press in service against the absentee accused Nos. 2, 3,4 as well as 12 Section 35 IPC which the prosecution sought to press in service along with substantive Sections 324 and 326 IPC. In fact on the material as placed by the prosecution in support of these charges if a charge u/s 304 Part II cannot be framed then on the parity of reasoning no charge under Sections 324 and 326 could also be framed.On these findings of ours the appeals will be required to be allowed and all these charges will have to be quashed.The term mischief is defined by Section 425 IPC.Before the said Section is pressed in service the material relied upon by the prosecution must indicate even prima facie that the concerned accused by running the plant at Bhopal on that fateful night had knowledge that by running such plant they were likely to cause wrongful loss or damage to the public or to any person. It is difficult to appreciate how said provision can be pressed in service on the basis of the material referred to hereinabove which does not whisper or even prima facie indicate how by running such a plant wherein highly dangerous and volatile substance like MIC was stored in tank No. 610 the accused had the knowledge that by that act alone they were likely to destroy anybodys property or cause wrongful loss or damage to any person. Once the applicability of Section 425. IPC dealing with mischief is ruled out on such material there would remain no occasion to invoke Section 429 which for its applicability requires the prosecution to show in the first instance any material against the concerned accused indicating the commission of mischief by the accused. In our view, therefore, on the material pressed in service by the prosecution for framing charges against the accused no charge could have been framed against the concerned accused either u/s 304 Part II or u/s 324 326 or 429, IPC with or without the aid of Section 35, IPC.It is true that though originally the criminal case was registered for an offence u/s 304A of the IPC the Central Bureau of Investigation which took up the investigation thought it proper to press in service Section 304 Part II and Sections 324 326 or 429 of the IPC. Charges under these Sections have been found by us to be unsustainable on the material produced by the prosecution on record in support of these charges. However that does not mean that on the material as it stands on record the accused cannot even prima facie be alleged to have committed any criminal offence for which they can be called upon to face the trial and that they should get a clean chit and clear walk-over. In our view the prosecution on the material as aforesaid had made out a prima facie case against the accused for being tried u/s 304A of the IPCIt is true that though originally the criminal case was registered for an offence u/s 304A of the IPC the Central Bureau of Investigation which took up the investigation thought it proper to press in service Section 304 Part II and Sections 324 326 or 429 of the IPC. Charges under these Sections have been found by us to be unsustainable on the material produced by the prosecution on record in support of these charges. However that does not mean that on the material as it stands on record the accused cannot even prima facie be alleged to have committed any criminal offence for which they can be called upon to face the trial and that they should get a clean chit and clear walk-over. In our view the prosecution on the material as aforesaid had made out a prima facie case against the accused for being tried u/s 304A of the IPCOn our finding that the material pressed in service by the prosecution does not indicate even prima facie that the accused were guilty of an offence of culpable homicide and, therefore, Section 304 Part II was out of picture. Section 304A on this very finding can straightaway get attracted at least prima facie. It cannot be disputed that because of the operation of the defective plant at Bhopal on that fateful night a highly dangerous and volatile substance like MIC got converted into poisonous gas which snuffed off the lives of thousands of human beings and maimed other thousands and killed number of animals and that all happened, as seen at least prima facie the material led by the prosecution on record, because of rash and negligent act on the part of the accused who were in-charge of the plant at Bhopal. Even though, therefore, these accused cannot be charged for offences u/s 304 Part II the material led against them by the prosecution at least prima facie showed that the accused were guilty of rash or negligent acts not amounting to culpable homicide and by that act caused death of large number of persons. We may mention that on the question whether on this material Section 304A (sec) be invoked or not, learned senior counsel for the appellants as well as learned Addl. Solicitor General for the respondent-State did address us and, therefore, we can and should, with a view to avoid multiplicity of proceedings, exercise our powers under Article 142 of the Constitution and decide whether the material led by the prosecution can prima facie support charges u/s 304A against concerned accused.Whether the prosecution brings home the charge u/s 304A or not will, of course, have to be decided in the light of the evidence that may be led in the trial against the accused who is required to face the charge u/s 304A. But for framing such a charge the material on record must at this stage be assumed to be representing a true version of the event.In this connection we must observe that the material led by the prosecution to which we have made a detailed reference earlier prima facie shows that there were not only structural defects but even operational defects in the working of the plant on that fateful night which resulted into this grim tragedy. Consequently a prima facie case is made out for framing charges u/s 304A against the concerned accused. If ultimately on the evidence led by the prosecution and even by the defence if at all they choose to lead evidence in rebuttal, it is found that the act complained of was not the proximate and efficient cause of death and intervention of others negligence had taken place the accused may get acquittal after facing the full fledged trial. But that stage has yet not come. It would, therefore, be premature at this stage to say as to what would be the ultimate result of the trial once the accused are made to face such a trial. But it cannot be said that on the material led by the prosecution at this stage even the face of culpable negligence or rashness is also not made out at least prima facie against the concerned accused and the trial should be nipped in the bud even for such a charge.Our attention was also invited by learned senior counsel for the appellants in support of their contention that the material on record does not prima facie make out a case for framing a charge u/s 304A. IPC. The following observations of Hegde, J. speaking for a Bench of three learned Judges in the case of Suleman Rehiman Mulani and Another Vs. State of Maharashtra, were pressed in service:The requirements of Section 304A I.P.C. are that the death of any person must have been caused by the accused by doing any rash or negligent act. In other words, there must be proof that the rash or negligent act of the accused was the proximate cause of the death. There must be direct nexus between the death of a person and the rash or negligent act of the accused. There is no presumption in law that a person who possesses only a learners licence or possesses no licence at all does not know driving. For various reasons, not excluding sheer indifference, he might not have taken a regular licence. The prosecution evidence that first appellant had driven the jeep to various places on the day previous to the occurrence was a proof of the fact that he know driving.Even that decision cannot be of any avail to the appellants for the simple reason that question of proof of rashness and negligence will arise at the stage of trial after full evidence is led by the prosecution and even by the accused side if at all they choose to do so and in the light of that evidence the question would arise whether the charge as framed is made out by the prosecution against the concerned accused.It cannot be gainsaid that the voluminous evidence led by the prosecution in this connection at least prima facie shows that the concerned accused who operated the plant on that fateful night at Bhopal could be alleged to be at least guilty of rash and negligent act in the way this highly volatile substance MIC was handled by them and which ultimately escaped in vapourous form and extinguished the lives of thousands of human beings and animals apart from causing serious bodily injuries to thousands of others.All these judgments on which learned senior counsel for the appellants placed reliance, therefore, could have applicability for judging the culpability of the concerned accused after they face the trial and entire evidence is led in the case against them. However for framing charge u/s 304A on the aforesaid material it cannot be said that the said material even prima facie did not point out the culpability of the concerned accused in running a defective plant having number of operational defects and in being prima facie guilty of illegal omissions to take safety measures in running such a limping plant on that fateful night which resulted into this colossal tragedy. The aforesaid conclusion of ours, therefore, would make out a prima facie case against accused Nos. 5,6,7,8 and 9 who were in actual charge of running of the Bhopal plant and would require them to face the trial for charge u/s 304A of the IPC.23. So far as the remaining accused Nos. 2, 3, 4 and 12 are concerned the material produced on record clearly indicates at least prima facie that they being at the helm of affairs have to face this charge for the alleged negligence and rashness of their subordinates who actually operated the plant on that fateful night at Bhopal and for that purpose Section 35 of the IPC would also prima facie get attracted against them. A mere look at that Section shows that if the act alleged against these accused becomes criminal on account of their sharing common knowledge about the defective running of plant at Bhopal by the remaining accused who represented them on spot and who had to carry out their directions from them and who were otherwise required to supervise their activity, Section 35 of the IPC could at least prima facie be invoked against accused 2, 3, 4 and 12 to be read with Section 304A, IPC. Consequently we find that on the material led by the prosecution against the accused at this stage a prima facie case was made out by the prosecution for framing charges against accused Nos. 2, 3, 4 and 12 u/s 304A read with Section 35 IPC while substantive charges u/s 304A could be framed against accused Nos. 5, 6, 7, 8 and 9.In this connection Shri Desai, learned senior counsel for the appellants vehemently submitted that the High Court was in error in invoking Section 135 against the concerned accused. Placing reliance on Esso Standard Inc. Vs. Udharam Bhagwandas Japanwalla, he submitted that, that was a case in which for the individual acts of the directors of the company the company was sought to be made liable by invoking the principle of corporate liability based on the doctrine of directing mind and will. Shri Desai submitted that this was a converse case where for the act of the company which is a corporate body being accused No. 12 the individual directors are sought to be roped in. The aforesaid contention of Shri Desai cannot be of any avail at this stage for the simple reason that whether on facts such converse case is made or not in the light of aforesaid decision will depend upon the evidence that may be led at the stage of trial. But this would not rule out framing of appropriate charge against the appellants if there is prima facie material against them which in our view has been made available by the prosecution before the Trial Court for framing such a charge against the concerned accused..When from the documentary evidence produced by the prosecution it is prima facie indicated that the accused at the helm of affairs was in the apex position enabling him to know the shortcomings of the working of the plant at Bhopal. Whether he actually shared knowledge or not will be a question of evidence and proof to be resolved at the stage of trial. However from the material available on record it cannot be said that the prosecution had not prima facie made out a case for attracting Section 35, IPC so far as the present accused are concerned. However we must add a caution. We must note that whatever we have observed at this stage in connection with the material produced by the prosecution for framing charges against the accused is strictly confined to this limited question. Whether the accused are found actually guilty of the charges framed against them or not will strictly depend upon the evidence that may be led at the stage of trial and the court will have to decide the culpability of the concerned accused, if any, strictly confined to the evidence that may be led at the stage of trial. Our present observations, therefore, should not be treated to have even remotely suggested that in fact the accused are guilty of the offences with which they are liable to be charged pursuant to our present order.26. As one of the parties have addressed us on these aspects we leave this question for consideration of the learned Trial Judge who may after hearing the parties decide whether on the material as led by the prosecution on record at this stage charges, if any, can also be framed under Sections 336 337 and 338 of the IPC with or without the aid of Section 35 of the IPC. We express no opinion on this aspect and leave it open to the Trial Court to address itself on this question. | 1 | 17,410 | 4,147 | ### Instruction:
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the way this highly volatile substance MIC was handled by them and which ultimately escaped in vapourous form and extinguished the lives of thousands of human beings and animals apart from causing serious bodily injuries to thousands of others. Our attention in this connection was also invited by learned senior counsel for the appellants to the case of Kurban Hussein Mohammedali Rangwalla Vs. State of Maharashtra, . It was submitted relying on he said decision that for punishing an accused under Sections 304A and 285 of the IPC it was required to be shown that because of the alleged rash and negligent act death must result and death must be the direct and proximate result. In that case on evidence led at the full fledged trial the question arose whether the charge was made out. All these judgments on which learned senior counsel for the appellants placed reliance, therefore, could have applicability for judging the culpability of the concerned accused after they face the trial and entire evidence is led in the case against them. However for framing charge u/s 304A on the aforesaid material it cannot be said that the said material even prima facie did not point out the culpability of the concerned accused in running a defective plant having number of operational defects and in being prima facie guilty of illegal omissions to take safety measures in running such a limping plant on that fateful night which resulted into this colossal tragedy. The aforesaid conclusion of ours, therefore, would make out a prima facie case against accused Nos. 5,6,7,8 and 9 who were in actual charge of running of the Bhopal plant and would require them to face the trial for charge u/s 304A of the IPC. 23. So far as the remaining accused Nos. 2, 3, 4 and 12 are concerned the material produced on record clearly indicates at least prima facie that they being at the helm of affairs have to face this charge for the alleged negligence and rashness of their subordinates who actually operated the plant on that fateful night at Bhopal and for that purpose Section 35 of the IPC would also prima facie get attracted against them. A mere look at that Section shows that if the act alleged against these accused becomes criminal on account of their sharing common knowledge about the defective running of plant at Bhopal by the remaining accused who represented them on spot and who had to carry out their directions from them and who were otherwise required to supervise their activity, Section 35 of the IPC could at least prima facie be invoked against accused 2, 3, 4 and 12 to be read with Section 304A, IPC. Consequently we find that on the material led by the prosecution against the accused at this stage a prima facie case was made out by the prosecution for framing charges against accused Nos. 2, 3, 4 and 12 u/s 304A read with Section 35 IPC while substantive charges u/s 304A could be framed against accused Nos. 5, 6, 7, 8 and 9. In this connection Shri Desai, learned senior counsel for the appellants vehemently submitted that the High Court was in error in invoking Section 135 against the concerned accused. Placing reliance on Esso Standard Inc. Vs. Udharam Bhagwandas Japanwalla, he submitted that, that was a case in which for the individual acts of the directors of the company the company was sought to be made liable by invoking the principle of corporate liability based on the doctrine of directing mind and will. Shri Desai submitted that this was a converse case where for the act of the company which is a corporate body being accused No. 12 the individual directors are sought to be roped in. The aforesaid contention of Shri Desai cannot be of any avail at this stage for the simple reason that whether on facts such converse case is made or not in the light of aforesaid decision will depend upon the evidence that may be led at the stage of trial. But this would not rule out framing of appropriate charge against the appellants if there is prima facie material against them which in our view has been made available by the prosecution before the Trial Court for framing such a charge against the concerned accused. 24. Shri Ashok Desai, learned senior counsel then submitted that the material led by the prosecution does not even remotely indicate that accused No. 2 who was at Bombay could have shared any knowledge with persons at Bhopal who were actually operating the plant. .When from the documentary evidence produced by the prosecution it is prima facie indicated that the accused at the helm of affairs was in the apex position enabling him to know the shortcomings of the working of the plant at Bhopal. Whether he actually shared knowledge or not will be a question of evidence and proof to be resolved at the stage of trial. However from the material available on record it cannot be said that the prosecution had not prima facie made out a case for attracting Section 35, IPC so far as the present accused are concerned. However we must add a caution. We must note that whatever we have observed at this stage in connection with the material produced by the prosecution for framing charges against the accused is strictly confined to this limited question. Whether the accused are found actually guilty of the charges framed against them or not will strictly depend upon the evidence that may be led at the stage of trial and the court will have to decide the culpability of the concerned accused, if any, strictly confined to the evidence that may be led at the stage of trial. Our present observations, therefore, should not be treated to have even remotely suggested that in fact the accused are guilty of the offences with which they are liable to be charged pursuant to our present order.
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the prosecution against the concerned accused.It cannot be gainsaid that the voluminous evidence led by the prosecution in this connection at least prima facie shows that the concerned accused who operated the plant on that fateful night at Bhopal could be alleged to be at least guilty of rash and negligent act in the way this highly volatile substance MIC was handled by them and which ultimately escaped in vapourous form and extinguished the lives of thousands of human beings and animals apart from causing serious bodily injuries to thousands of others.All these judgments on which learned senior counsel for the appellants placed reliance, therefore, could have applicability for judging the culpability of the concerned accused after they face the trial and entire evidence is led in the case against them. However for framing charge u/s 304A on the aforesaid material it cannot be said that the said material even prima facie did not point out the culpability of the concerned accused in running a defective plant having number of operational defects and in being prima facie guilty of illegal omissions to take safety measures in running such a limping plant on that fateful night which resulted into this colossal tragedy. The aforesaid conclusion of ours, therefore, would make out a prima facie case against accused Nos. 5,6,7,8 and 9 who were in actual charge of running of the Bhopal plant and would require them to face the trial for charge u/s 304A of the IPC.23. So far as the remaining accused Nos. 2, 3, 4 and 12 are concerned the material produced on record clearly indicates at least prima facie that they being at the helm of affairs have to face this charge for the alleged negligence and rashness of their subordinates who actually operated the plant on that fateful night at Bhopal and for that purpose Section 35 of the IPC would also prima facie get attracted against them. A mere look at that Section shows that if the act alleged against these accused becomes criminal on account of their sharing common knowledge about the defective running of plant at Bhopal by the remaining accused who represented them on spot and who had to carry out their directions from them and who were otherwise required to supervise their activity, Section 35 of the IPC could at least prima facie be invoked against accused 2, 3, 4 and 12 to be read with Section 304A, IPC. Consequently we find that on the material led by the prosecution against the accused at this stage a prima facie case was made out by the prosecution for framing charges against accused Nos. 2, 3, 4 and 12 u/s 304A read with Section 35 IPC while substantive charges u/s 304A could be framed against accused Nos. 5, 6, 7, 8 and 9.In this connection Shri Desai, learned senior counsel for the appellants vehemently submitted that the High Court was in error in invoking Section 135 against the concerned accused. Placing reliance on Esso Standard Inc. Vs. Udharam Bhagwandas Japanwalla, he submitted that, that was a case in which for the individual acts of the directors of the company the company was sought to be made liable by invoking the principle of corporate liability based on the doctrine of directing mind and will. Shri Desai submitted that this was a converse case where for the act of the company which is a corporate body being accused No. 12 the individual directors are sought to be roped in. The aforesaid contention of Shri Desai cannot be of any avail at this stage for the simple reason that whether on facts such converse case is made or not in the light of aforesaid decision will depend upon the evidence that may be led at the stage of trial. But this would not rule out framing of appropriate charge against the appellants if there is prima facie material against them which in our view has been made available by the prosecution before the Trial Court for framing such a charge against the concerned accused..When from the documentary evidence produced by the prosecution it is prima facie indicated that the accused at the helm of affairs was in the apex position enabling him to know the shortcomings of the working of the plant at Bhopal. Whether he actually shared knowledge or not will be a question of evidence and proof to be resolved at the stage of trial. However from the material available on record it cannot be said that the prosecution had not prima facie made out a case for attracting Section 35, IPC so far as the present accused are concerned. However we must add a caution. We must note that whatever we have observed at this stage in connection with the material produced by the prosecution for framing charges against the accused is strictly confined to this limited question. Whether the accused are found actually guilty of the charges framed against them or not will strictly depend upon the evidence that may be led at the stage of trial and the court will have to decide the culpability of the concerned accused, if any, strictly confined to the evidence that may be led at the stage of trial. Our present observations, therefore, should not be treated to have even remotely suggested that in fact the accused are guilty of the offences with which they are liable to be charged pursuant to our present order.26. As one of the parties have addressed us on these aspects we leave this question for consideration of the learned Trial Judge who may after hearing the parties decide whether on the material as led by the prosecution on record at this stage charges, if any, can also be framed under Sections 336 337 and 338 of the IPC with or without the aid of Section 35 of the IPC. We express no opinion on this aspect and leave it open to the Trial Court to address itself on this question.
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MUNICIPAL COMMISSIONER, MUNICIPAL CORPORATION OF GREATER MUMBAI & ORS Vs. PANNA MAHESH CHANDRA DAVE & ANR. | High Court within a weeks time from the date of receipt of the order to enable the said Authority to decide and submit a report expeditiously preferably within a period of eight weeks from the date of communication of this order. List the other Special Leave Petitions after Report is received from the Legal Services Authority of the Bombay High Court. 12. Pursuant to the said order, the Secretary of the High Court Legal Services Committee, Bombay filed a report dated 07.02.2019. The important findings recorded in the Report of the High Court Legal Services Committee are (1) that the assessment certificate issued by the Corporation shows the existence of superstructures from a period prior to 1961 (2) that some of the respondents in the special leave petitions were issued with notices under Section 3Z(2) (i) of the Slum Act and that they are eligible for permanent alternative accommodation, as they have produced electricity bill Gumasta Licence etc. from a period prior to 1995 while the cut-off date was only 01.01.2000 and (3) that the other respondents are also eligible for permanent alternative accommodation, as their superstructures were duly assessed in the year 1961 and indisputably, those structures were demolished on 26.10.2017. 13. The Municipal Corporation has filed an affidavit of objections to the Report of the High Court Legal Services Committee. It is claimed in the said affidavit that the respondents did not produce any proof of existence of superstructures prior to the Datum Line of 1962; that the shop owners failed to submit any valid, legal proof; that the land under reference was not declared as a slum under the Slum Act; that the owner of the land Smt. Geeta Angare had not submitted the names of the eligible tenants; that out of 11 structures, the occupants of 4 structures were already found eligible for alternate accommodation; that out of the remaining 7 structures, 3 have been assessed to tax and that, therefore, in addition to the 4 structures declared eligible earlier, 3 more may become eligible for alternative accommodation. 14. Drawing our attention to the various documents and also to the Report of the High Court Legal Services Committee, it was strenuously contended by Mr. Shekhar Naphade that the grant of alternate accommodation cannot be claimed by the respondents as a matter of right, unless they fulfill the parameters fixed by the Municipal Corporation and that the ad-hoc identification of parties for the grant of alternate accommodation without any supporting documents would create huge disparities. The learned Senior Counsel has also assailed the findings of the High Court Legal Services Committee on the ground that those findings were not supported by any documentary evidence. 15. We have carefully considered the contentions of the learned senior counsel for the Municipal Corporation. We should point out at the outset that the legal heirs of the original owner of the land were the petitioners in one writ petition and eleven persons claiming to be the tenants, were the petitioners in the other writ petitions. Insofar as persons claiming to be the owners of the land are concerned, the Municipal Corporation itself had conceded before the High Court that they were willing to offer TDR. In paragraph 15 of the affidavit in reply filed by the Municipal Corporation in Writ Petition No. 3090 of 2017, it was stated by the Municipal Corporation as follows: I say that the respondents Nos.2 to 4 are willing to grant the necessary benefit such as TDR to the rightful owner of the plot of land which is affected by road widening scheme. I say that the petitioner No.1 had contacted the officers at R/North Ward as regarding the issuance of TDR. The petitioner No.1 had attended the meeting in Asst. Municipal Commissioner, R/North office on 11 th November, 2017, when she was informed that she has to contact the office of Chief Engineer (DP) along with relevant papers. I say that the petitioner had agreed and given assurance to the respondent that she will contact the said office for granting her TDR in lieu of land being acquired for the purpose of road widening. I understand that petitioner No.1 has not contacted the office of Chief Engineer (OP) for the reasons best known to her. 16. After having stated so in their affidavit in reply, the Municipal Corporation ought not to have come up with a special leave petition even in respect of Writ Petition No.3090 of 2017. In fact one of the two substantial questions of law sought to be raised, which we have extracted earlier, also concedes the position taken the Corporation that the respondents 1 to 3 in Special Leave Petition No.18376 of 2018 are entitled to relief. Therefore, we do not know how and why the Corporation is blowing hot and cold. 17. Insofar as those eleven tenants are concerned, the Corporation agreed both before the High Court and before this Court that four of them are entitled to alternate accommodation. Therefore, the special leave petitions filed in respect of those four have also been disposed of by the order dated 05.12.2018. 18. Therefore, we are left only with seven tenants. In the affidavit of objections filed to the Report of the High Court Legal Services Committee, the Corporation has conceded that three out of those seven tenants are also eligible. Therefore, ultimately the dispute has boiled down only to four tenants. 19. The High Court has recorded a finding of fact that the Municipal Corporation demolished the superstructures and took possession in a high handed manner. The Legal Services Committee has recorded a finding that the superstructures were in existence from a period prior to 1961. These findings of fact cannot be interfered with by this Court in a special leave petition under Article 136 of the Constitution of India, unless the findings shock our conscience. The findings of the High court are not perverse. Therefore, we find absolutely no grounds to interfere with the judgment of the High Court. | 0[ds]We should point out at the outset that the legal heirs of the original owner of the land were the petitioners in one writ petition and eleven persons claiming to be the tenants, were the petitioners in the other writ petitions. Insofar as persons claiming to be the owners of the land are concerned, the Municipal Corporation itself had conceded before the High Court that they were willing to offer TDR. In paragraph 15 of the affidavit in reply filed by the Municipal Corporation in Writ Petition No. 3090 of 2017, it was stated by the Municipal Corporation as follows:I say that the respondents Nos.2 to 4 are willing to grant the necessary benefit such as TDR to the rightful owner of the plot of land which is affected by road widening scheme. I say that the petitioner No.1 had contacted the officers at R/North Ward as regarding the issuance of TDR. The petitioner No.1 had attended the meeting in Asst. Municipal Commissioner, R/North office on 11 th November, 2017, when she was informed that she has to contact the office of Chief Engineer (DP) along with relevant papers. I say that the petitioner had agreed and given assurance to the respondent that she will contact the said office for granting her TDR in lieu of land being acquired for the purpose of road widening. I understand that petitioner No.1 has not contacted the office of Chief Engineer (OP) for the reasons best known to her16. After having stated so in their affidavit in reply, the Municipal Corporation ought not to have come up with a special leave petition even in respect of Writ Petition No.3090 of 2017. In fact one of the two substantial questions of law sought to be raised, which we have extracted earlier, also concedes the position taken the Corporation that the respondents 1 to 3 in Special Leave Petition No.18376 of 2018 are entitled to relief. Therefore, we do not know how and why the Corporation is blowing hot and cold17. Insofar as those eleven tenants are concerned, the Corporation agreed both before the High Court and before this Court that four of them are entitled to alternate accommodation. Therefore, the special leave petitions filed in respect of those four have also been disposed of by the order dated 05.12.201818. Therefore, we are left only with seven tenants. In the affidavit of objections filed to the Report of the High Court Legal Services Committee, the Corporation has conceded that three out of those seven tenants are also eligible. Therefore, ultimately the dispute has boiled down only to four tenants19. The High Court has recorded a finding of fact that the Municipal Corporation demolished the superstructures and took possession in a high handed manner. The Legal Services Committee has recorded a finding that the superstructures were in existence from a period prior to 1961. These findings of fact cannot be interfered with by this Court in a special leave petition under Article 136 of the Constitution of India, unless the findings shock our conscience. The findings of the High court are not perverse. Therefore, we find absolutely no grounds to interfere with the judgment of the High Court. | 0 | 3,722 | 582 | ### Instruction:
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High Court within a weeks time from the date of receipt of the order to enable the said Authority to decide and submit a report expeditiously preferably within a period of eight weeks from the date of communication of this order. List the other Special Leave Petitions after Report is received from the Legal Services Authority of the Bombay High Court. 12. Pursuant to the said order, the Secretary of the High Court Legal Services Committee, Bombay filed a report dated 07.02.2019. The important findings recorded in the Report of the High Court Legal Services Committee are (1) that the assessment certificate issued by the Corporation shows the existence of superstructures from a period prior to 1961 (2) that some of the respondents in the special leave petitions were issued with notices under Section 3Z(2) (i) of the Slum Act and that they are eligible for permanent alternative accommodation, as they have produced electricity bill Gumasta Licence etc. from a period prior to 1995 while the cut-off date was only 01.01.2000 and (3) that the other respondents are also eligible for permanent alternative accommodation, as their superstructures were duly assessed in the year 1961 and indisputably, those structures were demolished on 26.10.2017. 13. The Municipal Corporation has filed an affidavit of objections to the Report of the High Court Legal Services Committee. It is claimed in the said affidavit that the respondents did not produce any proof of existence of superstructures prior to the Datum Line of 1962; that the shop owners failed to submit any valid, legal proof; that the land under reference was not declared as a slum under the Slum Act; that the owner of the land Smt. Geeta Angare had not submitted the names of the eligible tenants; that out of 11 structures, the occupants of 4 structures were already found eligible for alternate accommodation; that out of the remaining 7 structures, 3 have been assessed to tax and that, therefore, in addition to the 4 structures declared eligible earlier, 3 more may become eligible for alternative accommodation. 14. Drawing our attention to the various documents and also to the Report of the High Court Legal Services Committee, it was strenuously contended by Mr. Shekhar Naphade that the grant of alternate accommodation cannot be claimed by the respondents as a matter of right, unless they fulfill the parameters fixed by the Municipal Corporation and that the ad-hoc identification of parties for the grant of alternate accommodation without any supporting documents would create huge disparities. The learned Senior Counsel has also assailed the findings of the High Court Legal Services Committee on the ground that those findings were not supported by any documentary evidence. 15. We have carefully considered the contentions of the learned senior counsel for the Municipal Corporation. We should point out at the outset that the legal heirs of the original owner of the land were the petitioners in one writ petition and eleven persons claiming to be the tenants, were the petitioners in the other writ petitions. Insofar as persons claiming to be the owners of the land are concerned, the Municipal Corporation itself had conceded before the High Court that they were willing to offer TDR. In paragraph 15 of the affidavit in reply filed by the Municipal Corporation in Writ Petition No. 3090 of 2017, it was stated by the Municipal Corporation as follows: I say that the respondents Nos.2 to 4 are willing to grant the necessary benefit such as TDR to the rightful owner of the plot of land which is affected by road widening scheme. I say that the petitioner No.1 had contacted the officers at R/North Ward as regarding the issuance of TDR. The petitioner No.1 had attended the meeting in Asst. Municipal Commissioner, R/North office on 11 th November, 2017, when she was informed that she has to contact the office of Chief Engineer (DP) along with relevant papers. I say that the petitioner had agreed and given assurance to the respondent that she will contact the said office for granting her TDR in lieu of land being acquired for the purpose of road widening. I understand that petitioner No.1 has not contacted the office of Chief Engineer (OP) for the reasons best known to her. 16. After having stated so in their affidavit in reply, the Municipal Corporation ought not to have come up with a special leave petition even in respect of Writ Petition No.3090 of 2017. In fact one of the two substantial questions of law sought to be raised, which we have extracted earlier, also concedes the position taken the Corporation that the respondents 1 to 3 in Special Leave Petition No.18376 of 2018 are entitled to relief. Therefore, we do not know how and why the Corporation is blowing hot and cold. 17. Insofar as those eleven tenants are concerned, the Corporation agreed both before the High Court and before this Court that four of them are entitled to alternate accommodation. Therefore, the special leave petitions filed in respect of those four have also been disposed of by the order dated 05.12.2018. 18. Therefore, we are left only with seven tenants. In the affidavit of objections filed to the Report of the High Court Legal Services Committee, the Corporation has conceded that three out of those seven tenants are also eligible. Therefore, ultimately the dispute has boiled down only to four tenants. 19. The High Court has recorded a finding of fact that the Municipal Corporation demolished the superstructures and took possession in a high handed manner. The Legal Services Committee has recorded a finding that the superstructures were in existence from a period prior to 1961. These findings of fact cannot be interfered with by this Court in a special leave petition under Article 136 of the Constitution of India, unless the findings shock our conscience. The findings of the High court are not perverse. Therefore, we find absolutely no grounds to interfere with the judgment of the High Court.
### Response:
0
### Explanation:
We should point out at the outset that the legal heirs of the original owner of the land were the petitioners in one writ petition and eleven persons claiming to be the tenants, were the petitioners in the other writ petitions. Insofar as persons claiming to be the owners of the land are concerned, the Municipal Corporation itself had conceded before the High Court that they were willing to offer TDR. In paragraph 15 of the affidavit in reply filed by the Municipal Corporation in Writ Petition No. 3090 of 2017, it was stated by the Municipal Corporation as follows:I say that the respondents Nos.2 to 4 are willing to grant the necessary benefit such as TDR to the rightful owner of the plot of land which is affected by road widening scheme. I say that the petitioner No.1 had contacted the officers at R/North Ward as regarding the issuance of TDR. The petitioner No.1 had attended the meeting in Asst. Municipal Commissioner, R/North office on 11 th November, 2017, when she was informed that she has to contact the office of Chief Engineer (DP) along with relevant papers. I say that the petitioner had agreed and given assurance to the respondent that she will contact the said office for granting her TDR in lieu of land being acquired for the purpose of road widening. I understand that petitioner No.1 has not contacted the office of Chief Engineer (OP) for the reasons best known to her16. After having stated so in their affidavit in reply, the Municipal Corporation ought not to have come up with a special leave petition even in respect of Writ Petition No.3090 of 2017. In fact one of the two substantial questions of law sought to be raised, which we have extracted earlier, also concedes the position taken the Corporation that the respondents 1 to 3 in Special Leave Petition No.18376 of 2018 are entitled to relief. Therefore, we do not know how and why the Corporation is blowing hot and cold17. Insofar as those eleven tenants are concerned, the Corporation agreed both before the High Court and before this Court that four of them are entitled to alternate accommodation. Therefore, the special leave petitions filed in respect of those four have also been disposed of by the order dated 05.12.201818. Therefore, we are left only with seven tenants. In the affidavit of objections filed to the Report of the High Court Legal Services Committee, the Corporation has conceded that three out of those seven tenants are also eligible. Therefore, ultimately the dispute has boiled down only to four tenants19. The High Court has recorded a finding of fact that the Municipal Corporation demolished the superstructures and took possession in a high handed manner. The Legal Services Committee has recorded a finding that the superstructures were in existence from a period prior to 1961. These findings of fact cannot be interfered with by this Court in a special leave petition under Article 136 of the Constitution of India, unless the findings shock our conscience. The findings of the High court are not perverse. Therefore, we find absolutely no grounds to interfere with the judgment of the High Court.
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Rt. Rev. Bishop S. K. Patro & Ors Vs. State Of Bihar & Ors | acquired by local Christians and in buildings erected from funds collected by them. The institution along with the land on which it was built and the balance of money from the local fund were handed over to the Church Missionary Society in 1856. It is also true that substantial assistance was obtained from the Church Missionary Society, London. But on that account it cannot be said that the School was not established by the local Christians with their own efforts and was not an educational institution established by a minority.19. The Church Missionary Society Higher Secondary School is an educational institution administered by a minority; that was so found by the High Court and is not now in controversy.20. The High Court held that the primary school started in the year 1854 was started by the Church Missionary Society,London, and such a Society cannot be said to be a citizen of India and that in any event the persons who constituted the Society were aliens and on that account it cannot be said that the Church Missionary Society Higher Secondary School is an educational institution established by a minority. It is unnecessary to dilate upon these matters at length, for, in our judgement, the conclusion that the School was established not by the local Christians of Bhagalpur, but by the Church Missionary Society, London, is not justified on the evidence. The extracts from the Record Book clearly show that the local residents of Bhagalpur had taken a leading role in establishing and maintaining the school. Assistance was undoubtedly obtained from other bodies including the Church Missionary Society, London. But the School was set up by the Christian Missionaries and the local residents of Bhagalpur with the aid of funds part of which was contributed by them.21. It is unnecessary to enter upon an enquiry whether all the persons who took part in establishing the School in 1854 were "Indian Citizens". Prior to the enactment of the Constitution there was no settled concept of Indian citizenship; and it cannot be said that Christian Missionaries who had settled in India and the local Christian residents of Bhagalpur did not form a minority community. It is true that the minority competent to claim the protection of Article 30 (1) and on that account the privilege of establishing and maintaining educational institutions of its choice must be a minority of persons residing in India. It does not confer upon foreigners not resident in India the right to set up educational institutions of their choice. Persons setting up educational institutions must be resident in India and they must form a well-defined religious or linguistic minority. It is not however predicated that protection of the right guaranteed under Article 30 may be availed of only in respect of an institution established before the Constitution by persons born and resident in British India.22. It is necessary to bear in mind the difference in the phraseology used in Articles 29 and 30 of the Constitution. By Article 29 (1) any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same, and Cl. (2) guarantees that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.The protection of the rights under Article 29 may be claimed only be Indian citizens. Art. 30 guarantees the right of minorities to establish and administer educational institutions: the article does not expressly refer to citizenship as a qualification for the members of the minorities.23. In Rev. Father W. Proost v. State of Bihar, W. P. No. 1 of 1968, D/- 13-9-1968 = (AIR 1969 SC 465 ), this Court observed:"In our opinion the width of Article 30 (1) cannot be cut down by introducing in it considerations on which Article 29 (1) is based. The latter article is a general protection which is given to minorities to conserve their language, script or culture. * * * The two articles created two separate rights, although it is possible that they may meet in a given case."The Court then observed, after referring to the judgment in Rev. Sidhajbhai Sabhai v. State of Bombay, (1963) 3 SCR 837 = (AIR 1963 SC 540 ) that:"............. the language of Article 30 (1) is wide and must receive full meaning. We are dealing with protection of minorities and attempts to whittle down the protection cannot be allowed. We need not enlarge the protection but we may not reduce a protection naturally flowing from the words. Here the protection clearly flows from the words and there is nothing on the basis of which aid can be sought from Article 29 (1)."The fact that funds were obtained from the United Kingdom for assisting in setting up and developing the School or that the management of the institution was carried on by some persons who may not have been born in India is not a ground for denying the protection of Art. 30 (1).24. We are also unable to agree with the High Court that before any protection can be claimed under Article 30 (1) in respect of the Church Missionary Society Higher Secondary School it was required to be proved that all persons or a majority of them who established the institution were "Indian citizens" in the year 1854. There being no Indian citizenship in the year 1854 independently of the citizenship of the British Empire, to incorporate in the interpretation of Article 30 in respect of an institution established by a minority the condition that it must in addition be proved to have been established by persons who would, if the institution had been set up after the Constitution, have claimed Indian citizenship, is to whittle down the protection of Article 30 in a manner not warranted by the provisions of the Constitution.25. The | 1[ds]It appears from this correspondence and the resolutions and the discussions at the meetings that a permanent home for the Boys School was set up in 1854 on property acquired by local Christians and in buildings erected from funds collected by them. The institution along with the land on which it was built and the balance of money from the local fund were handed over to the Church Missionary Society in 1856. It is also true that substantial assistance was obtained from the Church Missionary Society, London. But on that account it cannot be said that the School was not established by the local Christians with their own efforts and was not an educational institution established by a minority.The Church Missionary Society Higher Secondary School is an educational institution administered by a minority; that was so found by the High Court and is not now in controversy.The High Court held that the primary school started in the year 1854 was started by the Church Missionary Society,London, and such a Society cannot be said to be a citizen of India and that in any event the persons who constituted the Society were aliens and on that account it cannot be said that the Church Missionary Society Higher Secondary School is an educational institution established by a minority. It is unnecessary to dilate upon these matters at length, for, in our judgement, the conclusion that the School was established not by the local Christians of Bhagalpur, but by the Church Missionary Society, London, is not justified on the evidence. The extracts from the Record Book clearly show that the local residents of Bhagalpur had taken a leading role in establishing and maintaining the school. Assistance was undoubtedly obtained from other bodies including the Church Missionary Society, London. But the School was set up by the Christian Missionaries and the local residents of Bhagalpur with the aid of funds part of which was contributed by them.It is unnecessary to enter upon an enquiry whether all the persons who took part in establishing the School in 1854 were "Indian Citizens". Prior to the enactment of the Constitution there was no settled concept of Indian citizenship; and it cannot be said that Christian Missionaries who had settled in India and the local Christian residents of Bhagalpur did not form a minority community. It is true that the minority competent to claim the protection of Article 30 (1) and on that account the privilege of establishing and maintaining educational institutions of its choice must be a minority of persons residing in India. It does not confer upon foreigners not resident in India the right to set up educational institutions of their choice. Persons setting up educational institutions must be resident in India and they must form a well-defined religious or linguistic minority. It is not however predicated that protection of the right guaranteed under Article 30 may be availed of only in respect of an institution established before the Constitution by persons born and resident in British India.It is necessary to bear in mind the difference in the phraseology used in Articles 29 and 30 of the Constitution. By Article 29 (1) any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same, and Cl. (2) guarantees that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.The protection of the rights under Article 29 may be claimed only be Indian citizens. Art. 30 guarantees the right of minorities to establish and administer educational institutions: the article does not expressly refer to citizenship as a qualification for the members of theare also unable to agree with the High Court that before any protection can be claimed under Article 30 (1) in respect of the Church Missionary Society Higher Secondary School it was required to be proved that all persons or a majority of them who established the institution were "Indian citizens" in the year 1854. There being no Indian citizenship in the year 1854 independently of the citizenship of the British Empire, to incorporate in the interpretation of Article 30 in respect of an institution established by a minority the condition that it must in addition be proved to have been established by persons who would, if the institution had been set up after the Constitution, have claimed Indian citizenship, is to whittle down the protection of Article 30 in a manner not warranted by the provisions of the Constitution. | 1 | 3,408 | 840 | ### 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:
acquired by local Christians and in buildings erected from funds collected by them. The institution along with the land on which it was built and the balance of money from the local fund were handed over to the Church Missionary Society in 1856. It is also true that substantial assistance was obtained from the Church Missionary Society, London. But on that account it cannot be said that the School was not established by the local Christians with their own efforts and was not an educational institution established by a minority.19. The Church Missionary Society Higher Secondary School is an educational institution administered by a minority; that was so found by the High Court and is not now in controversy.20. The High Court held that the primary school started in the year 1854 was started by the Church Missionary Society,London, and such a Society cannot be said to be a citizen of India and that in any event the persons who constituted the Society were aliens and on that account it cannot be said that the Church Missionary Society Higher Secondary School is an educational institution established by a minority. It is unnecessary to dilate upon these matters at length, for, in our judgement, the conclusion that the School was established not by the local Christians of Bhagalpur, but by the Church Missionary Society, London, is not justified on the evidence. The extracts from the Record Book clearly show that the local residents of Bhagalpur had taken a leading role in establishing and maintaining the school. Assistance was undoubtedly obtained from other bodies including the Church Missionary Society, London. But the School was set up by the Christian Missionaries and the local residents of Bhagalpur with the aid of funds part of which was contributed by them.21. It is unnecessary to enter upon an enquiry whether all the persons who took part in establishing the School in 1854 were "Indian Citizens". Prior to the enactment of the Constitution there was no settled concept of Indian citizenship; and it cannot be said that Christian Missionaries who had settled in India and the local Christian residents of Bhagalpur did not form a minority community. It is true that the minority competent to claim the protection of Article 30 (1) and on that account the privilege of establishing and maintaining educational institutions of its choice must be a minority of persons residing in India. It does not confer upon foreigners not resident in India the right to set up educational institutions of their choice. Persons setting up educational institutions must be resident in India and they must form a well-defined religious or linguistic minority. It is not however predicated that protection of the right guaranteed under Article 30 may be availed of only in respect of an institution established before the Constitution by persons born and resident in British India.22. It is necessary to bear in mind the difference in the phraseology used in Articles 29 and 30 of the Constitution. By Article 29 (1) any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same, and Cl. (2) guarantees that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.The protection of the rights under Article 29 may be claimed only be Indian citizens. Art. 30 guarantees the right of minorities to establish and administer educational institutions: the article does not expressly refer to citizenship as a qualification for the members of the minorities.23. In Rev. Father W. Proost v. State of Bihar, W. P. No. 1 of 1968, D/- 13-9-1968 = (AIR 1969 SC 465 ), this Court observed:"In our opinion the width of Article 30 (1) cannot be cut down by introducing in it considerations on which Article 29 (1) is based. The latter article is a general protection which is given to minorities to conserve their language, script or culture. * * * The two articles created two separate rights, although it is possible that they may meet in a given case."The Court then observed, after referring to the judgment in Rev. Sidhajbhai Sabhai v. State of Bombay, (1963) 3 SCR 837 = (AIR 1963 SC 540 ) that:"............. the language of Article 30 (1) is wide and must receive full meaning. We are dealing with protection of minorities and attempts to whittle down the protection cannot be allowed. We need not enlarge the protection but we may not reduce a protection naturally flowing from the words. Here the protection clearly flows from the words and there is nothing on the basis of which aid can be sought from Article 29 (1)."The fact that funds were obtained from the United Kingdom for assisting in setting up and developing the School or that the management of the institution was carried on by some persons who may not have been born in India is not a ground for denying the protection of Art. 30 (1).24. We are also unable to agree with the High Court that before any protection can be claimed under Article 30 (1) in respect of the Church Missionary Society Higher Secondary School it was required to be proved that all persons or a majority of them who established the institution were "Indian citizens" in the year 1854. There being no Indian citizenship in the year 1854 independently of the citizenship of the British Empire, to incorporate in the interpretation of Article 30 in respect of an institution established by a minority the condition that it must in addition be proved to have been established by persons who would, if the institution had been set up after the Constitution, have claimed Indian citizenship, is to whittle down the protection of Article 30 in a manner not warranted by the provisions of the Constitution.25. The
### Response:
1
### Explanation:
It appears from this correspondence and the resolutions and the discussions at the meetings that a permanent home for the Boys School was set up in 1854 on property acquired by local Christians and in buildings erected from funds collected by them. The institution along with the land on which it was built and the balance of money from the local fund were handed over to the Church Missionary Society in 1856. It is also true that substantial assistance was obtained from the Church Missionary Society, London. But on that account it cannot be said that the School was not established by the local Christians with their own efforts and was not an educational institution established by a minority.The Church Missionary Society Higher Secondary School is an educational institution administered by a minority; that was so found by the High Court and is not now in controversy.The High Court held that the primary school started in the year 1854 was started by the Church Missionary Society,London, and such a Society cannot be said to be a citizen of India and that in any event the persons who constituted the Society were aliens and on that account it cannot be said that the Church Missionary Society Higher Secondary School is an educational institution established by a minority. It is unnecessary to dilate upon these matters at length, for, in our judgement, the conclusion that the School was established not by the local Christians of Bhagalpur, but by the Church Missionary Society, London, is not justified on the evidence. The extracts from the Record Book clearly show that the local residents of Bhagalpur had taken a leading role in establishing and maintaining the school. Assistance was undoubtedly obtained from other bodies including the Church Missionary Society, London. But the School was set up by the Christian Missionaries and the local residents of Bhagalpur with the aid of funds part of which was contributed by them.It is unnecessary to enter upon an enquiry whether all the persons who took part in establishing the School in 1854 were "Indian Citizens". Prior to the enactment of the Constitution there was no settled concept of Indian citizenship; and it cannot be said that Christian Missionaries who had settled in India and the local Christian residents of Bhagalpur did not form a minority community. It is true that the minority competent to claim the protection of Article 30 (1) and on that account the privilege of establishing and maintaining educational institutions of its choice must be a minority of persons residing in India. It does not confer upon foreigners not resident in India the right to set up educational institutions of their choice. Persons setting up educational institutions must be resident in India and they must form a well-defined religious or linguistic minority. It is not however predicated that protection of the right guaranteed under Article 30 may be availed of only in respect of an institution established before the Constitution by persons born and resident in British India.It is necessary to bear in mind the difference in the phraseology used in Articles 29 and 30 of the Constitution. By Article 29 (1) any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same, and Cl. (2) guarantees that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.The protection of the rights under Article 29 may be claimed only be Indian citizens. Art. 30 guarantees the right of minorities to establish and administer educational institutions: the article does not expressly refer to citizenship as a qualification for the members of theare also unable to agree with the High Court that before any protection can be claimed under Article 30 (1) in respect of the Church Missionary Society Higher Secondary School it was required to be proved that all persons or a majority of them who established the institution were "Indian citizens" in the year 1854. There being no Indian citizenship in the year 1854 independently of the citizenship of the British Empire, to incorporate in the interpretation of Article 30 in respect of an institution established by a minority the condition that it must in addition be proved to have been established by persons who would, if the institution had been set up after the Constitution, have claimed Indian citizenship, is to whittle down the protection of Article 30 in a manner not warranted by the provisions of the Constitution.
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CHAIRMAN-CUM-MANAGING DIRECTOR ONGC LTD. Vs. CONSUMER EDUCATION RESEARCH SOCIETY | employee shall be calculate his salary and the rate will be as given hereunder depending on his age on the effective of the Scheme for employees on the rolls ONGC as on 01.04.1990 and on the date Joining ONGC for new entrants. The rate of contribution fixed at the time of entry will remain constant. The following rates of the contribution are payable in the various age group: chart 5. MANAGING THE SCHEME (a) The Scheme shall be run by a Trust consisting of trustees to be nominated by the Chairman ONGC and representative as may nominated on the board by CWC of ASTO. The Trust would make investment plan of the fund as per pattern of Rule 67 (2) of Income Tax Rule 1961 and would purchase annuity from LIC for the beneficiaries under the Scheme. 6. Scheme is based on voluntary contribution by the member employees. No contribution will be made by ONGC towards this Scheme except Rs.100 p.a. No. other financial liability on account of this Scheme will devolve on ONGC or the Govt. of India. It is not necessary to deal with other facts. The case of the claimants was that due to delay in sending their claims to the LIC, they suffered a loss. This averment is denied by the appellants but, in our view, that is not very relevant. The Consumer Fora held that the employees were consumers of the ONGC and therefore passed orders awarding various amounts and costs in favour of the claimants and hence the ONGC is liable to pay the same. 6. Shri Venugopal has raised various pleas before us. The first is that in terms of the definition of consumer in the Consumer Protection Act, 1986 (for short ‘the Act), the first essential ingredient is payment of consideration for availing services. The second contention is that rendering of service free of charge under a contract of personal service is not included in the definition of service under the Act. We may refer to Section 2(d) of the Act, which reads as follows:¬(d) consumer means any person who,— (i) xxx xxx xxx (ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose; We may also refer to Section 2(o) of the Act, which reads as follows:¬(o) service means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service; Shri Venugopal has relied upon the judgment of this Court in the case of Jagmittar Sain Bhagat & Ors. vs. Director, Health Services, Haryana & Ors. 2013(10) SCC 136 in this regard. On the other hand, learned counsel for the respondents has placed reliance on the judgment of this Court in Regional Provident Fund Commissioner v. Shiv Kumar Joshi 2000(1) SCC 98 and Regional Provident Fund Commissioner v. Bhavani (2008) 7 SCC 111 . 7. In our opinion, it is not necessary to answer all the issues raised by Shri Venugopal since, in our opinion, there is virtually no privity of contract for providing service between the ONGC and the claimants. From a perusal of the letter dated 18.09.1991 and the Scheme, relevant portion of which has been quoted above, it is apparent that contributors to the Scheme were the employees of ONGC. Whereas the employer was only making a token contribution of Rs.100 per annum, the Scheme was also voluntary and optional for the employees who were in service from the effective date i.e. 01.04.1990. It is not disputed that all the claimants were in service before the effective date. The Scheme envisages that every employee shall contribute to the fund at rates specified therein. The younger the employee, the percentage deducted from his salary is less and this rises progressively as the age increases. It has obviously been done to ensure that the contribution of the employee is equal i.e. those who have less years of remaining service will contribute at a higher rate and those who have more years of remaining service will contribute at a lower rate. The most important aspect is that the Scheme is managed and run by a Trust and not by the ONGC. The trustees of the Trust are nominated by the Chairman of the ONGC and representatives may be nominated to the Board of Trustees by the Central Working Committee (CWC) of Association of Scientific and Technical Officers. We have been informed at the Bar that 7 trustees are nominated by the Chairman of the ONGC and 6 by the CWC. Be that as it may, it is the Trust which manages the fund. Therefore, without going into the question as to whether any amount is being paid by the employees for contribution to the services rendered by the Trust, it is apparent that the service, if any, is being rendered by the Trust and not by the ONGC. Therefore, we have no hesitation in coming to the conclusion that there is no relationship of consumer and service provider between the claimants and the ONGC. We make it clear that we have not gone into the other questions since, in view of the aforesaid decision, it is not necessary to decide the other questions raised by Shri Venugopal. | 1[ds]7. In our opinion, it is not necessary to answer all the issues raised by Shri Venugopal since, in our opinion, there is virtually no privity of contract for providing service between the ONGC and the claimants. From a perusal of the letter dated 18.09.1991 and the Scheme, relevant portion of which has been quoted above, it is apparent that contributors to the Scheme were the employees of ONGC. Whereas the employer was only making a token contribution of Rs.100 per annum, the Scheme was also voluntary and optional for the employees who were in service from the effective date i.e. 01.04.1990. It is not disputed that all the claimants were in service before the effective date. The Scheme envisages that every employee shall contribute to the fund at rates specified therein. The younger the employee, the percentage deducted from his salary is less and this rises progressively as the age increases. It has obviously been done to ensure that the contribution of the employee is equal i.e. those who have less years of remaining service will contribute at a higher rate and those who have more years of remaining service will contribute at a lower rate. The most important aspect is that the Scheme is managed and run by a Trust and not by the ONGC. The trustees of the Trust are nominated by the Chairman of the ONGC and representatives may be nominated to the Board of Trustees by the Central Working Committee (CWC) of Association of Scientific and Technical Officers. We have been informed at the Bar that 7 trustees are nominated by the Chairman of the ONGC and 6 by the CWC. Be that as it may, it is the Trust which manages the fund. Therefore, without going into the question as to whether any amount is being paid by the employees for contribution to the services rendered by the Trust, it is apparent that the service, if any, is being rendered by the Trust and not by the ONGC. Therefore, we have no hesitation in coming to the conclusion that there is no relationship of consumer and service provider between the claimants and the ONGC. We make it clear that we have not gone into the other questions since, in view of the aforesaid decision, it is not necessary to decide the other questions raised by Shri Venugopal. | 1 | 1,499 | 431 | ### 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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employee shall be calculate his salary and the rate will be as given hereunder depending on his age on the effective of the Scheme for employees on the rolls ONGC as on 01.04.1990 and on the date Joining ONGC for new entrants. The rate of contribution fixed at the time of entry will remain constant. The following rates of the contribution are payable in the various age group: chart 5. MANAGING THE SCHEME (a) The Scheme shall be run by a Trust consisting of trustees to be nominated by the Chairman ONGC and representative as may nominated on the board by CWC of ASTO. The Trust would make investment plan of the fund as per pattern of Rule 67 (2) of Income Tax Rule 1961 and would purchase annuity from LIC for the beneficiaries under the Scheme. 6. Scheme is based on voluntary contribution by the member employees. No contribution will be made by ONGC towards this Scheme except Rs.100 p.a. No. other financial liability on account of this Scheme will devolve on ONGC or the Govt. of India. It is not necessary to deal with other facts. The case of the claimants was that due to delay in sending their claims to the LIC, they suffered a loss. This averment is denied by the appellants but, in our view, that is not very relevant. The Consumer Fora held that the employees were consumers of the ONGC and therefore passed orders awarding various amounts and costs in favour of the claimants and hence the ONGC is liable to pay the same. 6. Shri Venugopal has raised various pleas before us. The first is that in terms of the definition of consumer in the Consumer Protection Act, 1986 (for short ‘the Act), the first essential ingredient is payment of consideration for availing services. The second contention is that rendering of service free of charge under a contract of personal service is not included in the definition of service under the Act. We may refer to Section 2(d) of the Act, which reads as follows:¬(d) consumer means any person who,— (i) xxx xxx xxx (ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose; We may also refer to Section 2(o) of the Act, which reads as follows:¬(o) service means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service; Shri Venugopal has relied upon the judgment of this Court in the case of Jagmittar Sain Bhagat & Ors. vs. Director, Health Services, Haryana & Ors. 2013(10) SCC 136 in this regard. On the other hand, learned counsel for the respondents has placed reliance on the judgment of this Court in Regional Provident Fund Commissioner v. Shiv Kumar Joshi 2000(1) SCC 98 and Regional Provident Fund Commissioner v. Bhavani (2008) 7 SCC 111 . 7. In our opinion, it is not necessary to answer all the issues raised by Shri Venugopal since, in our opinion, there is virtually no privity of contract for providing service between the ONGC and the claimants. From a perusal of the letter dated 18.09.1991 and the Scheme, relevant portion of which has been quoted above, it is apparent that contributors to the Scheme were the employees of ONGC. Whereas the employer was only making a token contribution of Rs.100 per annum, the Scheme was also voluntary and optional for the employees who were in service from the effective date i.e. 01.04.1990. It is not disputed that all the claimants were in service before the effective date. The Scheme envisages that every employee shall contribute to the fund at rates specified therein. The younger the employee, the percentage deducted from his salary is less and this rises progressively as the age increases. It has obviously been done to ensure that the contribution of the employee is equal i.e. those who have less years of remaining service will contribute at a higher rate and those who have more years of remaining service will contribute at a lower rate. The most important aspect is that the Scheme is managed and run by a Trust and not by the ONGC. The trustees of the Trust are nominated by the Chairman of the ONGC and representatives may be nominated to the Board of Trustees by the Central Working Committee (CWC) of Association of Scientific and Technical Officers. We have been informed at the Bar that 7 trustees are nominated by the Chairman of the ONGC and 6 by the CWC. Be that as it may, it is the Trust which manages the fund. Therefore, without going into the question as to whether any amount is being paid by the employees for contribution to the services rendered by the Trust, it is apparent that the service, if any, is being rendered by the Trust and not by the ONGC. Therefore, we have no hesitation in coming to the conclusion that there is no relationship of consumer and service provider between the claimants and the ONGC. We make it clear that we have not gone into the other questions since, in view of the aforesaid decision, it is not necessary to decide the other questions raised by Shri Venugopal.
### Response:
1
### Explanation:
7. In our opinion, it is not necessary to answer all the issues raised by Shri Venugopal since, in our opinion, there is virtually no privity of contract for providing service between the ONGC and the claimants. From a perusal of the letter dated 18.09.1991 and the Scheme, relevant portion of which has been quoted above, it is apparent that contributors to the Scheme were the employees of ONGC. Whereas the employer was only making a token contribution of Rs.100 per annum, the Scheme was also voluntary and optional for the employees who were in service from the effective date i.e. 01.04.1990. It is not disputed that all the claimants were in service before the effective date. The Scheme envisages that every employee shall contribute to the fund at rates specified therein. The younger the employee, the percentage deducted from his salary is less and this rises progressively as the age increases. It has obviously been done to ensure that the contribution of the employee is equal i.e. those who have less years of remaining service will contribute at a higher rate and those who have more years of remaining service will contribute at a lower rate. The most important aspect is that the Scheme is managed and run by a Trust and not by the ONGC. The trustees of the Trust are nominated by the Chairman of the ONGC and representatives may be nominated to the Board of Trustees by the Central Working Committee (CWC) of Association of Scientific and Technical Officers. We have been informed at the Bar that 7 trustees are nominated by the Chairman of the ONGC and 6 by the CWC. Be that as it may, it is the Trust which manages the fund. Therefore, without going into the question as to whether any amount is being paid by the employees for contribution to the services rendered by the Trust, it is apparent that the service, if any, is being rendered by the Trust and not by the ONGC. Therefore, we have no hesitation in coming to the conclusion that there is no relationship of consumer and service provider between the claimants and the ONGC. We make it clear that we have not gone into the other questions since, in view of the aforesaid decision, it is not necessary to decide the other questions raised by Shri Venugopal.
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ASHISH SETH Vs. SUMIT MITTAL AND OTHERS | agreed between the parties and as prayed, the MoS dated 04.05.2015 became a part of the order and this Court directed the parties to adhere to the terms and conditions of the settlement and the undertakings given therein. This Court specifically further observed that every facet of it shall tantamount to an order of this Court and in case of failure the parties shall be at liberty to move this Court for an appropriate direction. Thus, as per the MoS and even as per the order passed by this Court dated 05.05.2015, all the parties to the MoS shall have to comply with and/or fulfill their respective obligations as mentioned in the MoS dated 04.05.2015. As observed hereinabove, the disputes were commercial disputes and therefore all the parties to the disputes agreed to resolve all their disputes, which culminated into the MoS and thereafter the order passed by this Court. 9. The entire object and purpose of entering into the settlement was to resolve all the disputes between the parties. Therefore, it is the duty of the Court that the settlement entered into between the parties and the consent order passed by this Court should be given effect to in its letter and spirit. All the parties to the consent terms are required to fully comply with the terms of settlement/consent terms and the consent order. One party cannot be permitted to say that that portion of the settlement which is in their favour be executed and/or complied with and not the other terms of the settlement/consent terms/consent order. 9.1 From the facts narrated hereinabove and even otherwise considering the relevant clauses of the MoS and the obligations to be fulfilled by the respective parties to the MoS, it appears that Seth Group have fully complied with their obligations, except deposit of the total amount of Rs.25.27 crores - payment to DTCP towards initial liability of Rs.59.05 crores of TFIPL. It appears that Seth Group have already paid Rs.9.40 crores against the total libaiility of Rs.25.27 crores towards EDC liability against the total liability of Rs.59.05 crores of TFIPL as per Clause 1.2. It appears that the balance amount is not deposited by the Seth Group as the Mittal Group have not fulfilled their obligations under the MoS. It is stated at the bar that the Seth Group is always ready and willing to fulfill their obligations in terms of the MoS, i.e. their liability as per Clause 1.2, subject to Mittal Group fulfill its obligations. From the material on record, it appears that the Mittal Group have not fulfilled their obligations as per Clause 1.2, Clause 5.3 and Clause 8. Neither the Mittal Group nor TFIPL have deposited the balance amount to be paid towards EDC liability of Rs.59.05 crores (deducting Rs.25.27 crores to be paid by the Seth Group as per Clause 1.2). It is the case on behalf of the Mittal Group that it is the liability of the TIDCO and not the Mittal Group and in the MoS there is no specific term and the obligation that the said amount is to be paid by the Mittal Group. It is required to be noted that all the terms and conditions/obligations of the Seth Group, Mittal Group and TFIPL are required to be read conjointly. The license Nos. 34, 35 and 36 of 2007 are required to be transferred in favour of Seth Group. It appears that TFIPL acquired some land at Sector 70 and some 48.03 acres of land at Sector 89, Faridabad. TFIPL also availed licenses Nos. 34, 35 and 36 from the competent authorities in the year 2007 in respect of land bearing at Sector 89 with an intent to develop the Sector 89 land. Subsequently, however , both the parties – Seth Group and Mittal Group agreed that it would be the best that the development of the said land be divided and carried out separately and thereupon the development rights in the Sector 89 land parcel of 48.03 acres of land belonging to TFIPL was sold in the manner mentioned as under: table The liability of Rs.59.05 crores was with respect to the entire land – 48.03 acres at Sector 89, Faridabad. Therefore, the liability of the Seth Group would be with respect to their share out of 48.03 acres which, as agreed between the parties, would come to Rs.25.27 crores and therefore the balance is naturally required to be paid by Mittal Group/TFIPL. Unless and until the entire amount is deposited with the DTCP towards EDC, the aforesaid licenses cannot be renewed and after renewal they are required to be bifurcated and transferred. As the Mittal Group has refused to deposit the balance amount of EDC (after deducting Rs.25.27 crores which is the liability of Seth Group as per Clause 1.2), the licenses are not being renewed thereafter. If the contention and the submission on behalf of the Mittal Group is accepted, in that case, the entire MoS would be unworkable and the purpose and object of the MoS to resolve all the disputes would be frustrated. As the Mittal Group has not fulfilled its obligations it appears that the Seth Group has not deposited the balance amount of EDC liability. At this stage, it is required to be noted that as per Clause 5.8 Mittal Group shall not resign from the Board of Directors of TFIPL and shall not transfer majority/controlling shareholding in TFIPL till renewal of licenses. As per the case of Seth Group, Mittal Group have retired from the Directorship of TFIPL and the balance sheet since then is being signed by the proxies. 9.2 As observed hereinabove, as per the MoS dated 04.05.2015 and even as per the order passed by this Court 05.05.2015, all the parties to the MoS are bound to fulfill their respective obligations. As observed hereinabove, Seth Group have fulfilled their obligations, except the payment of DTCP i.e. Rs.25.27 crores as per Clause 1.2 of the MoS (except Rs.9.49 crores which is paid). | 0[ds]8.1 At the outset, it is required to be noted that as such the present proceedings are filed by the respective parties to the MoS dated 04.05.2015, which subsequently was made the order passed by this Court dated 05.05.2015 to initiate appropriate proceedings against each other under the provisions of the Contempt of Courts Act. It is not in dispute that all were parties to the MoS/consent order9. The entire object and purpose of entering into the settlement was to resolve all the disputes between the parties. Therefore, it is the duty of the Court that the settlement entered into between the parties and the consent order passed by this Court should be given effect to in its letter and spirit. All the parties to the consent terms are required to fully comply with the terms of settlement/consent terms and the consent order. One party cannot be permitted to say that that portion of the settlement which is in their favour be executed and/or complied with and not the other terms of the settlement/consent terms/consent order9.1 From the facts narrated hereinabove and even otherwise considering the relevant clauses of the MoS and the obligations to be fulfilled by the respective parties to the MoS, it appears that Seth Group have fully complied with their obligations, except deposit of the total amount of Rs.25.27 crores - payment to DTCP towards initial liability of Rs.59.05 crores of TFIPL. It appears that Seth Group have already paid Rs.9.40 crores against the total libaiility of Rs.25.27 crores towards EDC liability against the total liability of Rs.59.05 crores of TFIPL as per Clause 1.2. It appears that the balance amount is not deposited by the Seth Group as the Mittal Group have not fulfilled their obligations under the MoS. It is stated at the bar that the Seth Group is always ready and willing to fulfill their obligations in terms of the MoS, i.e. their liability as per Clause 1.2, subject to Mittal Group fulfill its obligations. From the material on record, it appears that the Mittal Group have not fulfilled their obligations as per Clause 1.2, Clause 5.3 and Clause 8. Neither the Mittal Group nor TFIPL have deposited the balance amount to be paid towards EDC liability of Rs.59.05 crores (deducting Rs.25.27 crores to be paid by the Seth Group as per Clause 1.2). It is the case on behalf of the Mittal Group that it is the liability of the TIDCO and not the Mittal Group and in the MoS there is no specific term and the obligation that the said amount is to be paid by the Mittal Group. It is required to be noted that all the terms and conditions/obligations of the Seth Group, Mittal Group and TFIPL are required to be read conjointly. The license Nos. 34, 35 and 36 of 2007 are required to be transferred in favour of Seth Group. It appears that TFIPL acquired some land at Sector 70 and some 48.03 acres of land at Sector 89, Faridabad. TFIPL also availed licenses Nos. 34, 35 and 36 from the competent authorities in the year 2007 in respect of land bearing at Sector 89 with an intent to develop the Sector 89 land. Subsequently, however , both the parties – Seth Group and Mittal Group agreed that it would be the best that the development of the said land be divided and carried out separately and thereupon the development rights in the Sector 89 land parcel of 48.03 acres of land belonging to TFIPL was sold in the manner mentioned as under:The liability of Rs.59.05 crores was with respect to the entire land – 48.03 acres at Sector 89, Faridabad. Therefore, the liability of the Seth Group would be with respect to their share out of 48.03 acres which, as agreed between the parties, would come to Rs.25.27 crores and therefore the balance is naturally required to be paid by Mittal Group/TFIPL. Unless and until the entire amount is deposited with the DTCP towards EDC, the aforesaid licenses cannot be renewed and after renewal they are required to be bifurcated and transferred. As the Mittal Group has refused to deposit the balance amount of EDC (after deducting Rs.25.27 crores which is the liability of Seth Group as per Clause 1.2), the licenses are not being renewed thereafter. If the contention and the submission on behalf of the Mittal Group is accepted, in that case, the entire MoS would be unworkable and the purpose and object of the MoS to resolve all the disputes would be frustrated. As the Mittal Group has not fulfilled its obligations it appears that the Seth Group has not deposited the balance amount of EDC liability. At this stage, it is required to be noted that as per Clause 5.8 Mittal Group shall not resign from the Board of Directors of TFIPL and shall not transfer majority/controlling shareholding in TFIPL till renewal of licenses. As per the case of Seth Group, Mittal Group have retired from the Directorship of TFIPL and the balance sheet since then is being signed by the proxies9.2 As observed hereinabove, as per the MoS dated 04.05.2015 and even as per the order passed by this Court 05.05.2015, all the parties to the MoS are bound to fulfill their respective obligations. As observed hereinabove, Seth Group have fulfilled their obligations, except the payment of DTCP i.e. Rs.25.27 crores as per Clause 1.2 of the MoS (except Rs.9.49 crores which is paid). | 0 | 8,154 | 984 | ### 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:
agreed between the parties and as prayed, the MoS dated 04.05.2015 became a part of the order and this Court directed the parties to adhere to the terms and conditions of the settlement and the undertakings given therein. This Court specifically further observed that every facet of it shall tantamount to an order of this Court and in case of failure the parties shall be at liberty to move this Court for an appropriate direction. Thus, as per the MoS and even as per the order passed by this Court dated 05.05.2015, all the parties to the MoS shall have to comply with and/or fulfill their respective obligations as mentioned in the MoS dated 04.05.2015. As observed hereinabove, the disputes were commercial disputes and therefore all the parties to the disputes agreed to resolve all their disputes, which culminated into the MoS and thereafter the order passed by this Court. 9. The entire object and purpose of entering into the settlement was to resolve all the disputes between the parties. Therefore, it is the duty of the Court that the settlement entered into between the parties and the consent order passed by this Court should be given effect to in its letter and spirit. All the parties to the consent terms are required to fully comply with the terms of settlement/consent terms and the consent order. One party cannot be permitted to say that that portion of the settlement which is in their favour be executed and/or complied with and not the other terms of the settlement/consent terms/consent order. 9.1 From the facts narrated hereinabove and even otherwise considering the relevant clauses of the MoS and the obligations to be fulfilled by the respective parties to the MoS, it appears that Seth Group have fully complied with their obligations, except deposit of the total amount of Rs.25.27 crores - payment to DTCP towards initial liability of Rs.59.05 crores of TFIPL. It appears that Seth Group have already paid Rs.9.40 crores against the total libaiility of Rs.25.27 crores towards EDC liability against the total liability of Rs.59.05 crores of TFIPL as per Clause 1.2. It appears that the balance amount is not deposited by the Seth Group as the Mittal Group have not fulfilled their obligations under the MoS. It is stated at the bar that the Seth Group is always ready and willing to fulfill their obligations in terms of the MoS, i.e. their liability as per Clause 1.2, subject to Mittal Group fulfill its obligations. From the material on record, it appears that the Mittal Group have not fulfilled their obligations as per Clause 1.2, Clause 5.3 and Clause 8. Neither the Mittal Group nor TFIPL have deposited the balance amount to be paid towards EDC liability of Rs.59.05 crores (deducting Rs.25.27 crores to be paid by the Seth Group as per Clause 1.2). It is the case on behalf of the Mittal Group that it is the liability of the TIDCO and not the Mittal Group and in the MoS there is no specific term and the obligation that the said amount is to be paid by the Mittal Group. It is required to be noted that all the terms and conditions/obligations of the Seth Group, Mittal Group and TFIPL are required to be read conjointly. The license Nos. 34, 35 and 36 of 2007 are required to be transferred in favour of Seth Group. It appears that TFIPL acquired some land at Sector 70 and some 48.03 acres of land at Sector 89, Faridabad. TFIPL also availed licenses Nos. 34, 35 and 36 from the competent authorities in the year 2007 in respect of land bearing at Sector 89 with an intent to develop the Sector 89 land. Subsequently, however , both the parties – Seth Group and Mittal Group agreed that it would be the best that the development of the said land be divided and carried out separately and thereupon the development rights in the Sector 89 land parcel of 48.03 acres of land belonging to TFIPL was sold in the manner mentioned as under: table The liability of Rs.59.05 crores was with respect to the entire land – 48.03 acres at Sector 89, Faridabad. Therefore, the liability of the Seth Group would be with respect to their share out of 48.03 acres which, as agreed between the parties, would come to Rs.25.27 crores and therefore the balance is naturally required to be paid by Mittal Group/TFIPL. Unless and until the entire amount is deposited with the DTCP towards EDC, the aforesaid licenses cannot be renewed and after renewal they are required to be bifurcated and transferred. As the Mittal Group has refused to deposit the balance amount of EDC (after deducting Rs.25.27 crores which is the liability of Seth Group as per Clause 1.2), the licenses are not being renewed thereafter. If the contention and the submission on behalf of the Mittal Group is accepted, in that case, the entire MoS would be unworkable and the purpose and object of the MoS to resolve all the disputes would be frustrated. As the Mittal Group has not fulfilled its obligations it appears that the Seth Group has not deposited the balance amount of EDC liability. At this stage, it is required to be noted that as per Clause 5.8 Mittal Group shall not resign from the Board of Directors of TFIPL and shall not transfer majority/controlling shareholding in TFIPL till renewal of licenses. As per the case of Seth Group, Mittal Group have retired from the Directorship of TFIPL and the balance sheet since then is being signed by the proxies. 9.2 As observed hereinabove, as per the MoS dated 04.05.2015 and even as per the order passed by this Court 05.05.2015, all the parties to the MoS are bound to fulfill their respective obligations. As observed hereinabove, Seth Group have fulfilled their obligations, except the payment of DTCP i.e. Rs.25.27 crores as per Clause 1.2 of the MoS (except Rs.9.49 crores which is paid).
### Response:
0
### Explanation:
8.1 At the outset, it is required to be noted that as such the present proceedings are filed by the respective parties to the MoS dated 04.05.2015, which subsequently was made the order passed by this Court dated 05.05.2015 to initiate appropriate proceedings against each other under the provisions of the Contempt of Courts Act. It is not in dispute that all were parties to the MoS/consent order9. The entire object and purpose of entering into the settlement was to resolve all the disputes between the parties. Therefore, it is the duty of the Court that the settlement entered into between the parties and the consent order passed by this Court should be given effect to in its letter and spirit. All the parties to the consent terms are required to fully comply with the terms of settlement/consent terms and the consent order. One party cannot be permitted to say that that portion of the settlement which is in their favour be executed and/or complied with and not the other terms of the settlement/consent terms/consent order9.1 From the facts narrated hereinabove and even otherwise considering the relevant clauses of the MoS and the obligations to be fulfilled by the respective parties to the MoS, it appears that Seth Group have fully complied with their obligations, except deposit of the total amount of Rs.25.27 crores - payment to DTCP towards initial liability of Rs.59.05 crores of TFIPL. It appears that Seth Group have already paid Rs.9.40 crores against the total libaiility of Rs.25.27 crores towards EDC liability against the total liability of Rs.59.05 crores of TFIPL as per Clause 1.2. It appears that the balance amount is not deposited by the Seth Group as the Mittal Group have not fulfilled their obligations under the MoS. It is stated at the bar that the Seth Group is always ready and willing to fulfill their obligations in terms of the MoS, i.e. their liability as per Clause 1.2, subject to Mittal Group fulfill its obligations. From the material on record, it appears that the Mittal Group have not fulfilled their obligations as per Clause 1.2, Clause 5.3 and Clause 8. Neither the Mittal Group nor TFIPL have deposited the balance amount to be paid towards EDC liability of Rs.59.05 crores (deducting Rs.25.27 crores to be paid by the Seth Group as per Clause 1.2). It is the case on behalf of the Mittal Group that it is the liability of the TIDCO and not the Mittal Group and in the MoS there is no specific term and the obligation that the said amount is to be paid by the Mittal Group. It is required to be noted that all the terms and conditions/obligations of the Seth Group, Mittal Group and TFIPL are required to be read conjointly. The license Nos. 34, 35 and 36 of 2007 are required to be transferred in favour of Seth Group. It appears that TFIPL acquired some land at Sector 70 and some 48.03 acres of land at Sector 89, Faridabad. TFIPL also availed licenses Nos. 34, 35 and 36 from the competent authorities in the year 2007 in respect of land bearing at Sector 89 with an intent to develop the Sector 89 land. Subsequently, however , both the parties – Seth Group and Mittal Group agreed that it would be the best that the development of the said land be divided and carried out separately and thereupon the development rights in the Sector 89 land parcel of 48.03 acres of land belonging to TFIPL was sold in the manner mentioned as under:The liability of Rs.59.05 crores was with respect to the entire land – 48.03 acres at Sector 89, Faridabad. Therefore, the liability of the Seth Group would be with respect to their share out of 48.03 acres which, as agreed between the parties, would come to Rs.25.27 crores and therefore the balance is naturally required to be paid by Mittal Group/TFIPL. Unless and until the entire amount is deposited with the DTCP towards EDC, the aforesaid licenses cannot be renewed and after renewal they are required to be bifurcated and transferred. As the Mittal Group has refused to deposit the balance amount of EDC (after deducting Rs.25.27 crores which is the liability of Seth Group as per Clause 1.2), the licenses are not being renewed thereafter. If the contention and the submission on behalf of the Mittal Group is accepted, in that case, the entire MoS would be unworkable and the purpose and object of the MoS to resolve all the disputes would be frustrated. As the Mittal Group has not fulfilled its obligations it appears that the Seth Group has not deposited the balance amount of EDC liability. At this stage, it is required to be noted that as per Clause 5.8 Mittal Group shall not resign from the Board of Directors of TFIPL and shall not transfer majority/controlling shareholding in TFIPL till renewal of licenses. As per the case of Seth Group, Mittal Group have retired from the Directorship of TFIPL and the balance sheet since then is being signed by the proxies9.2 As observed hereinabove, as per the MoS dated 04.05.2015 and even as per the order passed by this Court 05.05.2015, all the parties to the MoS are bound to fulfill their respective obligations. As observed hereinabove, Seth Group have fulfilled their obligations, except the payment of DTCP i.e. Rs.25.27 crores as per Clause 1.2 of the MoS (except Rs.9.49 crores which is paid).
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K.T.M.S. Mohammed & Another Vs. Union of India | the three. On the other hand, the offence said to have been committed by the third appellant is specifically attributed only to him. So the question is whether any conspiracy could be inferred under these circumstances. In our opinion, on the facts of the case, no such inference could by drawn for the simple reason that the appellants 1 and 2 were interrogated by the Enforcement Authorities on 19.10.66 and they sent their letter of retraction through their advocate on the very next day i.e. on 20.10.66 and that the ITO, Karakudi has recorded the retraction statement of the first appellant even on 16.11.66. It was only thereafter the third appellant sent his letter to the Enforcement Authorities claiming the controversial amount on 22.12.66. The charges levelled against appellants 1 and 2 are only on the basis of their retractions made through their lawyer on 20.10.66 and by their subsequent statements. In the letter dated 20.10.66, the appellants 1 and 2 have not stated that the amount belonged to the third appellant. Similarly, it is not the case of the prosecution that the first appellant by his statement dated 16.11.66 explained the amount as belonging to the third appellant. Nor is it the case of the prosecution that the second appellant came forward by his statement recorded in the year 1974 which is the basis for prosecuting him for perjury stating that the amount belonged to the third appellant. Therefore, no agreement to commit the offence punishable under Sections 193 IPC or 277 I.T. Act can be said to have been hatched among all the three appellants. further, it is neither the case of the complainant nor could it be said that the appellants 1 and 2 knew that the third appellant intentionally fabricated false evidence or wilfully made a false return before the ITO. Merely because the third appellant happens to be related to the first appellant and claimed that amount as owner thereof, no irresistible inference can be safely drawn that there was a conspiracy among all the three appellants and the accused Nos. 4 and 5. Moreover, the evidence, direct or circumstantial is very much lacking to bring all the three and the other two accused under the charge of conspiracy. hence the third appellant cannot be put on a joint trial along with appellants 1 and 2 and others under the charge of conspiracy. Therefore, the conviction of the third appellant under the conspiracy charge has to fail.54. It is pertinent to note, in this connection, that the trial court in paragraphs 87 and 88 of its judgments, after finding appellant No. 3 guilty of the conspiracy charge along with appellants 1 and 2, A 4 (since dead) and A 5 punishable under Sections 120-B read with 193 IPC and 120-B read with 277 I.T. Act has acquitted the fifth accused (Bhaskar alias Kannan) of all the charges in paragraph 89 of its judgment. This contradictory finding of the trial court has not been noted either by the appellate court or by the High Court. 55. The next question that arises for consideration is whether the third appellant can be convicted for the offence under Sections 193 IPC and 277 of the I.T. Act (simplicitor). The third appellant has not voluntarily submitted any return before the ITO but only on receipt of a notice from the ITO. No doubt, this will not absolve the criminal liability of the third appellant if the ingredients to constitute the offences under these two sections are established and the trial of the case is not vitiated by any illegality. 56. Section 277 of the I.T. Act in general seeks to the penalise one who makes a false statement in order to avoid his tax liability. In the present case, the Revenue has not come forward that the money represents the income of the third appellant liable to be taxed but on the other hand it is the case of the ITO that it is not the third appellants money at all. Moreover, a cursory reading of the penal clause proposes to impose punishment depending upon the quantum of tax sought to be evaded. Here no question of evading he tax will arise. Even assuming, that the third appellant has made himself liable to be punished under Sections 193 and 277 (simplicitor) of the I.T. Act, inasmuch as he has been put in a joint trial with the appellants 1 and 2 for the conspiracy of the said offences without any specific allegation or acceptable evidence to connect the third appellant with the activities of the appellants 1 and 2, there is a clear misjoinder of charges which includes misjoinder of parties also. In the facts and circumstances of the case on hand, the misjoinder of charges cannot be said to be a mere irregularity. In our considered opinion by the joint trial with misjoinder of charges, as pointed out by Mr. ATM Sampath, a failure of justice has in fact been occasioned since all the Courts below have clubbed all the allegations levelled against all the three appellants and two other accused (A 4 and A 5) together and considered the same as if all the offences were committed in the course of the same transaction pursuant to a conspiracy which is neither supported by the allegations in the complaint nor by any evidence as required under the law. Hence, the conviction under Sections 193 IPC and 277 of I.T. Act (simplicitor) also have to be set aside.57. The High Court, without adverting to the above important intricated questions of law involved in this case and examining them in the proper perspective has disposed of the revisions in a summary manner and hence the impugned orders warrant an interference. Since we are inclined to allow all these appeals mainly on the various questions of law which we have discussed in the preceding part of this judgment, we feel it unnecessary to deal with the other questions raised in the appeal. | 1[ds]40. Hence for all the reasons stated supra, we hold that the convictions recorded by the Courts below under Sections 120-B read with 193IPC and 193 (simplicitor) as against the appellants 1 and 2 cannot be sustained. It is very surprising and shocking to note that the complainant has stepped into the shoe of the Enforcement Directorate, and appears to have assumed the authority under the FERA and levelled a charge stating that the appellants 1 and 2 by sending the letter of retraction on 20.10.66 denying their earlier statements dated 19.10.66 have made themselves liable to be convicted under Section 193 IPC (vide paragraph 25 (i) of the complaint).41. Still more shocking, the Trial Court has not only convicted the appellants 1 and 2 for sending the letter of retraction dated 20.10.66 but also found the third appellant and accused Nos. 4 and 5 as having been parties to a conspiracy for causing a letter dated 20.10.66 to be sent the Enforcement Directorate.In the present case, on two occasions, the Tribunal has held that the amount of Rs. 6 lakhs was not owned by the first appellant. In Exh. D 4, the Tribunal has further held the Section 69 (a) dealing with the unexplained money etc. has no application to the facts of the case. Taking this finding of the Tribunal into constitution, we are constrained to hold that the appellants cannot be held to be liable for punishment under Section 120-B read with 277 and 277 (simplicitor) of the I.T. Act as the very basis of the prosecution is completely nullified by the order of the Tribunal which fact can be given due regard in deciding the question of the criminal liability of the appellants 1 and 2.51. Now coming to the case of the third appellant, it is his specific case throughout that the entire amount of Rs. 4,28,712 belonged to him. It appears from paragraphs 70 and 71 of the judgment of the trial court that the third appellant filed a suit on O.S. No. 62/71 on the original side of the High Court of Madras against the Enforcement Directorate claiming the said amount but that suit was dismissed. Exh. P 87 is the certified copy of the judgment. While it was so, PW 2 who was then the Income-tax Officer, City Circle, Madras during 1967-68 issued a letter dated 2.2.67 enclosing a notice under Sections 139 (2) of the I.T. Act and also another notice under Section 177 and 175 of the Act-both relating to the assessment years 1967-68-which notices are marked as Exhs. P 14 and P 15. He was further directed to file his return of income within a week of the receipt of Exh. P 15. The third appellants plea for extension of time was rejected. The third appellant, thereafter, filed his statement in verification accompanied by a signed statement claiming exemption of the sum of Rs. 4,28,713 as non-taxable on the ground that the said amount represented the sale proceeds of his mothers jewels etc.A careful perusal of the complaint leaves an impression that it has been ill-drafted and that necessary ingredients to make out a case for conspiracy are not brought out in the complaint. It is true that in case of conspiracy, an agreement between the conspirators need not be directly proved but it can also be inferred form the established facts in the case. As pointed out by this Court in Bhagwan Swaruop and ors v. State of Maharashtra, AIR 1965 SC 682 : 1964(2) SCR 378 that the offence of conspiracy can be established either by direct evidence or by circumstantial evidence and this section will come to play only when the Court is satisfied that there is reasonable ground to believe that two or more persons have conspired to commit an offence or an actionable wrong, that is to say, there should be prima facie evidence that a person was a party to the conspiracy. The charges levelled in the complaint in paragraphs 25 (i) (ii) and (iii) read that the first and the second appellants by sending the letter through their lawyer on 20.10.66 committed an offence under Section 193 IPC and that they, thereafter, individually committed an offence under Section 193 IPC by retracting their earlier statements given before the Enforcement Authorities. Under Paragraph 25 (iv), (vi) and (vii) of the complaint, the third appellant is stated to have caused false entries to exist in the account books of M/s precious Stone Trading Company and then wilfully made a false statement in verification before the Income-tax Authority accompanied by a false statement. Nowhere, it is stated that the individual acts of appellants 1 and 2 and that of the third appellant were due to any conspiracy among all the three. On the other hand, the offence said to have been committed by the third appellant is specifically attributed only to him. So the question is whether any conspiracy could be inferred under these circumstances. In our opinion, on the facts of the case, no such inference could by drawn for the simple reason that the appellants 1 and 2 were interrogated by the Enforcement Authorities on 19.10.66 and they sent their letter of retraction through their advocate on the very next day i.e. on 20.10.66 and that the ITO, Karakudi has recorded the retraction statement of the first appellant even on 16.11.66. It was only thereafter the third appellant sent his letter to the Enforcement Authorities claiming the controversial amount on 22.12.66. The charges levelled against appellants 1 and 2 are only on the basis of their retractions made through their lawyer on 20.10.66 and by their subsequent statements. In the letter dated 20.10.66, the appellants 1 and 2 have not stated that the amount belonged to the third appellant. Similarly, it is not the case of the prosecution that the first appellant by his statement dated 16.11.66 explained the amount as belonging to the third appellant. Nor is it the case of the prosecution that the second appellant came forward by his statement recorded in the year 1974 which is the basis for prosecuting him for perjury stating that the amount belonged to the third appellant. Therefore, no agreement to commit the offence punishable under Sections 193 IPC or 277 I.T. Act can be said to have been hatched among all the three appellants. further, it is neither the case of the complainant nor could it be said that the appellants 1 and 2 knew that the third appellant intentionally fabricated false evidence or wilfully made a false return before the ITO. Merely because the third appellant happens to be related to the first appellant and claimed that amount as owner thereof, no irresistible inference can be safely drawn that there was a conspiracy among all the three appellants and the accused Nos. 4 and 5. Moreover, the evidence, direct or circumstantial is very much lacking to bring all the three and the other two accused under the charge of conspiracy. hence the third appellant cannot be put on a joint trial along with appellants 1 and 2 and others under the charge of conspiracy. Therefore, the conviction of the third appellant under the conspiracy charge has to fail.54. It is pertinent to note, in this connection, that the trial court in paragraphs 87 and 88 of its judgments, after finding appellant No. 3 guilty of the conspiracy charge along with appellants 1 and 2, A 4 (since dead) and A 5 punishable under Sections 120-B read with 193 IPC and 120-B read with 277 I.T. Act has acquitted the fifth accused (Bhaskar alias Kannan) of all the charges in paragraph 89 of its judgment. This contradictory finding of the trial court has not been noted either by the appellate court or by the High Court.Section 277 of the I.T. Act in general seeks to the penalise one who makes a false statement in order to avoid his tax liability. In the present case, the Revenue has not come forward that the money represents the income of the third appellant liable to be taxed but on the other hand it is the case of the ITO that it is not the third appellants money at all. Moreover, a cursory reading of the penal clause proposes to impose punishment depending upon the quantum of tax sought to be evaded. Here no question of evading he tax will arise. Even assuming, that the third appellant has made himself liable to be punished under Sections 193 and 277 (simplicitor) of the I.T. Act, inasmuch as he has been put in a joint trial with the appellants 1 and 2 for the conspiracy of the said offences without any specific allegation or acceptable evidence to connect the third appellant with the activities of the appellants 1 and 2, there is a clear misjoinder of charges which includes misjoinder of parties also. In the facts and circumstances of the case on hand, the misjoinder of charges cannot be said to be a mere irregularity. In our considered opinion by the joint trial with misjoinder of charges, as pointed out by Mr. ATM Sampath, a failure of justice has in fact been occasioned since all the Courts below have clubbed all the allegations levelled against all the three appellants and two other accused (A 4 and A 5) together and considered the same as if all the offences were committed in the course of the same transaction pursuant to a conspiracy which is neither supported by the allegations in the complaint nor by any evidence as required under the law. Hence, the conviction under Sections 193 IPC and 277 of I.T. Act (simplicitor) also have to be set aside.57. The High Court, without adverting to the above important intricated questions of law involved in this case and examining them in the proper perspective has disposed of the revisions in a summary manner and hence the impugned orders warrant an interference. Since we are inclined to allow all these appeals mainly on the various questions of law which we have discussed in the preceding part of this judgment, we feel it unnecessary to deal with the other questions raised in the appeal. | 1 | 9,755 | 1,861 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
the three. On the other hand, the offence said to have been committed by the third appellant is specifically attributed only to him. So the question is whether any conspiracy could be inferred under these circumstances. In our opinion, on the facts of the case, no such inference could by drawn for the simple reason that the appellants 1 and 2 were interrogated by the Enforcement Authorities on 19.10.66 and they sent their letter of retraction through their advocate on the very next day i.e. on 20.10.66 and that the ITO, Karakudi has recorded the retraction statement of the first appellant even on 16.11.66. It was only thereafter the third appellant sent his letter to the Enforcement Authorities claiming the controversial amount on 22.12.66. The charges levelled against appellants 1 and 2 are only on the basis of their retractions made through their lawyer on 20.10.66 and by their subsequent statements. In the letter dated 20.10.66, the appellants 1 and 2 have not stated that the amount belonged to the third appellant. Similarly, it is not the case of the prosecution that the first appellant by his statement dated 16.11.66 explained the amount as belonging to the third appellant. Nor is it the case of the prosecution that the second appellant came forward by his statement recorded in the year 1974 which is the basis for prosecuting him for perjury stating that the amount belonged to the third appellant. Therefore, no agreement to commit the offence punishable under Sections 193 IPC or 277 I.T. Act can be said to have been hatched among all the three appellants. further, it is neither the case of the complainant nor could it be said that the appellants 1 and 2 knew that the third appellant intentionally fabricated false evidence or wilfully made a false return before the ITO. Merely because the third appellant happens to be related to the first appellant and claimed that amount as owner thereof, no irresistible inference can be safely drawn that there was a conspiracy among all the three appellants and the accused Nos. 4 and 5. Moreover, the evidence, direct or circumstantial is very much lacking to bring all the three and the other two accused under the charge of conspiracy. hence the third appellant cannot be put on a joint trial along with appellants 1 and 2 and others under the charge of conspiracy. Therefore, the conviction of the third appellant under the conspiracy charge has to fail.54. It is pertinent to note, in this connection, that the trial court in paragraphs 87 and 88 of its judgments, after finding appellant No. 3 guilty of the conspiracy charge along with appellants 1 and 2, A 4 (since dead) and A 5 punishable under Sections 120-B read with 193 IPC and 120-B read with 277 I.T. Act has acquitted the fifth accused (Bhaskar alias Kannan) of all the charges in paragraph 89 of its judgment. This contradictory finding of the trial court has not been noted either by the appellate court or by the High Court. 55. The next question that arises for consideration is whether the third appellant can be convicted for the offence under Sections 193 IPC and 277 of the I.T. Act (simplicitor). The third appellant has not voluntarily submitted any return before the ITO but only on receipt of a notice from the ITO. No doubt, this will not absolve the criminal liability of the third appellant if the ingredients to constitute the offences under these two sections are established and the trial of the case is not vitiated by any illegality. 56. Section 277 of the I.T. Act in general seeks to the penalise one who makes a false statement in order to avoid his tax liability. In the present case, the Revenue has not come forward that the money represents the income of the third appellant liable to be taxed but on the other hand it is the case of the ITO that it is not the third appellants money at all. Moreover, a cursory reading of the penal clause proposes to impose punishment depending upon the quantum of tax sought to be evaded. Here no question of evading he tax will arise. Even assuming, that the third appellant has made himself liable to be punished under Sections 193 and 277 (simplicitor) of the I.T. Act, inasmuch as he has been put in a joint trial with the appellants 1 and 2 for the conspiracy of the said offences without any specific allegation or acceptable evidence to connect the third appellant with the activities of the appellants 1 and 2, there is a clear misjoinder of charges which includes misjoinder of parties also. In the facts and circumstances of the case on hand, the misjoinder of charges cannot be said to be a mere irregularity. In our considered opinion by the joint trial with misjoinder of charges, as pointed out by Mr. ATM Sampath, a failure of justice has in fact been occasioned since all the Courts below have clubbed all the allegations levelled against all the three appellants and two other accused (A 4 and A 5) together and considered the same as if all the offences were committed in the course of the same transaction pursuant to a conspiracy which is neither supported by the allegations in the complaint nor by any evidence as required under the law. Hence, the conviction under Sections 193 IPC and 277 of I.T. Act (simplicitor) also have to be set aside.57. The High Court, without adverting to the above important intricated questions of law involved in this case and examining them in the proper perspective has disposed of the revisions in a summary manner and hence the impugned orders warrant an interference. Since we are inclined to allow all these appeals mainly on the various questions of law which we have discussed in the preceding part of this judgment, we feel it unnecessary to deal with the other questions raised in the appeal.
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an offence under Section 193 IPC by retracting their earlier statements given before the Enforcement Authorities. Under Paragraph 25 (iv), (vi) and (vii) of the complaint, the third appellant is stated to have caused false entries to exist in the account books of M/s precious Stone Trading Company and then wilfully made a false statement in verification before the Income-tax Authority accompanied by a false statement. Nowhere, it is stated that the individual acts of appellants 1 and 2 and that of the third appellant were due to any conspiracy among all the three. On the other hand, the offence said to have been committed by the third appellant is specifically attributed only to him. So the question is whether any conspiracy could be inferred under these circumstances. In our opinion, on the facts of the case, no such inference could by drawn for the simple reason that the appellants 1 and 2 were interrogated by the Enforcement Authorities on 19.10.66 and they sent their letter of retraction through their advocate on the very next day i.e. on 20.10.66 and that the ITO, Karakudi has recorded the retraction statement of the first appellant even on 16.11.66. It was only thereafter the third appellant sent his letter to the Enforcement Authorities claiming the controversial amount on 22.12.66. The charges levelled against appellants 1 and 2 are only on the basis of their retractions made through their lawyer on 20.10.66 and by their subsequent statements. In the letter dated 20.10.66, the appellants 1 and 2 have not stated that the amount belonged to the third appellant. Similarly, it is not the case of the prosecution that the first appellant by his statement dated 16.11.66 explained the amount as belonging to the third appellant. Nor is it the case of the prosecution that the second appellant came forward by his statement recorded in the year 1974 which is the basis for prosecuting him for perjury stating that the amount belonged to the third appellant. Therefore, no agreement to commit the offence punishable under Sections 193 IPC or 277 I.T. Act can be said to have been hatched among all the three appellants. further, it is neither the case of the complainant nor could it be said that the appellants 1 and 2 knew that the third appellant intentionally fabricated false evidence or wilfully made a false return before the ITO. Merely because the third appellant happens to be related to the first appellant and claimed that amount as owner thereof, no irresistible inference can be safely drawn that there was a conspiracy among all the three appellants and the accused Nos. 4 and 5. Moreover, the evidence, direct or circumstantial is very much lacking to bring all the three and the other two accused under the charge of conspiracy. hence the third appellant cannot be put on a joint trial along with appellants 1 and 2 and others under the charge of conspiracy. Therefore, the conviction of the third appellant under the conspiracy charge has to fail.54. It is pertinent to note, in this connection, that the trial court in paragraphs 87 and 88 of its judgments, after finding appellant No. 3 guilty of the conspiracy charge along with appellants 1 and 2, A 4 (since dead) and A 5 punishable under Sections 120-B read with 193 IPC and 120-B read with 277 I.T. Act has acquitted the fifth accused (Bhaskar alias Kannan) of all the charges in paragraph 89 of its judgment. This contradictory finding of the trial court has not been noted either by the appellate court or by the High Court.Section 277 of the I.T. Act in general seeks to the penalise one who makes a false statement in order to avoid his tax liability. In the present case, the Revenue has not come forward that the money represents the income of the third appellant liable to be taxed but on the other hand it is the case of the ITO that it is not the third appellants money at all. Moreover, a cursory reading of the penal clause proposes to impose punishment depending upon the quantum of tax sought to be evaded. Here no question of evading he tax will arise. Even assuming, that the third appellant has made himself liable to be punished under Sections 193 and 277 (simplicitor) of the I.T. Act, inasmuch as he has been put in a joint trial with the appellants 1 and 2 for the conspiracy of the said offences without any specific allegation or acceptable evidence to connect the third appellant with the activities of the appellants 1 and 2, there is a clear misjoinder of charges which includes misjoinder of parties also. In the facts and circumstances of the case on hand, the misjoinder of charges cannot be said to be a mere irregularity. In our considered opinion by the joint trial with misjoinder of charges, as pointed out by Mr. ATM Sampath, a failure of justice has in fact been occasioned since all the Courts below have clubbed all the allegations levelled against all the three appellants and two other accused (A 4 and A 5) together and considered the same as if all the offences were committed in the course of the same transaction pursuant to a conspiracy which is neither supported by the allegations in the complaint nor by any evidence as required under the law. Hence, the conviction under Sections 193 IPC and 277 of I.T. Act (simplicitor) also have to be set aside.57. The High Court, without adverting to the above important intricated questions of law involved in this case and examining them in the proper perspective has disposed of the revisions in a summary manner and hence the impugned orders warrant an interference. Since we are inclined to allow all these appeals mainly on the various questions of law which we have discussed in the preceding part of this judgment, we feel it unnecessary to deal with the other questions raised in the appeal.
|
Amireddi Rajagopala Rao And Others Vs. Amireddi Sitharamamma And Others | 2. Where a dependant has not obtained, by testamentary or intestate succession, any share in the estate of a Hindu dying after the commencement of this Act, the dependant shall be entitled, subject to the provisions of this Act, to maintenance from those who take the estate. 3. The liability of each of the persons who takes the estate shall be in proportion to the value of the share or part of the estate taken by him or her. 4. Notwithstanding anything contained in sub-section (2) or sub-section (3), no person who is himself or herself a dependant shall be liable to contribute to the maintenance of the others, if he or she has obtained a share or part the value of which is, or would, if the liability to contribute were enforced, become less than what would be awarded to him or her by way of maintenance under this Act. " Sub-section (1) of S. 22 imposes upon the heirs of a deceased Hindu the liability to maintain the dependants of the deceased defined in S. 21 out of the estate inherited by them from the deceased, but this liability is subject to the provisions of sub-section (2), under which only a dependant who has not obtained by testamentary or intestate succession, any share in the estate of a Hindu dying after the commencement of the Act is entitled, subject to the provisions of the Act, to maintenance. Specific provision is thus made in S. 22 with regard to maintenance of the dependants defined in S. 21 out of the estate of the deceased Hindu, and in view of S. 4, the Hindu law in force immediately before the commencement of the Act ceases to have effect after the commencement of the Act with respect to matters for which provision is so made. In terms, Ss. 21 and 22 are prospective. Where the Act is intended to be retrospective, it expressly says so. Thus, S. 18 provides for maintenance of a Hindu wife, whether married before or after the commencement of the Act, by her husband, S. 19 provides for the maintenance of a Hindu wife, whether married before or after the commencement of the Act, by her father-in-law, after the death of her husband, and S. 25 provides for alteration of the amount of maintenance whether fixed by a decree of Court or by agreement either before or after the commencement of the Act. 9. Now, before the Act came into force, rights of maintenance out of the estate of a Hindu dying before the commencement of the Act were acquired, and the corresponding liability to pay the maintenance was incurred under the Hindu law in force at the time of his death. It is a well-recognised rule that a statute should be interpreted, if possible, so as to respect vested rights, and such a construction should never be adopted if the words are open to another construction. See Craies on Statute Law, 6th Edn. (1963), p. 397. We think that Ss. 21 and 22 read with S. 4 do not destroy or affect any right of maintenance out of the estate of a deceased Hindu vested on his death before the commencement of the Act under the Hindu law in force at the time of his death. 10. On the death of Lingayya, the first respondent as his concubine and the second, third and fourth respondents as her illegitimate sons had a vested right of maintenance during their lives out of the estate of Lingayya. This right, and the corresponding liability of the appellants to pay maintenance are not affected by Ss. 21 and 22 of the Act. The continuing claim of the respondents during their lifetime springs out of the original right vested in them on the death of Lingayya and is not founded on any right arising after the commencement of the Act. 11. In Kameshwaramma v. Subramanyam, AIR 1959 Andh Pra 269, the plaintiffs husband had died in the year 1916, and the plaintiff had entered into a compromise in 1924 fixing her maintenance at Rs. 240 per year and providing that the rate of maintenance shall not be increased or reduced. The question arose whether, in spite of this agreement, the plaintiff could claim increased maintenance in view of S. 25 of the Hindu Adoptions and Maintenance. Act, 1956. It was held that, in spite of the aforesaid term of the compromise, she was entitled to claim increased maintenance under S. 25. This conclusion follows from the plain words of S. 25, under which the amount of maintenance, whether fixed by decree or agreement either before or after the commencement of the Act, may be altered subsequently. The decision was, therefore, plainly right. No doubt, there are broad observations in that case to the effect that the right to maintenance is a recurring right and the liability to maintenance after the Act came into force is imposed by S. 22, and there is no reason to exclude widows of persons who died before the Act from the operation of S. 22. Those observations were not necessary for the purpose of that case, because the widow in that case was clearly entitled to maintenance from the estate of her deceased husband dying in 1916 under the Hindu law, as it stood then, independently of Ss. 21 and 22 of the Act, and in spite of the compromise fixing the maintenance before the commencement of the Act, the widow could in view of S. 25 claim alteration of the amount of the maintenance. The decision cannot be regarded as an authority for the proposition that Ss. 21 and 22 of the Act affect rights already vested before the commencement of the Act. We, therefore, hold that the claim of the respondents to maintenance for their lives is not affected by the Act. 12. We see no reason to interfere with the concurrent finding of the Courts below with regard to the quantum of maintenance. 13. | 0[ds]In Kameshwaramma v. Subramanyam, AIR 1959 Andh Pra 269, the plaintiffs husband had died in the year 1916, and the plaintiff had entered into a compromise in 1924 fixing her maintenance at Rs. 240 per year and providing that the rate of maintenance shall not be increased or reduced. The question arose whether, in spite of this agreement, the plaintiff could claim increased maintenance in view of S. 25 of the Hindu Adoptions and Maintenance. Act, 1956. It was held that, in spite of the aforesaid term of the compromise, she was entitled to claim increased maintenance under S. 25. This conclusion follows from the plain words of S. 25, under which the amount of maintenance, whether fixed by decree or agreement either before or after the commencement of the Act, may be altered subsequently. The decision was, therefore, plainly right. No doubt, there are broad observations in that case to the effect that the right to maintenance is a recurring right and the liability to maintenance after the Act came into force is imposed by S. 22, and there is no reason to exclude widows of persons who died before the Act from the operation of S. 22. Those observations were not necessary for the purpose of that case, because the widow in that case was clearly entitled to maintenance from the estate of her deceased husband dying in 1916 under the Hindu law, as it stood then, independently of Ss. 21 and 22 of the Act, and in spite of the compromise fixing the maintenance before the commencement of the Act, the widow could in view of S. 25 claim alteration of the amount of the maintenance. The decision cannot be regarded as an authority for the proposition that Ss. 21 and 22 of the Act affect rights already vested before the commencement of the Act. We, therefore, hold that the claim of the respondents to maintenance for their lives is not affected by the ActWe see no reason to interfere with the concurrent finding of the Courts below with regard to the quantum of maintenance. | 0 | 3,655 | 388 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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2. Where a dependant has not obtained, by testamentary or intestate succession, any share in the estate of a Hindu dying after the commencement of this Act, the dependant shall be entitled, subject to the provisions of this Act, to maintenance from those who take the estate. 3. The liability of each of the persons who takes the estate shall be in proportion to the value of the share or part of the estate taken by him or her. 4. Notwithstanding anything contained in sub-section (2) or sub-section (3), no person who is himself or herself a dependant shall be liable to contribute to the maintenance of the others, if he or she has obtained a share or part the value of which is, or would, if the liability to contribute were enforced, become less than what would be awarded to him or her by way of maintenance under this Act. " Sub-section (1) of S. 22 imposes upon the heirs of a deceased Hindu the liability to maintain the dependants of the deceased defined in S. 21 out of the estate inherited by them from the deceased, but this liability is subject to the provisions of sub-section (2), under which only a dependant who has not obtained by testamentary or intestate succession, any share in the estate of a Hindu dying after the commencement of the Act is entitled, subject to the provisions of the Act, to maintenance. Specific provision is thus made in S. 22 with regard to maintenance of the dependants defined in S. 21 out of the estate of the deceased Hindu, and in view of S. 4, the Hindu law in force immediately before the commencement of the Act ceases to have effect after the commencement of the Act with respect to matters for which provision is so made. In terms, Ss. 21 and 22 are prospective. Where the Act is intended to be retrospective, it expressly says so. Thus, S. 18 provides for maintenance of a Hindu wife, whether married before or after the commencement of the Act, by her husband, S. 19 provides for the maintenance of a Hindu wife, whether married before or after the commencement of the Act, by her father-in-law, after the death of her husband, and S. 25 provides for alteration of the amount of maintenance whether fixed by a decree of Court or by agreement either before or after the commencement of the Act. 9. Now, before the Act came into force, rights of maintenance out of the estate of a Hindu dying before the commencement of the Act were acquired, and the corresponding liability to pay the maintenance was incurred under the Hindu law in force at the time of his death. It is a well-recognised rule that a statute should be interpreted, if possible, so as to respect vested rights, and such a construction should never be adopted if the words are open to another construction. See Craies on Statute Law, 6th Edn. (1963), p. 397. We think that Ss. 21 and 22 read with S. 4 do not destroy or affect any right of maintenance out of the estate of a deceased Hindu vested on his death before the commencement of the Act under the Hindu law in force at the time of his death. 10. On the death of Lingayya, the first respondent as his concubine and the second, third and fourth respondents as her illegitimate sons had a vested right of maintenance during their lives out of the estate of Lingayya. This right, and the corresponding liability of the appellants to pay maintenance are not affected by Ss. 21 and 22 of the Act. The continuing claim of the respondents during their lifetime springs out of the original right vested in them on the death of Lingayya and is not founded on any right arising after the commencement of the Act. 11. In Kameshwaramma v. Subramanyam, AIR 1959 Andh Pra 269, the plaintiffs husband had died in the year 1916, and the plaintiff had entered into a compromise in 1924 fixing her maintenance at Rs. 240 per year and providing that the rate of maintenance shall not be increased or reduced. The question arose whether, in spite of this agreement, the plaintiff could claim increased maintenance in view of S. 25 of the Hindu Adoptions and Maintenance. Act, 1956. It was held that, in spite of the aforesaid term of the compromise, she was entitled to claim increased maintenance under S. 25. This conclusion follows from the plain words of S. 25, under which the amount of maintenance, whether fixed by decree or agreement either before or after the commencement of the Act, may be altered subsequently. The decision was, therefore, plainly right. No doubt, there are broad observations in that case to the effect that the right to maintenance is a recurring right and the liability to maintenance after the Act came into force is imposed by S. 22, and there is no reason to exclude widows of persons who died before the Act from the operation of S. 22. Those observations were not necessary for the purpose of that case, because the widow in that case was clearly entitled to maintenance from the estate of her deceased husband dying in 1916 under the Hindu law, as it stood then, independently of Ss. 21 and 22 of the Act, and in spite of the compromise fixing the maintenance before the commencement of the Act, the widow could in view of S. 25 claim alteration of the amount of the maintenance. The decision cannot be regarded as an authority for the proposition that Ss. 21 and 22 of the Act affect rights already vested before the commencement of the Act. We, therefore, hold that the claim of the respondents to maintenance for their lives is not affected by the Act. 12. We see no reason to interfere with the concurrent finding of the Courts below with regard to the quantum of maintenance. 13.
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0
### Explanation:
In Kameshwaramma v. Subramanyam, AIR 1959 Andh Pra 269, the plaintiffs husband had died in the year 1916, and the plaintiff had entered into a compromise in 1924 fixing her maintenance at Rs. 240 per year and providing that the rate of maintenance shall not be increased or reduced. The question arose whether, in spite of this agreement, the plaintiff could claim increased maintenance in view of S. 25 of the Hindu Adoptions and Maintenance. Act, 1956. It was held that, in spite of the aforesaid term of the compromise, she was entitled to claim increased maintenance under S. 25. This conclusion follows from the plain words of S. 25, under which the amount of maintenance, whether fixed by decree or agreement either before or after the commencement of the Act, may be altered subsequently. The decision was, therefore, plainly right. No doubt, there are broad observations in that case to the effect that the right to maintenance is a recurring right and the liability to maintenance after the Act came into force is imposed by S. 22, and there is no reason to exclude widows of persons who died before the Act from the operation of S. 22. Those observations were not necessary for the purpose of that case, because the widow in that case was clearly entitled to maintenance from the estate of her deceased husband dying in 1916 under the Hindu law, as it stood then, independently of Ss. 21 and 22 of the Act, and in spite of the compromise fixing the maintenance before the commencement of the Act, the widow could in view of S. 25 claim alteration of the amount of the maintenance. The decision cannot be regarded as an authority for the proposition that Ss. 21 and 22 of the Act affect rights already vested before the commencement of the Act. We, therefore, hold that the claim of the respondents to maintenance for their lives is not affected by the ActWe see no reason to interfere with the concurrent finding of the Courts below with regard to the quantum of maintenance.
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Subharti Medical College Vs. Union of India & Others | 1. We have heard the learned counsel for the parties finally having regard to the urgency in the matter.2. To recapitulate the facts in brief it is stated that the petitioner-college had moved an application for consideration of increase in Post-Graduate seats in the Departments of Orthopedics and Ophthalmology for the Academic Year 2017-18. At present the petitioner-college is having four seats in Ophthalmology and two seats in Orthopedics. Request for increase in seats was considered by the Medical Council of India after carrying out the due inspection and the facilities etc. available with the petitioner-college and the Executive Committee passed the orders granting permission for increase in the Post-Graduate seats from four to six in MS(Ophthalmology) and two to five in MS(Orthopedics). A letter dated 21.02.2017 to this effect was addressed by the Central Government to the petitioner-college and as per requirement the petitioner-college was called upon to submit the requisite Bank Guarantee for the aforesaid purpose. According to the petitioner, the said letter was received only 28.02.2017 and within three days i.e. 03.03.2017 the petitioner-college submitted the Bank Guarantee. The respondents did not respond thereto immediately but only on 03.05.2017 the request of the petitioner-college was rejected on the ground that the condition for furnishing the bank-guarantee was not fulfilled by due date i.e. 28.02.2017.3. Learned counsel for the petitioner-college, in the aforesaid circumstances, has submitted that the matter was beyond the control of the petitioner-college inasmuch as letter itself was received on 28.02.2017 and that it was not possible to give the bank-guarantee on the same date. It is further submitted that the petitioner-college did not take much time in submitting the Bank Guarantee and needful was done within three days i.e. on 03.03.2017. It is the respondent which took almost two months in giving the reply rejecting the request. The submission is that in the aforesaid circumstances this technical lapse that too when it was beyond the control of the petitioner-college should have been condoned.4. We find force in the aforesaid submission of the learned counsel for the petitioner-college. It may be stated that Rule in this case was issued on 26.05.2017 when the counsel for the respondents was also present. Till date no reply has been filed and there is no denial of the averment, which is specifically made in the petition that letter dated 21.02.2017 was received by the petitioner-college only on 28.02.2017. | 1[ds]4. We find force in the aforesaid submission of the learned counsel for theIt may be stated that Rule in this case was issued on 26.05.2017 when the counsel for the respondents was also present. Till date no reply has been filed and there is no denial of the averment, which is specifically made in the petition that letter dated 21.02.2017 was received by theonly on 28.02.2017. | 1 | 428 | 75 | ### 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:
1. We have heard the learned counsel for the parties finally having regard to the urgency in the matter.2. To recapitulate the facts in brief it is stated that the petitioner-college had moved an application for consideration of increase in Post-Graduate seats in the Departments of Orthopedics and Ophthalmology for the Academic Year 2017-18. At present the petitioner-college is having four seats in Ophthalmology and two seats in Orthopedics. Request for increase in seats was considered by the Medical Council of India after carrying out the due inspection and the facilities etc. available with the petitioner-college and the Executive Committee passed the orders granting permission for increase in the Post-Graduate seats from four to six in MS(Ophthalmology) and two to five in MS(Orthopedics). A letter dated 21.02.2017 to this effect was addressed by the Central Government to the petitioner-college and as per requirement the petitioner-college was called upon to submit the requisite Bank Guarantee for the aforesaid purpose. According to the petitioner, the said letter was received only 28.02.2017 and within three days i.e. 03.03.2017 the petitioner-college submitted the Bank Guarantee. The respondents did not respond thereto immediately but only on 03.05.2017 the request of the petitioner-college was rejected on the ground that the condition for furnishing the bank-guarantee was not fulfilled by due date i.e. 28.02.2017.3. Learned counsel for the petitioner-college, in the aforesaid circumstances, has submitted that the matter was beyond the control of the petitioner-college inasmuch as letter itself was received on 28.02.2017 and that it was not possible to give the bank-guarantee on the same date. It is further submitted that the petitioner-college did not take much time in submitting the Bank Guarantee and needful was done within three days i.e. on 03.03.2017. It is the respondent which took almost two months in giving the reply rejecting the request. The submission is that in the aforesaid circumstances this technical lapse that too when it was beyond the control of the petitioner-college should have been condoned.4. We find force in the aforesaid submission of the learned counsel for the petitioner-college. It may be stated that Rule in this case was issued on 26.05.2017 when the counsel for the respondents was also present. Till date no reply has been filed and there is no denial of the averment, which is specifically made in the petition that letter dated 21.02.2017 was received by the petitioner-college only on 28.02.2017.
### Response:
1
### Explanation:
4. We find force in the aforesaid submission of the learned counsel for theIt may be stated that Rule in this case was issued on 26.05.2017 when the counsel for the respondents was also present. Till date no reply has been filed and there is no denial of the averment, which is specifically made in the petition that letter dated 21.02.2017 was received by theonly on 28.02.2017.
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P.C.Sethi Vs. Union Of Idnia | Office Memorandum of 1971 (Annexure 1), simply because it is not in conformity with the Office Memorandum of June 22, 1949. Besides, it is stated in the counter-affidavit of the Deputy Secretary (page 176 of the record) that "the Office Memorandum of 1971 is no longer operative. " We have seen that the rule of length of continuous service has been adopted in the case of different categories reconstituted in the Service in accordance with the administrative instructions of the Home Ministry issued after consultation with the Union Public Service Commission. The grievance that the said Office Memorandum should have been applied to all the temporary employees without the requirement of their being eligible in accordance with other instructions is without any foundation and cannot be upheld. A regular set of separate instructions governed the Service the existence of which cannot be explained if the Office Memorandum of June 22, 1949, alone were applicable, de hors these other instructions.It is further contended that rule 18 of the Rules is invalid in so far as it protects the seniority of the Assistants already observed violating the rule of continuous length of service amongst the entire group as a whole. This argument is untenable as the rule of continuous length of service cannot be invoked unless the temporary Assistants are absorbed in the Service in accordance, with the instructions which are valid. The entire group of temporary Assistants cannot claim seniority by the rule of length of continuous service without prior compliance with the conditions laid down under the instructions. Rule 1 8 is, therefore, not violative of article 14 or article 16 of, the Constitution on the score o f giving effect to the earlier or other instructions which are not found to be otherwise objectionable.That leaves one more question to be resolved, that is, with reference to the direct recruits. Once the temporary Assistants have been abs orbed in the service after they are found to be eligible in accordance with the instructions their claim for seniority cannot be superseded by the direct recruits if appointed after the formers absorption in the Service. This conclusion is based on the following factors:-Although the Scheme was made in July 1948 it was not enforced until November 1951. Even then there was no direct recruitment until 1956. The reasons for delaying direct recruitment can be found from a perusal of paragraph 15 of the 1948 Scheme itself, that it is essential from the point of view alike of economy and efficiency that as large a proportion is possible of the members of the service should be recruited on a permanent basis. If the Authorised permanent strength is reduced, effect should be given to such reduction by equivalent reduction in the following triennium of the rate of direct recruitment to the Service. It was, therefore, not the intention of the scheme to prejudice the seniority of the Assistants after their absorption in the Service nor such an intention was evident in the explanatory memorandum annexed to the Office Memorandum of October 25, 1948. In para 11 of the latter Memorandum it is unambiguously stated the "reinforcement is not required at the lowest level, namely the Assistants Grade. Here what is necessary is the weeding out of the poor quality material and the improvement of efficiency of the rest. through permanent tenure and better training d guidances. This is also clear from the instructions for the constitution and maintenance of the regular temporary establishment of Assistants dated August 26, 1968. Para 9 thereof provides that "all permanent vacancies in Grade IV not filled by direct recruitment on the results of Competitive Examination, held by the Union Public Service Commission shall be filled from the Regular Temporary Establishment in the order of Gazetted List" subject to certain provisions with which we are not concerned.It appears the quota, if any, of direct recruitment Was Dot enforced and perhaps for good reasons as noted above, the policy of the Government being different. Administrative instructions, if not carried into effect for obvious and good reasons, cannot confer a right upon entrants on later recruitment to enforce the same to supersede the claims of others already absorbed in the Service in accordance with the appropriate and valid instructions. Nothing was brought to our notice which could justify such a wholesale or en bloc discrimination in favour of those who suddenly enter the same grade of service by direct recruitment. It would, if permitted, be violative of article 16 of the Constitution which should never be overlooked in such cases.We are, therefore, clearly of opinion that the direct recruits who were appointed after the absorption of the Assistants, in conformity with the instructions of the initial constitution or in regular temporary establishment shall rank junior to the latter. We, therefore, direct that the seniority of such Assistants shall be adjusted and the seniority list corrected accordingly. T his will, however, not affect the cases of these Assistants who are already promoted and confirmed in a higher rank prior to the date of this petition.The learned counsel for the respondents strenuously contended that the petition may be dismissed on account of delay and laches. In view of the entire circumstances of the case and the hopes held out by the Government from time to time we are not prepared to accede to this submission. The petitioners also sought to take advantage of what they described as admission in Governments affidavits filed in connection with certain earlier proceedings of similar nature and other admissions in Parliament on behalf of the Government. We, are, however, unable to hold that such admissions, if any, which are mere expression of opinion limited to the context and also being rather vague hopes, not specific assurances, are binding on the Government to create an estoppel. In the view we have taken the case is distinguishable from Union of India and Ors. v. M. Ravi Yarma and Ors. etc. ([1972] 2 S.C.R. 992) principally relied upon by the petitioners. | 1[ds]Para 2 of the Office Memorandum as quoted above clearly shows that paragraph 8 which contains the rule of seniority being length of continuous service was in terms applicable to the initial constitution of the grade of Assistants. The said rule of seniority should be taken as "the medal in framing the rules of seniority for other services". This would go to demonstrate that the Office Memorandum of June 22, 1949, is no bar to the Government in making separate provisions for the mode of constitution. and future maintenance of the service of Assistants. There is, therefore, no obligation under the aforesaid Office Memorandum on the part of the Government to enforce a rule of bald length of continuous service irrespective of other considerations then the service was sought to be reorganised and reinforced. As noticed earlier the service had to be reconstituted and the temporary Assistants properly observed keeping in view the question of quality and efficiency as well as at the same where regard being had to accommodate as large number as possible for gradual absorption. In doing so we are unable to hold that the Government has violated the provisions of articles 14 or 16 of the Constitution. The classification under the instructions for the constitution of regular temporary establishment in the manner done cannot be characterised as unreasonable in view of the object for which these had to be introduced in reconstituting the service to ensure security of temporary employees assistant with efficiency in the Service. There is no discrimination whatsoever amongst the equals as such nor any arbitrary exercise of power by the Government. In absence of any statutory rules prior to the Central Secretariat Rules 1962 it was open to the Government in exercise of its executive power to issue administrative instructions with regard to constitution and reorganisation of the Service as long as there is no violation of article 14 or article 16 of the Constitution. Subject to what is observed hereafter, as held above we do not find that the instructions of the Government made from time to time violated any fundamental rights of the petitioners. We should also observe that the various Office Memorandum and instructions including the Civil list of 1962 have not been challenged as invalid with the solitary exception of the Office Memorandum of 1971 (Annexure 1). This Office Memorandum again is based on the Civil List of 1962 the validity of which is not specifically challenged in this Petition. We, therefore, do not find any infirmity in the Office Memorandum of 1971 (Annexure 1), simply because it is not in conformity with the Office Memorandum of June 22, 1949. Besides, it is stated in the counter-affidavit of the Deputy Secretary (page 176 of the record) that "the Office Memorandum of 1971 is no longer operative. " We have seen that the rule of length of continuous service has been adopted in the case of different categories reconstituted in the Service in accordance with the administrative instructions of the Home Ministry issued after consultation with the Union Public Service Commission. The grievance that the said Office Memorandum should have been applied to all the temporary employees without the requirement of their being eligible in accordance with other instructions is without any foundation and cannot be upheld. A regular set of separate instructions governed the Service the existence of which cannot be explained if the Office Memorandum of June 22, 1949, alone were applicable, de hors these other instructions.It is further contended that rule 18 of the Rules is invalid in so far as it protects the seniority of the Assistants already observed violating the rule of continuous length of service amongst the entire group as a whole. This argument is untenable as the rule of continuous length of service cannot be invoked unless the temporary Assistants are absorbed in the Service in accordance, with the instructions which are valid. The entire group of temporary Assistants cannot claim seniority by the rule of length of continuous service without prior compliance with the conditions laid down under the instructions. Ruleis, therefore, not violative of14 or article 16 of the Constitutionon the scoregiving effect to the earlier or other instructions which are not found to be otherwisethe temporary Assistants have been abs orbed in the service after they are found to be eligible in accordance with the instructions their claim for seniority cannot be superseded by the direct recruits if appointed after the formers absorption in theare, therefore, clearly of opinion that the direct recruits who were appointed after the absorption of the Assistants, in conformity with the instructions of the initial constitution or in regular temporary establishment shall rank junior to the latter. We, therefore, direct that the seniority of such Assistants shall be adjusted and the seniority list corrected accordingly. T his will, however, not affect the cases of these Assistants who are already promoted and confirmed in a higher rank prior to the date of thisare, however, unable to hold that such admissions, if any, which are mere expression of opinion limited to the context and also being rather vague hopes, not specific assurances, are binding on the Government to create an estoppel. | 1 | 4,609 | 935 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
Office Memorandum of 1971 (Annexure 1), simply because it is not in conformity with the Office Memorandum of June 22, 1949. Besides, it is stated in the counter-affidavit of the Deputy Secretary (page 176 of the record) that "the Office Memorandum of 1971 is no longer operative. " We have seen that the rule of length of continuous service has been adopted in the case of different categories reconstituted in the Service in accordance with the administrative instructions of the Home Ministry issued after consultation with the Union Public Service Commission. The grievance that the said Office Memorandum should have been applied to all the temporary employees without the requirement of their being eligible in accordance with other instructions is without any foundation and cannot be upheld. A regular set of separate instructions governed the Service the existence of which cannot be explained if the Office Memorandum of June 22, 1949, alone were applicable, de hors these other instructions.It is further contended that rule 18 of the Rules is invalid in so far as it protects the seniority of the Assistants already observed violating the rule of continuous length of service amongst the entire group as a whole. This argument is untenable as the rule of continuous length of service cannot be invoked unless the temporary Assistants are absorbed in the Service in accordance, with the instructions which are valid. The entire group of temporary Assistants cannot claim seniority by the rule of length of continuous service without prior compliance with the conditions laid down under the instructions. Rule 1 8 is, therefore, not violative of article 14 or article 16 of, the Constitution on the score o f giving effect to the earlier or other instructions which are not found to be otherwise objectionable.That leaves one more question to be resolved, that is, with reference to the direct recruits. Once the temporary Assistants have been abs orbed in the service after they are found to be eligible in accordance with the instructions their claim for seniority cannot be superseded by the direct recruits if appointed after the formers absorption in the Service. This conclusion is based on the following factors:-Although the Scheme was made in July 1948 it was not enforced until November 1951. Even then there was no direct recruitment until 1956. The reasons for delaying direct recruitment can be found from a perusal of paragraph 15 of the 1948 Scheme itself, that it is essential from the point of view alike of economy and efficiency that as large a proportion is possible of the members of the service should be recruited on a permanent basis. If the Authorised permanent strength is reduced, effect should be given to such reduction by equivalent reduction in the following triennium of the rate of direct recruitment to the Service. It was, therefore, not the intention of the scheme to prejudice the seniority of the Assistants after their absorption in the Service nor such an intention was evident in the explanatory memorandum annexed to the Office Memorandum of October 25, 1948. In para 11 of the latter Memorandum it is unambiguously stated the "reinforcement is not required at the lowest level, namely the Assistants Grade. Here what is necessary is the weeding out of the poor quality material and the improvement of efficiency of the rest. through permanent tenure and better training d guidances. This is also clear from the instructions for the constitution and maintenance of the regular temporary establishment of Assistants dated August 26, 1968. Para 9 thereof provides that "all permanent vacancies in Grade IV not filled by direct recruitment on the results of Competitive Examination, held by the Union Public Service Commission shall be filled from the Regular Temporary Establishment in the order of Gazetted List" subject to certain provisions with which we are not concerned.It appears the quota, if any, of direct recruitment Was Dot enforced and perhaps for good reasons as noted above, the policy of the Government being different. Administrative instructions, if not carried into effect for obvious and good reasons, cannot confer a right upon entrants on later recruitment to enforce the same to supersede the claims of others already absorbed in the Service in accordance with the appropriate and valid instructions. Nothing was brought to our notice which could justify such a wholesale or en bloc discrimination in favour of those who suddenly enter the same grade of service by direct recruitment. It would, if permitted, be violative of article 16 of the Constitution which should never be overlooked in such cases.We are, therefore, clearly of opinion that the direct recruits who were appointed after the absorption of the Assistants, in conformity with the instructions of the initial constitution or in regular temporary establishment shall rank junior to the latter. We, therefore, direct that the seniority of such Assistants shall be adjusted and the seniority list corrected accordingly. T his will, however, not affect the cases of these Assistants who are already promoted and confirmed in a higher rank prior to the date of this petition.The learned counsel for the respondents strenuously contended that the petition may be dismissed on account of delay and laches. In view of the entire circumstances of the case and the hopes held out by the Government from time to time we are not prepared to accede to this submission. The petitioners also sought to take advantage of what they described as admission in Governments affidavits filed in connection with certain earlier proceedings of similar nature and other admissions in Parliament on behalf of the Government. We, are, however, unable to hold that such admissions, if any, which are mere expression of opinion limited to the context and also being rather vague hopes, not specific assurances, are binding on the Government to create an estoppel. In the view we have taken the case is distinguishable from Union of India and Ors. v. M. Ravi Yarma and Ors. etc. ([1972] 2 S.C.R. 992) principally relied upon by the petitioners.
### Response:
1
### Explanation:
Para 2 of the Office Memorandum as quoted above clearly shows that paragraph 8 which contains the rule of seniority being length of continuous service was in terms applicable to the initial constitution of the grade of Assistants. The said rule of seniority should be taken as "the medal in framing the rules of seniority for other services". This would go to demonstrate that the Office Memorandum of June 22, 1949, is no bar to the Government in making separate provisions for the mode of constitution. and future maintenance of the service of Assistants. There is, therefore, no obligation under the aforesaid Office Memorandum on the part of the Government to enforce a rule of bald length of continuous service irrespective of other considerations then the service was sought to be reorganised and reinforced. As noticed earlier the service had to be reconstituted and the temporary Assistants properly observed keeping in view the question of quality and efficiency as well as at the same where regard being had to accommodate as large number as possible for gradual absorption. In doing so we are unable to hold that the Government has violated the provisions of articles 14 or 16 of the Constitution. The classification under the instructions for the constitution of regular temporary establishment in the manner done cannot be characterised as unreasonable in view of the object for which these had to be introduced in reconstituting the service to ensure security of temporary employees assistant with efficiency in the Service. There is no discrimination whatsoever amongst the equals as such nor any arbitrary exercise of power by the Government. In absence of any statutory rules prior to the Central Secretariat Rules 1962 it was open to the Government in exercise of its executive power to issue administrative instructions with regard to constitution and reorganisation of the Service as long as there is no violation of article 14 or article 16 of the Constitution. Subject to what is observed hereafter, as held above we do not find that the instructions of the Government made from time to time violated any fundamental rights of the petitioners. We should also observe that the various Office Memorandum and instructions including the Civil list of 1962 have not been challenged as invalid with the solitary exception of the Office Memorandum of 1971 (Annexure 1). This Office Memorandum again is based on the Civil List of 1962 the validity of which is not specifically challenged in this Petition. We, therefore, do not find any infirmity in the Office Memorandum of 1971 (Annexure 1), simply because it is not in conformity with the Office Memorandum of June 22, 1949. Besides, it is stated in the counter-affidavit of the Deputy Secretary (page 176 of the record) that "the Office Memorandum of 1971 is no longer operative. " We have seen that the rule of length of continuous service has been adopted in the case of different categories reconstituted in the Service in accordance with the administrative instructions of the Home Ministry issued after consultation with the Union Public Service Commission. The grievance that the said Office Memorandum should have been applied to all the temporary employees without the requirement of their being eligible in accordance with other instructions is without any foundation and cannot be upheld. A regular set of separate instructions governed the Service the existence of which cannot be explained if the Office Memorandum of June 22, 1949, alone were applicable, de hors these other instructions.It is further contended that rule 18 of the Rules is invalid in so far as it protects the seniority of the Assistants already observed violating the rule of continuous length of service amongst the entire group as a whole. This argument is untenable as the rule of continuous length of service cannot be invoked unless the temporary Assistants are absorbed in the Service in accordance, with the instructions which are valid. The entire group of temporary Assistants cannot claim seniority by the rule of length of continuous service without prior compliance with the conditions laid down under the instructions. Ruleis, therefore, not violative of14 or article 16 of the Constitutionon the scoregiving effect to the earlier or other instructions which are not found to be otherwisethe temporary Assistants have been abs orbed in the service after they are found to be eligible in accordance with the instructions their claim for seniority cannot be superseded by the direct recruits if appointed after the formers absorption in theare, therefore, clearly of opinion that the direct recruits who were appointed after the absorption of the Assistants, in conformity with the instructions of the initial constitution or in regular temporary establishment shall rank junior to the latter. We, therefore, direct that the seniority of such Assistants shall be adjusted and the seniority list corrected accordingly. T his will, however, not affect the cases of these Assistants who are already promoted and confirmed in a higher rank prior to the date of thisare, however, unable to hold that such admissions, if any, which are mere expression of opinion limited to the context and also being rather vague hopes, not specific assurances, are binding on the Government to create an estoppel.
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Chimandas Bagomal Sindhi Vs. Jogeshwar And Another | is made by the D.C. that obligation is imposed on the landlord to let the premises to the person anemd in the Order. Having regard to the words used in describing the persons and the categories, it seems plain that the provision contemplated that a person belonging to one of those categories may be entitled to claim its benefit on he ground that accommodation already available to him was patently insufficient or unsuitable. When such a plea is made, the D,C, may have to examine the contentions raised by the landlord against such a plea as well as the claim that the landlord may make for his own personal occupation. The enquiry which would thus become necessary would be in the nature of a quasi-judicial enquiry and the power conferred on the D.C. may have to be exercised in a fair and just manner. We do not think that c. 23(1) as well as cls. 24 and 24A necessarily exclude the cases of person specified in them on the ground that the said person already have an accommodation which they can call their own. Persons their specified would no doubt have a much better claim for accommodation it if is shown that they have no accommodation at all. But even if such persons have accommodation, their claims cannot be rules out on the preliminary ground that the very fact that they have accommodation takes them out of the provisions of the respective clauses. It is quite true that if a person belonging to the specified categories has suitable and sufficient accommodation, he would normally not be entitled to claim the benefit of cl. 23(1). That, however, is a matter to he considered by the Dy. Commissioner on the merits. We, are therefore, satisfied that the High Court was in error in assuming that the provisions of cl. 23(1) and cls. 24 and 24A impliedly postulate that the persons belonging to the respective categories specified by them can receive allotment only if they have no previous accommodation of their own. That being so, we must hold that the appellants case cannot be thrown out merely on the ground that he had other accommodation by virtue of the fact that he was a partner in two concerns to which we have already referred. 16. This conclusion cannot, however, finally dispose of the appeal before us because it seems to us that after the remand Order was passed by Mr. Justice Bhutt, the addl. D.C. has not dealt with the matter in accordance with law as he was required to do. He appears to have taken the view that since a a provisional Order had already been passed, there was "no going back", upon it. He thought that after remand, the scope of the enquiry was confined to the examination of the question as to whether the respondent proved that he needed the premises for his own occupation. It is true that he has incidentally mentioned the fact that the appellant owned a -/4/- share in the business which was carried on in Nagpur, but he has added that the said fact does not preclude him from obtaining a shop for starting a business exclusively of his own. This observation shows that the Addl. D.C. did not properly appreciate the scope, and effect of the provision contained in the relevant clause. Besides, reading the Order as a whole, it is quite clear that he took an unduly narrow view of the limits of the enquiry which he was bound tot hold as a result of the remand Order and that has vitiated his final conclusion. We, therefore think that it is necessary that the matter should be sent back to the Addl. Dy. Commissioner, Nagpur, with a direction that he should consider the case on the merits afresh. We wish to make it clear that the question as to whether the appellant should be given allotment of the premises in question should be determined by the Add. D.C. in the light of the position as it stood on July 15, 1955. We are making this observation because there has been some controversy before us as to whether the appellant has lost his right in the premises belonging to the partnership is alleged to have been dissolved on April 8, 1957. This learned Attorney-General has contended that if the matter has to go back, the Addl. C.D. should be free to confide the subsequent events that have taken place, and the appellant?s case should, therefore, be dealt with on the basis that he has no longer any shares in the said partnership. We are not inclined to accept this contention. The fact that the present proceedings have been protracted would not entitle the appellant to ask the Addl. D.C. to take subsequent events into account. It is clear that the dissolution of the partnership took place long after the appellant obtain the provisional allotment from the Add. D.C. and it is by no means clear that if the Addl D.C. had been then told that the appellant had a place of business Or his own, he would have granted accommodation to him in the present premises on the same day that he moved him in that behalf. We are satisfied that the question about the propriety and validity of the said provisional Order must be judged in the light of the facts as they obtained on that day. 17. Mr. Kherdekar for the respondent wanted to argue before us that under Cl. 2(2) the appellant was not a displaced person on that day and he has relied on the fact that the appellant had been carrying on business in several places in India since 1945. This point has not been considered either by the Addl. D.C or the High Court. If so advised, the respondent may take this point before the Addl. D.C. and we have no doubt that if raised, it would be dealt with by the Addl. D.C. in accordance with law. | 1[ds]14. It may be conceded that prima facie facie the view taken by the High Court appears to be attractive. It does appear to be reasonable that provisions of the kind contained in Chapter III would normally be excepted to assist persons of specified categories to obtain accommodation and that would impliedly postulate that such person have no accommodation which they can claim their own. If the words of the relevant provision are ambiguous, or if their effect can reasonably be said to be a matter of doubt, it may be permissible to construe the said provisions in the light of the assumption made by the High Court. But, are the words of the relevant provision in any sense ambiguous, or is the effect of those words doubtful. In our opinion, the answer to these questions must be in the negative15. Clause 23 (1) refers to the person in the specified categories, and empowers the D.C. to make an Order of allotment in their favour. There are no terms of limitation qualifying the said person, and the scheme of the relevant provisions does not seem to contemplate any such limitation. It is significant that the said person are not entitled as a matter of right to an Order of allotment. What cl. 23(1) does is to confer power on the D.C. to make an Order of allotment if he thought is expedient, just or fair to do so in a particular case, it is only where an Order is made by the D.C. that obligation is imposed on the landlord to let the premises to the person anemd in the Order. Having regard to the words used in describing the persons and the categories, it seems plain that the provision contemplated that a person belonging to one of those categories may be entitled to claim its benefit on he ground that accommodation already available to him was patently insufficient or unsuitable. When such a plea is made, the D,C, may have to examine the contentions raised by the landlord against such a plea as well as the claim that the landlord may make for his own personal occupation. The enquiry which would thus become necessary would be in the nature of a quasi-judicial enquiry and the power conferred on the D.C. may have to be exercised in a fair and just manner. We do not think that c. 23(1) as well as cls. 24 and 24A necessarily exclude the cases of person specified in them on the ground that the said person already have an accommodation which they can call their own. Persons their specified would no doubt have a much better claim for accommodation it if is shown that they have no accommodation at all. But even if such persons have accommodation, their claims cannot be rules out on the preliminary ground that the very fact that they have accommodation takes them out of the provisions of the respective clauses. It is quite true that if a person belonging to the specified categories has suitable and sufficient accommodation, he would normally not be entitled to claim the benefit of cl. 23(1). That, however, is a matter to he considered by the Dy. Commissioner on the merits. We, are therefore, satisfied that the High Court was in error in assuming that the provisions of cl. 23(1) and cls. 24 and 24A impliedly postulate that the persons belonging to the respective categories specified by them can receive allotment only if they have no previous accommodation of their own. That being so, we must hold that the appellants case cannot be thrown out merely on the ground that he had other accommodation by virtue of the fact that he was a partner in two concerns to which we have already referred16. This conclusion cannot, however, finally dispose of the appeal before us because it seems to us that after the remand Order was passed by Mr. Justice Bhutt, the addl. D.C. has not dealt with the matter in accordance with law as he was required to do. He appears to have taken the view that since a a provisional Order had already been passed, there was "no going back", upon it. He thought that after remand, the scope of the enquiry was confined to the examination of the question as to whether the respondent proved that he needed the premises for his own occupation. It is true that he has incidentally mentioned the fact that the appellant owned a -/4/- share in the business which was carried on in Nagpur, but he has added that the said fact does not preclude him from obtaining a shop for starting a business exclusively of his own. This observation shows that the Addl. D.C. did not properly appreciate the scope, and effect of the provision contained in the relevant clause. Besides, reading the Order as a whole, it is quite clear that he took an unduly narrow view of the limits of the enquiry which he was bound tot hold as a result of the remand Order and that has vitiated his final conclusion. We, therefore think that it is necessary that the matter should be sent back to the Addl. Dy. Commissioner, Nagpur, with a direction that he should consider the case on the merits afresh. We wish to make it clear that the question as to whether the appellant should be given allotment of the premises in question should be determined by the Add. D.C. in the light of the position as it stood on July 15, 1955. We are making this observation because there has been some controversy before us as to whether the appellant has lost his right in the premises belonging to the partnership is alleged to have been dissolved on April 8, 1957. This learned Attorney-General has contended that if the matter has to go back, the Addl. C.D. should be free to confide the subsequent events that have taken place, and the appellant?s case should, therefore, be dealt with on the basis that he has no longer any shares in the said partnership. We are not inclined to accept this contention. The fact that the present proceedings have been protracted would not entitle the appellant to ask the Addl. D.C. to take subsequent events into account. It is clear that the dissolution of the partnership took place long after the appellant obtain the provisional allotment from the Add. D.C. and it is by no means clear that if the Addl D.C. had been then told that the appellant had a place of business Or his own, he would have granted accommodation to him in the present premises on the same day that he moved him in that behalf. We are satisfied that the question about the propriety and validity of the said provisional Order must be judged in the light of the facts as they obtained on that day. | 1 | 3,524 | 1,266 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
is made by the D.C. that obligation is imposed on the landlord to let the premises to the person anemd in the Order. Having regard to the words used in describing the persons and the categories, it seems plain that the provision contemplated that a person belonging to one of those categories may be entitled to claim its benefit on he ground that accommodation already available to him was patently insufficient or unsuitable. When such a plea is made, the D,C, may have to examine the contentions raised by the landlord against such a plea as well as the claim that the landlord may make for his own personal occupation. The enquiry which would thus become necessary would be in the nature of a quasi-judicial enquiry and the power conferred on the D.C. may have to be exercised in a fair and just manner. We do not think that c. 23(1) as well as cls. 24 and 24A necessarily exclude the cases of person specified in them on the ground that the said person already have an accommodation which they can call their own. Persons their specified would no doubt have a much better claim for accommodation it if is shown that they have no accommodation at all. But even if such persons have accommodation, their claims cannot be rules out on the preliminary ground that the very fact that they have accommodation takes them out of the provisions of the respective clauses. It is quite true that if a person belonging to the specified categories has suitable and sufficient accommodation, he would normally not be entitled to claim the benefit of cl. 23(1). That, however, is a matter to he considered by the Dy. Commissioner on the merits. We, are therefore, satisfied that the High Court was in error in assuming that the provisions of cl. 23(1) and cls. 24 and 24A impliedly postulate that the persons belonging to the respective categories specified by them can receive allotment only if they have no previous accommodation of their own. That being so, we must hold that the appellants case cannot be thrown out merely on the ground that he had other accommodation by virtue of the fact that he was a partner in two concerns to which we have already referred. 16. This conclusion cannot, however, finally dispose of the appeal before us because it seems to us that after the remand Order was passed by Mr. Justice Bhutt, the addl. D.C. has not dealt with the matter in accordance with law as he was required to do. He appears to have taken the view that since a a provisional Order had already been passed, there was "no going back", upon it. He thought that after remand, the scope of the enquiry was confined to the examination of the question as to whether the respondent proved that he needed the premises for his own occupation. It is true that he has incidentally mentioned the fact that the appellant owned a -/4/- share in the business which was carried on in Nagpur, but he has added that the said fact does not preclude him from obtaining a shop for starting a business exclusively of his own. This observation shows that the Addl. D.C. did not properly appreciate the scope, and effect of the provision contained in the relevant clause. Besides, reading the Order as a whole, it is quite clear that he took an unduly narrow view of the limits of the enquiry which he was bound tot hold as a result of the remand Order and that has vitiated his final conclusion. We, therefore think that it is necessary that the matter should be sent back to the Addl. Dy. Commissioner, Nagpur, with a direction that he should consider the case on the merits afresh. We wish to make it clear that the question as to whether the appellant should be given allotment of the premises in question should be determined by the Add. D.C. in the light of the position as it stood on July 15, 1955. We are making this observation because there has been some controversy before us as to whether the appellant has lost his right in the premises belonging to the partnership is alleged to have been dissolved on April 8, 1957. This learned Attorney-General has contended that if the matter has to go back, the Addl. C.D. should be free to confide the subsequent events that have taken place, and the appellant?s case should, therefore, be dealt with on the basis that he has no longer any shares in the said partnership. We are not inclined to accept this contention. The fact that the present proceedings have been protracted would not entitle the appellant to ask the Addl. D.C. to take subsequent events into account. It is clear that the dissolution of the partnership took place long after the appellant obtain the provisional allotment from the Add. D.C. and it is by no means clear that if the Addl D.C. had been then told that the appellant had a place of business Or his own, he would have granted accommodation to him in the present premises on the same day that he moved him in that behalf. We are satisfied that the question about the propriety and validity of the said provisional Order must be judged in the light of the facts as they obtained on that day. 17. Mr. Kherdekar for the respondent wanted to argue before us that under Cl. 2(2) the appellant was not a displaced person on that day and he has relied on the fact that the appellant had been carrying on business in several places in India since 1945. This point has not been considered either by the Addl. D.C or the High Court. If so advised, the respondent may take this point before the Addl. D.C. and we have no doubt that if raised, it would be dealt with by the Addl. D.C. in accordance with law.
### Response:
1
### Explanation:
categories, and empowers the D.C. to make an Order of allotment in their favour. There are no terms of limitation qualifying the said person, and the scheme of the relevant provisions does not seem to contemplate any such limitation. It is significant that the said person are not entitled as a matter of right to an Order of allotment. What cl. 23(1) does is to confer power on the D.C. to make an Order of allotment if he thought is expedient, just or fair to do so in a particular case, it is only where an Order is made by the D.C. that obligation is imposed on the landlord to let the premises to the person anemd in the Order. Having regard to the words used in describing the persons and the categories, it seems plain that the provision contemplated that a person belonging to one of those categories may be entitled to claim its benefit on he ground that accommodation already available to him was patently insufficient or unsuitable. When such a plea is made, the D,C, may have to examine the contentions raised by the landlord against such a plea as well as the claim that the landlord may make for his own personal occupation. The enquiry which would thus become necessary would be in the nature of a quasi-judicial enquiry and the power conferred on the D.C. may have to be exercised in a fair and just manner. We do not think that c. 23(1) as well as cls. 24 and 24A necessarily exclude the cases of person specified in them on the ground that the said person already have an accommodation which they can call their own. Persons their specified would no doubt have a much better claim for accommodation it if is shown that they have no accommodation at all. But even if such persons have accommodation, their claims cannot be rules out on the preliminary ground that the very fact that they have accommodation takes them out of the provisions of the respective clauses. It is quite true that if a person belonging to the specified categories has suitable and sufficient accommodation, he would normally not be entitled to claim the benefit of cl. 23(1). That, however, is a matter to he considered by the Dy. Commissioner on the merits. We, are therefore, satisfied that the High Court was in error in assuming that the provisions of cl. 23(1) and cls. 24 and 24A impliedly postulate that the persons belonging to the respective categories specified by them can receive allotment only if they have no previous accommodation of their own. That being so, we must hold that the appellants case cannot be thrown out merely on the ground that he had other accommodation by virtue of the fact that he was a partner in two concerns to which we have already referred16. This conclusion cannot, however, finally dispose of the appeal before us because it seems to us that after the remand Order was passed by Mr. Justice Bhutt, the addl. D.C. has not dealt with the matter in accordance with law as he was required to do. He appears to have taken the view that since a a provisional Order had already been passed, there was "no going back", upon it. He thought that after remand, the scope of the enquiry was confined to the examination of the question as to whether the respondent proved that he needed the premises for his own occupation. It is true that he has incidentally mentioned the fact that the appellant owned a -/4/- share in the business which was carried on in Nagpur, but he has added that the said fact does not preclude him from obtaining a shop for starting a business exclusively of his own. This observation shows that the Addl. D.C. did not properly appreciate the scope, and effect of the provision contained in the relevant clause. Besides, reading the Order as a whole, it is quite clear that he took an unduly narrow view of the limits of the enquiry which he was bound tot hold as a result of the remand Order and that has vitiated his final conclusion. We, therefore think that it is necessary that the matter should be sent back to the Addl. Dy. Commissioner, Nagpur, with a direction that he should consider the case on the merits afresh. We wish to make it clear that the question as to whether the appellant should be given allotment of the premises in question should be determined by the Add. D.C. in the light of the position as it stood on July 15, 1955. We are making this observation because there has been some controversy before us as to whether the appellant has lost his right in the premises belonging to the partnership is alleged to have been dissolved on April 8, 1957. This learned Attorney-General has contended that if the matter has to go back, the Addl. C.D. should be free to confide the subsequent events that have taken place, and the appellant?s case should, therefore, be dealt with on the basis that he has no longer any shares in the said partnership. We are not inclined to accept this contention. The fact that the present proceedings have been protracted would not entitle the appellant to ask the Addl. D.C. to take subsequent events into account. It is clear that the dissolution of the partnership took place long after the appellant obtain the provisional allotment from the Add. D.C. and it is by no means clear that if the Addl D.C. had been then told that the appellant had a place of business Or his own, he would have granted accommodation to him in the present premises on the same day that he moved him in that behalf. We are satisfied that the question about the propriety and validity of the said provisional Order must be judged in the light of the facts as they obtained on that day.
|
PATRAM Vs. GRAM PANCHAYAT KATWAR & ORS | sub-clause (v) of clause (5) of Section 2(g). We must understand what is meant by the terms taraf, patti, panna and thola. To understand this distinction, one must also understand what is shamilat deh land. The word shamilat basically means held in joint possession and undivided lands which are part and parcel of a village. When these lands are held commonly by a village proprietary body, they are described as shamilat deh land. 9. Taraf, patti, panna and thola are different terms but have a common strain or similarity running through them. These descriptions are of land of a group of villagers based on clan, caste, sect, area, etc. In British India, the village was divided into different pattis/sections based upon caste, religion, occupation, etc. of the persons residing in the village. Patti is described as division of land into separate portions or strips in a village. These locations are known as pattis. After independence since the caste system has been constitutionally abolished, these classifications refer to different hamlets/clusters where villagers reside in groups irrespective of their caste. This may be true in law but not in fact, because unfortunately even today, in most villages, ghettoization continues and the people of different communities, castes and religions live in their earmarked areas or pattis. Patti is basically, therefore, a small division of the village. The terms taraf, panna and thola may be different but are akin to patti and also deal with community of villagers residing separately. Therefore, they have virtually the same meaning. 10. If we accept that there is virtually no difference between taraf, patti, panna and thola then the task of interpretation becomes much easier. It is also apparent that a patti can normally be created out of the shamilat land only when a group of people enjoy some portion of the land out of the bigger common shareholding that is a patti. The definition of shamilat deh in Section 2(g) of the Act includes all lands descried as shamilat deh or charand excluding abadi land. In clause (3) of Section 2(g) there is a comma after the word shamilat whereas such comma is missing in sub-clause (v) of clause (5) of Section 2(g). We are of the view that there seems to be an error rather than a deliberate non-use of the comma. We are of this view because clause (3) provides that land described as shamilat, tarafs, patties pannas and tholas, are to be treated as shamilat deh land only if they are used for the common purpose of the village. This clearly implies that if the land described as shamilat, taraf, patti, panna and thola were not being used for the common purpose, it would not fall within the meaning of shamilat deh. 11. Clause (v) is the negative portion of the definition which provides that certain lands will not be treated as shamilat deh and these are those land which have described as shamilat, taraf, patti, panna and thola in the revenue record and not used according to the revenue record for the benefit of the village community or a part thereof or for the common purpose of the village. In our view, the absence of the comma after the word shamilat is not of any great significance. In fact, it appears that the comma has been left out by mistake. We may also note that we find that in various publications, there is a comma between the words shamilat and taraf. However, there is no comma in the official publication in the Gazette notification. Keeping in view, what we have held above, it appears to us that the absence of a comma is a mistake and in fact according to us, a comma should be read after shamilat and before taraf in the latter part of the section also. The word shamilat has to be read with all four- taraf, patti, panna and thola. A land can be shamilat deh only if it is shamilat taraf, shamilat patti, shamilat panna, or shamilat thola. In case the word shamilat is missing from any of these four terms, then the land cannot be said to be belonging to a group of people and could never become shamilat deh land. 12. The purpose of the section which defines shamilat deh is that the land described as shamilat, taraf, patti, panna and thola not used for the benefit of the village community will not be treated as shamilat deh. Clause (3) of Section 2(g) is identical. The purpose is that the land which is described in revenue records as shamilat, taraf, patti, panna and thola and used for the benefit of the entire village community or a part thereof only would vest in the village proprietary body. The words part thereof have been used with a specific purpose in the background of the meaning of patti which we have dealt with in detail above. Even if the land is being utilised for the common purpose of the inhabitants of that taraf, patti, panna and thola, it would be shamilat deh even if it is not used for the benefit of the entire village. However, if the land is not used either for the benefit of the entire village or for the part of the village community which comprises the patti then the land, in our opinion, cannot be said to be shamilat deh land within the meaning of Section 2(g). 13. From the revenue records produced, we find that the land has been shown as Shamlat Patti Dhera & Khubi. Dhera & Khubi are the ancestors of the appellant(s). The possession is shown as that of proprietors/self-cultivators and an entry was made in favour of the Panchayat Deh in 1987-1988. The land was always shown to be Shamlat Patti Dhera & Khubi and in the cultivation of the appellant(s) or his ancestors. Moreover, the land was never shown to be used for the benefit of the entire village community or even for a part of the community. | 1[ds]10. If we accept that there is virtually no difference between taraf, patti, panna and thola then the task of interpretation becomes much easier. It is also apparent that a patti can normally be created out of the shamilat land only when a group of people enjoy some portion of the land out of the bigger common shareholding that is a patti. The definition of shamilat deh in Section 2(g) of the Act includes all lands descried as shamilat deh or charand excluding abadi land. In clause (3) of Section 2(g) there is a comma after the word shamilat whereas such comma is missing in sub-clause (v) of clause (5) of Section 2(g). We are of the view that there seems to be an error rather than a deliberate non-use of the comma. We are of this view because clause (3) provides that land described as shamilat, tarafs, patties pannas and tholas, are to be treated as shamilat deh land only if they are used for the common purpose of the village. This clearly implies that if the land described as shamilat, taraf, patti, panna and thola were not being used for the common purpose, it would not fall within the meaning of shamilat deh11. Clause (v) is the negative portion of the definition which provides that certain lands will not be treated as shamilat deh and these are those land which have described as shamilat, taraf, patti, panna and thola in the revenue record and not used according to the revenue record for the benefit of the village community or a part thereof or for the common purpose of the village. In our view, the absence of the comma after the word shamilat is not of any great significance. In fact, it appears that the comma has been left out by mistake. We may also note that we find that in various publications, there is a comma between the words shamilat and taraf. However, there is no comma in the official publication in the Gazette notification. Keeping in view, what we have held above, it appears to us that the absence of a comma is a mistake and in fact according to us, a comma should be read after shamilat and before taraf in the latter part of the section also. The word shamilat has to be read with all four- taraf, patti, panna and thola. A land can be shamilat deh only if it is shamilat taraf, shamilat patti, shamilat panna, or shamilat thola. In case the word shamilat is missing from any of these four terms, then the land cannot be said to be belonging to a group of people and could never become shamilat deh land12. The purpose of the section which defines shamilat deh is that the land described as shamilat, taraf, patti, panna and thola not used for the benefit of the village community will not be treated as shamilat deh. Clause (3) of Section 2(g) is identical. The purpose is that the land which is described in revenue records as shamilat, taraf, patti, panna and thola and used for the benefit of the entire village community or a part thereof only would vest in the village proprietary body. The words part thereof have been used with a specific purpose in the background of the meaning of patti which we have dealt with in detail above. Even if the land is being utilised for the common purpose of the inhabitants of that taraf, patti, panna and thola, it would be shamilat deh even if it is not used for the benefit of the entire village. However, if the land is not used either for the benefit of the entire village or for the part of the village community which comprises the patti then the land, in our opinion, cannot be said to be shamilat deh land within the meaning of Section 2(g)13. From the revenue records produced, we find that the land has been shown as Shamlat Patti Dhera & Khubi. Dhera & Khubi are the ancestors of the appellant(s). The possession is shown as that of proprietors/self-cultivators and an entry was made in favour of the Panchayat Deh in 1987-1988. The land was always shown to be Shamlat Patti Dhera & Khubi and in the cultivation of the appellant(s) or his ancestors. Moreover, the land was never shown to be used for the benefit of the entire village community or even for a part of the community. | 1 | 2,446 | 851 | ### 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:
sub-clause (v) of clause (5) of Section 2(g). We must understand what is meant by the terms taraf, patti, panna and thola. To understand this distinction, one must also understand what is shamilat deh land. The word shamilat basically means held in joint possession and undivided lands which are part and parcel of a village. When these lands are held commonly by a village proprietary body, they are described as shamilat deh land. 9. Taraf, patti, panna and thola are different terms but have a common strain or similarity running through them. These descriptions are of land of a group of villagers based on clan, caste, sect, area, etc. In British India, the village was divided into different pattis/sections based upon caste, religion, occupation, etc. of the persons residing in the village. Patti is described as division of land into separate portions or strips in a village. These locations are known as pattis. After independence since the caste system has been constitutionally abolished, these classifications refer to different hamlets/clusters where villagers reside in groups irrespective of their caste. This may be true in law but not in fact, because unfortunately even today, in most villages, ghettoization continues and the people of different communities, castes and religions live in their earmarked areas or pattis. Patti is basically, therefore, a small division of the village. The terms taraf, panna and thola may be different but are akin to patti and also deal with community of villagers residing separately. Therefore, they have virtually the same meaning. 10. If we accept that there is virtually no difference between taraf, patti, panna and thola then the task of interpretation becomes much easier. It is also apparent that a patti can normally be created out of the shamilat land only when a group of people enjoy some portion of the land out of the bigger common shareholding that is a patti. The definition of shamilat deh in Section 2(g) of the Act includes all lands descried as shamilat deh or charand excluding abadi land. In clause (3) of Section 2(g) there is a comma after the word shamilat whereas such comma is missing in sub-clause (v) of clause (5) of Section 2(g). We are of the view that there seems to be an error rather than a deliberate non-use of the comma. We are of this view because clause (3) provides that land described as shamilat, tarafs, patties pannas and tholas, are to be treated as shamilat deh land only if they are used for the common purpose of the village. This clearly implies that if the land described as shamilat, taraf, patti, panna and thola were not being used for the common purpose, it would not fall within the meaning of shamilat deh. 11. Clause (v) is the negative portion of the definition which provides that certain lands will not be treated as shamilat deh and these are those land which have described as shamilat, taraf, patti, panna and thola in the revenue record and not used according to the revenue record for the benefit of the village community or a part thereof or for the common purpose of the village. In our view, the absence of the comma after the word shamilat is not of any great significance. In fact, it appears that the comma has been left out by mistake. We may also note that we find that in various publications, there is a comma between the words shamilat and taraf. However, there is no comma in the official publication in the Gazette notification. Keeping in view, what we have held above, it appears to us that the absence of a comma is a mistake and in fact according to us, a comma should be read after shamilat and before taraf in the latter part of the section also. The word shamilat has to be read with all four- taraf, patti, panna and thola. A land can be shamilat deh only if it is shamilat taraf, shamilat patti, shamilat panna, or shamilat thola. In case the word shamilat is missing from any of these four terms, then the land cannot be said to be belonging to a group of people and could never become shamilat deh land. 12. The purpose of the section which defines shamilat deh is that the land described as shamilat, taraf, patti, panna and thola not used for the benefit of the village community will not be treated as shamilat deh. Clause (3) of Section 2(g) is identical. The purpose is that the land which is described in revenue records as shamilat, taraf, patti, panna and thola and used for the benefit of the entire village community or a part thereof only would vest in the village proprietary body. The words part thereof have been used with a specific purpose in the background of the meaning of patti which we have dealt with in detail above. Even if the land is being utilised for the common purpose of the inhabitants of that taraf, patti, panna and thola, it would be shamilat deh even if it is not used for the benefit of the entire village. However, if the land is not used either for the benefit of the entire village or for the part of the village community which comprises the patti then the land, in our opinion, cannot be said to be shamilat deh land within the meaning of Section 2(g). 13. From the revenue records produced, we find that the land has been shown as Shamlat Patti Dhera & Khubi. Dhera & Khubi are the ancestors of the appellant(s). The possession is shown as that of proprietors/self-cultivators and an entry was made in favour of the Panchayat Deh in 1987-1988. The land was always shown to be Shamlat Patti Dhera & Khubi and in the cultivation of the appellant(s) or his ancestors. Moreover, the land was never shown to be used for the benefit of the entire village community or even for a part of the community.
### Response:
1
### Explanation:
10. If we accept that there is virtually no difference between taraf, patti, panna and thola then the task of interpretation becomes much easier. It is also apparent that a patti can normally be created out of the shamilat land only when a group of people enjoy some portion of the land out of the bigger common shareholding that is a patti. The definition of shamilat deh in Section 2(g) of the Act includes all lands descried as shamilat deh or charand excluding abadi land. In clause (3) of Section 2(g) there is a comma after the word shamilat whereas such comma is missing in sub-clause (v) of clause (5) of Section 2(g). We are of the view that there seems to be an error rather than a deliberate non-use of the comma. We are of this view because clause (3) provides that land described as shamilat, tarafs, patties pannas and tholas, are to be treated as shamilat deh land only if they are used for the common purpose of the village. This clearly implies that if the land described as shamilat, taraf, patti, panna and thola were not being used for the common purpose, it would not fall within the meaning of shamilat deh11. Clause (v) is the negative portion of the definition which provides that certain lands will not be treated as shamilat deh and these are those land which have described as shamilat, taraf, patti, panna and thola in the revenue record and not used according to the revenue record for the benefit of the village community or a part thereof or for the common purpose of the village. In our view, the absence of the comma after the word shamilat is not of any great significance. In fact, it appears that the comma has been left out by mistake. We may also note that we find that in various publications, there is a comma between the words shamilat and taraf. However, there is no comma in the official publication in the Gazette notification. Keeping in view, what we have held above, it appears to us that the absence of a comma is a mistake and in fact according to us, a comma should be read after shamilat and before taraf in the latter part of the section also. The word shamilat has to be read with all four- taraf, patti, panna and thola. A land can be shamilat deh only if it is shamilat taraf, shamilat patti, shamilat panna, or shamilat thola. In case the word shamilat is missing from any of these four terms, then the land cannot be said to be belonging to a group of people and could never become shamilat deh land12. The purpose of the section which defines shamilat deh is that the land described as shamilat, taraf, patti, panna and thola not used for the benefit of the village community will not be treated as shamilat deh. Clause (3) of Section 2(g) is identical. The purpose is that the land which is described in revenue records as shamilat, taraf, patti, panna and thola and used for the benefit of the entire village community or a part thereof only would vest in the village proprietary body. The words part thereof have been used with a specific purpose in the background of the meaning of patti which we have dealt with in detail above. Even if the land is being utilised for the common purpose of the inhabitants of that taraf, patti, panna and thola, it would be shamilat deh even if it is not used for the benefit of the entire village. However, if the land is not used either for the benefit of the entire village or for the part of the village community which comprises the patti then the land, in our opinion, cannot be said to be shamilat deh land within the meaning of Section 2(g)13. From the revenue records produced, we find that the land has been shown as Shamlat Patti Dhera & Khubi. Dhera & Khubi are the ancestors of the appellant(s). The possession is shown as that of proprietors/self-cultivators and an entry was made in favour of the Panchayat Deh in 1987-1988. The land was always shown to be Shamlat Patti Dhera & Khubi and in the cultivation of the appellant(s) or his ancestors. Moreover, the land was never shown to be used for the benefit of the entire village community or even for a part of the community.
|
Saroj G. Podar & Others Vs. | but to accept whatever is offered to them. What is important is that during all these 17 years, no attempt was ever made to even consider the revival, may be partially. All the plants, machineries and other equipments necessary for revival were sold out and after everything was sold out and after everyone was exhausted and the only asset which remained was land cleared of all machineries, etc., the scheme was propounded. We are not impressed by the argument of Mr.Manohar that the agreement between Podars and Bhaveshwar Estate Pvt. Ltd. is irrelevant. We think that on the contrary, the entire scheme propounded by Podars is completely dependent and, in facts based on the agreement of Podars with Bhaveshwar Estate Pvt. Ltd. The agreement, read in its true colours, means nothing except that Bhaveshwar Estate Pvt Ltd. is purchasing the entire equity shareholding of Podars. Now that shareholding can be understood in the form of whatever assets the company would have and the only solitary asset which the company has is large land situate at a prima locality at Mumbai. In simple terms, instead of bidding at the auction, Bhaveshwar Estate Pvt. Ltd. want to purchase this land from Podars for Rs.80 crores. The very offer and the very agreement suggests to us that the land, even in the position as it is, is capable of fetching a huge amount. In fairness, we must state here that the valuation report which was kept and sealed in a cover was opened by us and the valuation made by the Valuer is about Rs.20 crores. However, we are of the view that the very fact that Bhaveshwar Estate Pvt. Ltd. is, in substance, offering about Rs.80 crores is indication enough regarding the true value of the land and the report regarding valuation being not reliable. Any semblance of revival of the company, in our opinion, must include the interest and employment of the workmen who have been thrown out of employment 17 year ago. However, the scheme, as we see it, is nothing but selling the land without public auction to a person dealing in real estates and to develop the land at a real estate. It is difficult for us to hold that this is revival on the slender thread of one of those several objects in the Memorandum of Association of the company.28.As we are not impressed by this so-called revival of the corporate existence of the company, similarly, we are also not impressed by the alleged difficulties created by the industrial location policy. Our reading of the resolutions is that no new Mill or expansion of the existing Mills may be permitted. But that would never prohibit existing Mills or the revival thereof. We are of the view that somehow the matters were allowed to drift. All machineries, equipments, plant and everything required for the running of the Mills were allowed to be sold and after 17 years when nothing but the land remains, the scheme has been propounded for the alleged revival of the corporate existence which, in reality, is nothing but a scheme for exploiting the land for commercial purposes. We are aware that this would be the result even if the land is auctioned. However, in that event, there will be bidders and we see no justification why under the guise of the scheme, Bhaveshwar Estate Pvt. Ltd. should get preferential treatment. In this behalf, it is extremely relevant that there is no indication whatsoever as to what alleged employment and revenue would be generated by the aforesaid scheme. Even the exact liabilities of the company are not determined. The claims are not invited and the liabilities are not finalized. The exact entitlement of the workmen is also not finalized and at no stage, the Court had applied its mind as to whether the workmen are being paid their total dues. Even the exact number of workmen was not determined and we find that initially the scheme suggested that there were 77 workmen which number has, ultimately, grown to more than six to seven hundred. Under the circumstances, the fact that no settled list of creditors is prepared and as the exact total entitlement of creditors as well as the workmen is not determined, the scheme cannot be approved on the hypothesis that all lawful claims of everybody concerned would be satisfied.29.The scheme, in our opinion, is nothing but a scheme to sell the land and, as such, we find that the finding of the learned Judge that the scheme is not genuine and not bona fide is clearly sustainable.30.We cannot leave this case without certain observations regarding the manner in which the Liquidator has gone about the matter. We were rather surprised to hear from the learned counsel for the Liquidator that, as per some practice, the Liquidator first realises the amount and, thereafter, he invites the claims. The procedure is not only absolutely improper but inherently dangerous. For seventeen years no claims have been invited. May be there are certain poor workmen who would not survive such a period to stake their claim. What is important is that in such matters, the Liquidator must invite claims with absolute expediency within a reasonable time, must keep the Court informed about all the liabilities and the prepare settled list of all creditors. That is also very necessary for the purpose of determining the reasonableness of any offers that may be made to the Court. We are also shocked to see, the casual manner in which the Liquidator has referred to the offers received by him. It was pointed out to us that there is no offer by Videocon. When we enquired with the learned counsel appearing for the Liquidator, his only explanation was that the Liquidator was unable to give any explanation as to why he stated that Videocon had not given any offer.31.We have found that in this matter, nothing is finalized. We direct that the Liquidator should move in the matter with utmost despatch. | 0[ds]We do not think it necessary to dwell into the details of the agreement between Bhaveshwar Estate Pvt. Ltd. and Podars as also about the scheme as we have already referred to the required salient features discussed by the learned Judge in the impugned order. Mr.Manohar particularly pointed out that one of the objects as incorporated in the Memorandum of Association of the company is also of dealing in, developing lands and leasing out,do not think it necessary to dwell into the details of the agreement between Bhaveshwar Estate Pvt. Ltd. and Podars as also about the scheme as we have already referred to the required salient features discussed by the learned Judge in the impugned order. Mr.Manohar particularly pointed out that one of the objects as incorporated in the Memorandum of Association of the company is also of dealing in, developing lands and leasing out,is relevant to notice that, admittedly, the company since its inception till the date on which the order of liquidation was passed was exclusively engaged in business of manufacturing and dealing infabrics. Now what is being done, in our opinion, would not amount to genuine revival at all. Revival of the company, Shree Shakti Mills Limited, must mean revival of at least a substantial main business of the company which would include the revival of the business which would give employment to several workmen. The scheme, as we would point out hereafter, in our opinion, is only revival of Podars. It is extremely relevant that the agreement which Podars have entered into with Bhaveshwar Estate Pvt. Ltd. clearly shows that after therevival, Podars go out of the picture totally and Bhaveshwar Estate Pvt. Ltd. would be running therevived company. Bhaveshwar Estate Pvt. Ltd., as the name suggests, would merely develop the land by constructing buildings thereon. We find it difficult to hold that this end result can be called revival of the company. We are in agreement with the learned Judge that therevival of the corporate existence of the company is merely incidental. It is obvious to us that Bhaveshwar Estate Pvt. Ltd. are interested in the company only for the solitary asset which remains, viz., the lands on which constructions can be raised for its commercial or other exploitation. This cannot be a revival in the true sense of the word. What is extremely significant is that although the price of shares may not be directly relevant, in the facts and circumstances of the case, the only asset of the company being the land and that too a huge land at a very prime locality in Mumbai, the fact that Bhaveshwar Estate Pvt. Ltd. are purchasing the shares for an amount of Rs 80 crores is indicative of the price which the land is capable of fetching. We are conscious of the fact that out of the three offers which were referred to by the Liquidator, one of the offers is shown to be nonexistent One is only for Rs.19 crores and the other offer, though for Rs.125 crores, is a conditional offer, the condition being that the Liquidator obtains the renewal of the lease. However, it is extremely relevant to consider that during all these long 17 years, on no occasion there was any serious attempt to call for the offers, much less to consider the same. In our opinion, even the amount of liabilities and dues is not finalised. We are informed that the Liquidator has not bothered during these long 17 years even to invite the claims. We find the manner in which the Liquidator has gone about is rather distressing. It is obvious to us that in such matters, it is extremely essential to invite claims and within a reasonable time to have complete idea and the list of all creditors and the amount which is due to statutory creditors, secured creditors, unsecured creditors, other creditors and especially the workmen That majority of the workmen are supporting the claim does not impress us at all for the simple reason that the workmen in the situation, viz., after being thrown out of employment for the last 17 years have hardly any choice, but to accept whatever is offered to them. What is important is that during all these 17 years, no attempt was ever made to even consider the revival, may be partially. All the plants, machineries and other equipments necessary for revival were sold out and after everything was sold out and after everyone was exhausted and the only asset which remained was land cleared of all machineries, etc., the scheme was propounded. We are not impressed by the argument of Mr.Manohar that the agreement between Podars and Bhaveshwar Estate Pvt. Ltd. is irrelevant. We think that on the contrary, the entire scheme propounded by Podars is completely dependent and, in facts based on the agreement of Podars with Bhaveshwar Estate Pvt. Ltd. The agreement, read in its true colours, means nothing except that Bhaveshwar Estate Pvt Ltd. is purchasing the entire equity shareholding of Podars. Now that shareholding can be understood in the form of whatever assets the company would have and the only solitary asset which the company has is large land situate at a prima locality at Mumbai. In simple terms, instead of bidding at the auction, Bhaveshwar Estate Pvt. Ltd. want to purchase this land from Podars for Rs.80 crores. The very offer and the very agreement suggests to us that the land, even in the position as it is, is capable of fetching a huge amount. In fairness, we must state here that the valuation report which was kept and sealed in a cover was opened by us and the valuation made by the Valuer is about Rs.20 crores. However, we are of the view that the very fact that Bhaveshwar Estate Pvt. Ltd. is, in substance, offering about Rs.80 crores is indication enough regarding the true value of the land and the report regarding valuation being not reliable. Any semblance of revival of the company, in our opinion, must include the interest and employment of the workmen who have been thrown out of employment 17 year ago. However, the scheme, as we see it, is nothing but selling the land without public auction to a person dealing in real estates and to develop the land at a real estate. It is difficult for us to hold that this is revival on the slender thread of one of those several objects in the Memorandum of Association of the company.28.As we are not impressed by thisrevival of the corporate existence of the company, similarly, we are also not impressed by the alleged difficulties created by the industrial location policy. Our reading of the resolutions is that no new Mill or expansion of the existing Mills may be permitted. But that would never prohibit existing Mills or the revival thereof. We are of the view that somehow the matters were allowed to drift. All machineries, equipments, plant and everything required for the running of the Mills were allowed to be sold and after 17 years when nothing but the land remains, the scheme has been propounded for the alleged revival of the corporate existence which, in reality, is nothing but a scheme for exploiting the land for commercial purposes. We are aware that this would be the result even if the land is auctioned. However, in that event, there will be bidders and we see no justification why under the guise of the scheme, Bhaveshwar Estate Pvt. Ltd. should get preferential treatment. In this behalf, it is extremely relevant that there is no indication whatsoever as to what alleged employment and revenue would be generated by the aforesaid scheme. Even the exact liabilities of the company are not determined. The claims are not invited and the liabilities are not finalized. The exact entitlement of the workmen is also not finalized and at no stage, the Court had applied its mind as to whether the workmen are being paid their total dues. Even the exact number of workmen was not determined and we find that initially the scheme suggested that there were 77 workmen which number has, ultimately, grown to more than six to seven hundred. Under the circumstances, the fact that no settled list of creditors is prepared and as the exact total entitlement of creditors as well as the workmen is not determined, the scheme cannot be approved on the hypothesis that all lawful claims of everybody concerned would be satisfied.29.The scheme, in our opinion, is nothing but a scheme to sell the land and, as such, we find that the finding of the learned Judge that the scheme is not genuine and not bona fide is clearly sustainable.30.We cannot leave this case without certain observations regarding the manner in which the Liquidator has gone about the matter. We were rather surprised to hear from the learned counsel for the Liquidator that, as per some practice, the Liquidator first realises the amount and, thereafter, he invites the claims. The procedure is not only absolutely improper but inherently dangerous. For seventeen years no claims have been invited. May be there are certain poor workmen who would not survive such a period to stake their claim. What is important is that in such matters, the Liquidator must invite claims with absolute expediency within a reasonable time, must keep the Court informed about all the liabilities and the prepare settled list of all creditors. That is also very necessary for the purpose of determining the reasonableness of any offers that may be made to the Court. We are also shocked to see, the casual manner in which the Liquidator has referred to the offers received by him. It was pointed out to us that there is no offer by Videocon. When we enquired with the learned counsel appearing for the Liquidator, his only explanation was that the Liquidator was unable to give any explanation as to why he stated that Videocon had not given any offer.31.We have found that in this matter, nothing is finalized. We direct that the Liquidator should move in the matter with utmost despatch. | 0 | 14,417 | 1,851 | ### 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:
but to accept whatever is offered to them. What is important is that during all these 17 years, no attempt was ever made to even consider the revival, may be partially. All the plants, machineries and other equipments necessary for revival were sold out and after everything was sold out and after everyone was exhausted and the only asset which remained was land cleared of all machineries, etc., the scheme was propounded. We are not impressed by the argument of Mr.Manohar that the agreement between Podars and Bhaveshwar Estate Pvt. Ltd. is irrelevant. We think that on the contrary, the entire scheme propounded by Podars is completely dependent and, in facts based on the agreement of Podars with Bhaveshwar Estate Pvt. Ltd. The agreement, read in its true colours, means nothing except that Bhaveshwar Estate Pvt Ltd. is purchasing the entire equity shareholding of Podars. Now that shareholding can be understood in the form of whatever assets the company would have and the only solitary asset which the company has is large land situate at a prima locality at Mumbai. In simple terms, instead of bidding at the auction, Bhaveshwar Estate Pvt. Ltd. want to purchase this land from Podars for Rs.80 crores. The very offer and the very agreement suggests to us that the land, even in the position as it is, is capable of fetching a huge amount. In fairness, we must state here that the valuation report which was kept and sealed in a cover was opened by us and the valuation made by the Valuer is about Rs.20 crores. However, we are of the view that the very fact that Bhaveshwar Estate Pvt. Ltd. is, in substance, offering about Rs.80 crores is indication enough regarding the true value of the land and the report regarding valuation being not reliable. Any semblance of revival of the company, in our opinion, must include the interest and employment of the workmen who have been thrown out of employment 17 year ago. However, the scheme, as we see it, is nothing but selling the land without public auction to a person dealing in real estates and to develop the land at a real estate. It is difficult for us to hold that this is revival on the slender thread of one of those several objects in the Memorandum of Association of the company.28.As we are not impressed by this so-called revival of the corporate existence of the company, similarly, we are also not impressed by the alleged difficulties created by the industrial location policy. Our reading of the resolutions is that no new Mill or expansion of the existing Mills may be permitted. But that would never prohibit existing Mills or the revival thereof. We are of the view that somehow the matters were allowed to drift. All machineries, equipments, plant and everything required for the running of the Mills were allowed to be sold and after 17 years when nothing but the land remains, the scheme has been propounded for the alleged revival of the corporate existence which, in reality, is nothing but a scheme for exploiting the land for commercial purposes. We are aware that this would be the result even if the land is auctioned. However, in that event, there will be bidders and we see no justification why under the guise of the scheme, Bhaveshwar Estate Pvt. Ltd. should get preferential treatment. In this behalf, it is extremely relevant that there is no indication whatsoever as to what alleged employment and revenue would be generated by the aforesaid scheme. Even the exact liabilities of the company are not determined. The claims are not invited and the liabilities are not finalized. The exact entitlement of the workmen is also not finalized and at no stage, the Court had applied its mind as to whether the workmen are being paid their total dues. Even the exact number of workmen was not determined and we find that initially the scheme suggested that there were 77 workmen which number has, ultimately, grown to more than six to seven hundred. Under the circumstances, the fact that no settled list of creditors is prepared and as the exact total entitlement of creditors as well as the workmen is not determined, the scheme cannot be approved on the hypothesis that all lawful claims of everybody concerned would be satisfied.29.The scheme, in our opinion, is nothing but a scheme to sell the land and, as such, we find that the finding of the learned Judge that the scheme is not genuine and not bona fide is clearly sustainable.30.We cannot leave this case without certain observations regarding the manner in which the Liquidator has gone about the matter. We were rather surprised to hear from the learned counsel for the Liquidator that, as per some practice, the Liquidator first realises the amount and, thereafter, he invites the claims. The procedure is not only absolutely improper but inherently dangerous. For seventeen years no claims have been invited. May be there are certain poor workmen who would not survive such a period to stake their claim. What is important is that in such matters, the Liquidator must invite claims with absolute expediency within a reasonable time, must keep the Court informed about all the liabilities and the prepare settled list of all creditors. That is also very necessary for the purpose of determining the reasonableness of any offers that may be made to the Court. We are also shocked to see, the casual manner in which the Liquidator has referred to the offers received by him. It was pointed out to us that there is no offer by Videocon. When we enquired with the learned counsel appearing for the Liquidator, his only explanation was that the Liquidator was unable to give any explanation as to why he stated that Videocon had not given any offer.31.We have found that in this matter, nothing is finalized. We direct that the Liquidator should move in the matter with utmost despatch.
### Response:
0
### Explanation:
any choice, but to accept whatever is offered to them. What is important is that during all these 17 years, no attempt was ever made to even consider the revival, may be partially. All the plants, machineries and other equipments necessary for revival were sold out and after everything was sold out and after everyone was exhausted and the only asset which remained was land cleared of all machineries, etc., the scheme was propounded. We are not impressed by the argument of Mr.Manohar that the agreement between Podars and Bhaveshwar Estate Pvt. Ltd. is irrelevant. We think that on the contrary, the entire scheme propounded by Podars is completely dependent and, in facts based on the agreement of Podars with Bhaveshwar Estate Pvt. Ltd. The agreement, read in its true colours, means nothing except that Bhaveshwar Estate Pvt Ltd. is purchasing the entire equity shareholding of Podars. Now that shareholding can be understood in the form of whatever assets the company would have and the only solitary asset which the company has is large land situate at a prima locality at Mumbai. In simple terms, instead of bidding at the auction, Bhaveshwar Estate Pvt. Ltd. want to purchase this land from Podars for Rs.80 crores. The very offer and the very agreement suggests to us that the land, even in the position as it is, is capable of fetching a huge amount. In fairness, we must state here that the valuation report which was kept and sealed in a cover was opened by us and the valuation made by the Valuer is about Rs.20 crores. However, we are of the view that the very fact that Bhaveshwar Estate Pvt. Ltd. is, in substance, offering about Rs.80 crores is indication enough regarding the true value of the land and the report regarding valuation being not reliable. Any semblance of revival of the company, in our opinion, must include the interest and employment of the workmen who have been thrown out of employment 17 year ago. However, the scheme, as we see it, is nothing but selling the land without public auction to a person dealing in real estates and to develop the land at a real estate. It is difficult for us to hold that this is revival on the slender thread of one of those several objects in the Memorandum of Association of the company.28.As we are not impressed by thisrevival of the corporate existence of the company, similarly, we are also not impressed by the alleged difficulties created by the industrial location policy. Our reading of the resolutions is that no new Mill or expansion of the existing Mills may be permitted. But that would never prohibit existing Mills or the revival thereof. We are of the view that somehow the matters were allowed to drift. All machineries, equipments, plant and everything required for the running of the Mills were allowed to be sold and after 17 years when nothing but the land remains, the scheme has been propounded for the alleged revival of the corporate existence which, in reality, is nothing but a scheme for exploiting the land for commercial purposes. We are aware that this would be the result even if the land is auctioned. However, in that event, there will be bidders and we see no justification why under the guise of the scheme, Bhaveshwar Estate Pvt. Ltd. should get preferential treatment. In this behalf, it is extremely relevant that there is no indication whatsoever as to what alleged employment and revenue would be generated by the aforesaid scheme. Even the exact liabilities of the company are not determined. The claims are not invited and the liabilities are not finalized. The exact entitlement of the workmen is also not finalized and at no stage, the Court had applied its mind as to whether the workmen are being paid their total dues. Even the exact number of workmen was not determined and we find that initially the scheme suggested that there were 77 workmen which number has, ultimately, grown to more than six to seven hundred. Under the circumstances, the fact that no settled list of creditors is prepared and as the exact total entitlement of creditors as well as the workmen is not determined, the scheme cannot be approved on the hypothesis that all lawful claims of everybody concerned would be satisfied.29.The scheme, in our opinion, is nothing but a scheme to sell the land and, as such, we find that the finding of the learned Judge that the scheme is not genuine and not bona fide is clearly sustainable.30.We cannot leave this case without certain observations regarding the manner in which the Liquidator has gone about the matter. We were rather surprised to hear from the learned counsel for the Liquidator that, as per some practice, the Liquidator first realises the amount and, thereafter, he invites the claims. The procedure is not only absolutely improper but inherently dangerous. For seventeen years no claims have been invited. May be there are certain poor workmen who would not survive such a period to stake their claim. What is important is that in such matters, the Liquidator must invite claims with absolute expediency within a reasonable time, must keep the Court informed about all the liabilities and the prepare settled list of all creditors. That is also very necessary for the purpose of determining the reasonableness of any offers that may be made to the Court. We are also shocked to see, the casual manner in which the Liquidator has referred to the offers received by him. It was pointed out to us that there is no offer by Videocon. When we enquired with the learned counsel appearing for the Liquidator, his only explanation was that the Liquidator was unable to give any explanation as to why he stated that Videocon had not given any offer.31.We have found that in this matter, nothing is finalized. We direct that the Liquidator should move in the matter with utmost despatch.
|
Ravikant Bhagoji Dhumal And Ors. Etc Vs. State Of Maharashtra | family of Bharana Naka who had their house behind Poonam Hotel in the neighbourhood. The Panchals were celebrating Navratra by arranging a dance programme and Suman (PW 14) and Vasanti (PW 16) were staying with them during the night of October 8, 1975. This was not the first occasion for them to stay with the Panchal family at Bharana Naka, they were welcome on earlier occasions also. This time, however, the younger brother aged about 5 named Eknath was also in the company of the two sisters. Suman has explained her relationship with the Panchal family and specially the lady of the family Malati Panchal and has given the details when she stayed out with them in the past. On October 8 she had gone to Visava Hotel at about 9 in the evening and had the occasion to observe Chandrakala, wearing a black blouse, from a close distance. Her movements, if examined with her entire deposition, must be held to be natural and not at all strange. After leaving Visava Hotel the witness went to the betel shop of Ram Bhau Patne (PW 10) to purchase pan supari for her sister. This shop is adjacent to the hotel. From there she saw the woman with black blouse she had earlier observed in the Visava Hotel, that is Chandrakala, proceeding towards the left side of the road. Accused 1, Ravikant followed her and then she heard a sound of protest with the words "aai-ga". She saw the lady in urinating posture when accused 1 caught hold of her from the back. She also saw two other persons going in that direction. She claims to have reported this matter to her sister Vasanti (PW 16) and Malati Panchal (PW 25). She was questioned at considerable length and has stood the cross-examination very satisfactorily. Since her evidence has been discussed at considerable length in the impugned judgment, we do not consider it necessary to repeat the same. We agree with the High Court for accepting her as a truthful person. Her evidence has been corroborated by the other prosecution witnesses.15. The other two eye-witnesses Shrirang (PW 17) and Jagannath (PW 18), were about 12 years of age at the time of the occurrence. The trial Judge was mindful of the fact that the witnesses were of tender age and accordingly took all necessary precautions which were expected to be taken before recording their statements in the form of questions and answers. Both of them were engaged in selling soda water on commission basis and by their answers to the searching questions put to them in their gruelling cross-examination they demonstrated that although young in age and not enjoying any special status they are dependable witnesses with respect for truth. The pressure which was exerted on them during the course of the investigation to win them over in the interest of the accused person and their reaction have been discussed by the High Court in great length and we agree that the two boys cannot be rejected as liars.16. In view of the very exhaustive discussion by the High Court of the evidence of all the three eye-witnesses, we do not consider it necessary to detail them again. So far as accused 1 is concerned, there does not appear to be any doubt that he caught hold of Chandrakala from behind and walked away in the dark. The scratch marks on his face noted by the Sub-Inspector Ghosalkar at the very initial stage of the investigation were, in view of the medical evidence, likely to have been caused by the deceased in an attempt to resist his advances and furnish circumstantial support to the case against him. The motive appears to be apparent that she was forcibly carried away for the purpose of rape. The Chemical Analysers report proves that the deceased was subjected to sexual intercourse and the facts that she was killed in the process and accused 1 got scratches on his face caused by human nails, along with the evidence of the eye-witnesses, fully establish that accused 1 had committed rape on her. The accused having caught hold of the victim form behind was not likely to get his face scratched at that stage. He must have got the injury when he was facing the lady. Even if it be assumed in his favour that the actual acts of rape and murder were performed by his accomplices, he cannot escape the criminal liability. Accordingly, we agree with the findings of the High Court recorded against him (appellant 1).17. So far the other two appellants are concerned, the position is a little different. The evidence in the case creates serious suspicion against them but falls short of establishing beyond reasonable doubt the offences with which they have been charged. Suman (PW 14) in her evidence did not claim to have identified either of them. She stated that after she saw appellant 1 Ravikant catching hold of Chandrakala from behind, she observed two persons moving in that direction but did not claim that they were appellants 2 and 3. Even those two unidentified persons were seen by the witness merely proceeding in the direction where appellant 1 had forcibly caught hold of Chandrakala. Jagannath (PW 18) identified them as appellants 2 and 3 but said that they did not help appellant 1 in lifting and carrying away Chandrakala. Their case is, therefore, clearly distinguishable from that of appellant 1 against whom the consistent evidence of all the three witnesses proved that he had forcibly carried off the victim girl. His face also had received scratches as discovered by the Sub-Inspector at the very earliest. That is not the position with respect to the other two appellants who are entitled to benefit of doubt. We, therefore, set aside their conviction and sentence and allow Criminal Appeal No. 371 of 1978 so far they are concerned. This, however, does not mean that appellant 1 was acting single handed in the commission of the crime. | 0[ds]8. At the trial, besides examining thethe prosecution led full and complete evidence with respect to the other parts of the prosecution case, namely, the identity of the victim girl, her journey to Bharana Naka, the discovery of her dead body in the paddy field of accused 5, the inquest, theand other reports and other relevant formal matters. The brother andof the deceased have proved that the suicide note Ex. 25 was not in the handwriting of the girl and it was, therefore, manifest that it was a forged document and was planted with a view to mislead the investigating machinery. It can safely be presumed that it must have been done either by the real culprit or somebody deeply interested in shielding him from the process of law. However, in absence of evidence to show as to who did it, this factor has been rendered unhelpful except for indicating that forces were working at Bharana Naka of which the accused are residents. It cannot be and has not been suggested that the deceaseds relatives, not belonging to the place, could have played any role whatsoever in influencing the police at Khed or helped to win over any witness. No motive has been or can be suggested for falsely implicating the appellants. The learned counsel for the appellants has, however, contended that the evidence available to the police in the first instance cannot be brushed aside and has to be taken into account while considering the evidence and the circumstances collected by the CID detective coming from Pune and presented in court. It is argued that he was interested both for his personal satisfaction and for the advancement of his career to obtain a conviction in the case, and the possibility of his procuring false evidence therefore cannot be ruled out. Having considered the evidence and the circumstances in the case, we are of the view that it is not permissible to presume that the CID Inspector Kulkarni could have fabricated false evidence to implicate innocent persons as murderers in order to satisfy his ego or to advance his future prospects in his career in absence of cogent material or acceptable circumstance to support such presumption. If he was interested merely to secure the conviction of any person, he could have very well proceeded on the line followed byGhosalkar. The manner in which he proceeded in the case does not leave any room for doubt against his bona fides. On taking over the charge of the case on November 15, 1975, he visited the scene of occurrence, and acquainted himself with all the facts and circumstances with the help ofGhosalkar. On November 17, 1975 he proceeded to Goa where he interrogated a large number of persons including those who had travelled by the bus Mahalasa Narayani on the fateful day. On returning back to Khed, he examined many more persons with a view to unearth further relevant material. In the course of the proceeding, he was, of course, alert to pick up a new clue to the solution of the crime, but was at the same time collecting all available materials with reference to the members of the crew of the bus, and had interrogated them at considerable length by securing their police custody remand for two days. By the first week of December 1975 he received the Chemical Analysers reports Exs. 45, 47, 48 and 49 negativing a possible case of poisoning and indicating detection of spermatozoa in the vaginal smear collected from the dead body. This was consistent with the statement of Dr. Savak in Ex. 43. He did not stop there. The detailed information available from the records of the case as to how he went on a relentless pursuit to get at the truth by interrogating scores of persons, examining innumerable materials and analysing all possible circumstances summarised in the judgment of the High Court which need not be repeated here, unmistakably point to a sincere and serious attempt on his part to unravel the mystery.9. On the other hand, the conduct of the Khed police has been dubious to say the least and in any event far from satisfactory. Accused 5 owned a hotel in Bharana Naka and was otherwise also a well to do person with a lot of local influence. Accused 8 is his son and accused 9 his sons friend. Both were young persons at the time of the occurrence and so was accused 1, waiter in the hotel. On the basis of the evidence and circumstances available on the records of the case and the analysis thereof as mentioned in paragraph 128 of the judgment the High Court was fully justified in expressing its displeasure on the course of investigation undertaken by the Khed Police Station. The evidence later collected by the Inspector Kulkarni clearly indicates that accused 1, 8 and 9 were under heavy suspicion from the very beginning and appellant 5 being father of appellant 8 must have been very worried about his son and his associates. The scratch marks on the face of accused 1 had already been taken note of. In this background we find that, instead of pursuing the investigation on the right lines as indicated by the evidence so far collected, attempt was made to falsely implicate the members of the crew of the bus so as to divert the attention from the right direction. The evidence of Ramdas Yashvant Tambe (PW 20), Atmaram Babuji Chaudhary (PW 21) and Prabhakar Anant Mahajan (PW 22) is material in this regard. The presence of accused 5 taking interest in the matter from the very beginning is apparent from the diary ofGhosalkar. Soon thereafter the association of certain other persons including the father of accused 9 comes to notice. PW 20 has stated that he had made the correct statement to the Khed police as to what he had actually seen on the fateful day but several police officers (named by him) and accused 5, who was also present in the police station, attempted to persuade him to make false statement to suit their objective. Similar is the statement of the other two witnesses PWs 21 and 22. The materials available to the police did not leave any room for doubt that the members of the crew of the bus had no hand whatsoever in the commission of the gruesome crime and would undoubtedly be acquitted by court, if put on trial and still there was a concerted plan to rope them in. It is not a case of anybody harbouring anagainst these persons which led to this conspiracy. The entire circumstances point to the only conclusion that this was being done with the object of misdirecting the investigation away from the real culprits. The materials have been discussed at some length by the High Court and without repeating them we confirm its opinion on this aspect. In this background the Deputy Inspector General of the Crime Branch (CID), having been satisfied that the investigation was not proceeding on the right lines, sent a reliable person to take over the matter and accordingly Inspector Kulkarni came on the scene. The delay to trace the criminals was, therefore, natural and we accept the finding of the High Court that it has been satisfactorily explained and the defence cannot be allowed to make out an excuse on that ground.10. This, however, does not conclude the case. The prosecution has a duty to lead reliable evidence on the basis of which it can be held that each of the accused was, without reasonable doubt, guilty of the offence charged with. The explanation offered by the prosecution for the delay in bringing the evidence on the records of the investigation and taking steps against the accused although satisfactory cannot take the place of substantive evidence on which the accused can be convicted.11. Before proceeding to consider the evidence led at the trial, we may deal with a legal plea raised by the learned counsel for the appellants on the basis of Section 169 Criminal Procedure Code. As has been mentioned earlier, the police submitted a report under Section 169 CrPC in favour of the members of the crew of the bus Mahalasa Narayani which was accepted by the Magistrate. It is contended that in view of this order this case could not have beenlater, as the order was judicial in nature and closed the case once for all. There are more than one reason for rejecting this ground. The report which was accepted by the Magistrate exonerated only the other suspects and not the accused persons who were ultimately put on trial. Further as it was correctly pointed out by the Allahabad High Court in Pradyum Narain Pandey v. State 1968 All(LJ) 768 the order approving the report under Section 169 CrPC was not an order of acquittal so as to bar a second trial. It was not even an order of discharge. The point urged, therefore, has no substance and is rejected.12. The facts that Chandrakala was travelling in the bus Mahalasa Narayani on the journey from Goa to Bombay, she got down from the vehicle at Bharana Naka near Visava Hotel, and did not board it when it started on its onward journey to Bombay with her luggage have been proved by the evidence of many witnesses including the bus conductor (PW 21) and has not been challenged before us by the learned counsel for the appellants. It has further been conclusively established that her dead body was discovered in a paddy field belonging to accused 5 at a short distance from the Visava Hotel, and that she had died an unnatural death. The medical evidence fully establishes that she was murdered and was also victim of rape. She was a young woman travelling without a companion, and was thus vulnerable to the evil designs of men of low morals and high sexual urge. From the evidence of her brother andit becomes clear that she did not have any enemy who could have been interested in killing her. Theory of suicide introduced during the investigation has been fully exploded and it has been firmly established that somebody placed a suicide not near her dead body with a view to misdirect the investigation, which was successful to a degree at the initial stage. Theft could not have been the cause of her death as is amply demonstrated by the fact that the ornaments on her person were left behind by criminal.13. The buses used to stop at Bharana Naka for about 45 minutes to enable the passengers and the members of the crew to have their evening meals. So far the members of the crew were concerned, they had to spend about 15 minutes inthe bus. The passengers got their dinner at the hotels and on the fateful day those who were travelling by Mahalasa Narayani bus went to Visava Hotel. The evidence also indicates that when Chandrakala did not return to the bus, which had to leave for Bombay without her, her absence was noticed but the crew could not have detained the bus indefinitely as the other passengers had to proceed to Bombay. There wereother similarly looking buses halting at Bharana Naka before proceeding to their respective destinations and the possibility that she might have boarded a wrong bus was considered. In any view, the conduct of the members of the crew could not be treated with suspicion for having proceeded on their journey without waiting further. The High Court has taken all these in consideration and has further analysed the other evidence indicating that there was no room for entertaining any suspicion against the members of the crew and it should have been apparent to any person, more so to the local police, that they were entirely innocent. It this background the police investigation was pursued in a completely wrong direction and without taking care to either (i) fix the place of occurrence, or (ii) to use the dog squad, or (iii) to proceed further with the investigation against accused 1 found with scratches on his face, or (iv) to disassociate the accused 5, father of the accused 8 and the owner of the hotel where accused 1 was working as a bearer from the investigative process. The High Court has rightly pointed out the evidence and the telling circumstances for coming to the conclusion that the investigation in the case, while it was in the hands of Khed Police Station, was under the influence of outside agency and the police officers were directly associated in attempting to procure false evidence against innocent persons. In this background the evidence of the threehas to be scrutinised.14. Let us first take up the testimony of Suman (PW 14). At the time of the crime she was about 15 years old. She was a resident of village Kudavashiv about 2 miles from Bharana Naka and was a domestic servant working for another hotel called Satkar next to Visava Hotel. Her elder sister Vasanti (PW 16) was serving in another local hotel and the two sisters were coming from the village together. They had an old acquaintance with a Panchal family of Bharana Naka who had their house behind Poonam Hotel in the neighbourhood. The Panchals were celebrating Navratra by arranging a dance programme and Suman (PW 14) and Vasanti (PW 16) were staying with them during the night of October 8, 1975. This was not the first occasion for them to stay with the Panchal family at Bharana Naka, they were welcome on earlier occasions also. This time, however, the younger brother aged about 5 named Eknath was also in the company of the two sisters. Suman has explained her relationship with the Panchal family and specially the lady of the family Malati Panchal and has given the details when she stayed out with them in the past. On October 8 she had gone to Visava Hotel at about 9 in the evening and had the occasion to observe Chandrakala, wearing a black blouse, from a close distance. Her movements, if examined with her entire deposition, must be held to be natural and not at all strange. After leaving Visava Hotel the witness went to the betel shop of Ram Bhau Patne (PW 10) to purchase pan supari for her sister. This shop is adjacent to the hotel. From there she saw the woman with black blouse she had earlier observed in the Visava Hotel, that is Chandrakala, proceeding towards the left side of the road. Accused 1, Ravikant followed her and then she heard a sound of protest with the wordsShe saw the lady in urinating posture when accused 1 caught hold of her from the back. She also saw two other persons going in that direction. She claims to have reported this matter to her sister Vasanti (PW 16) and Malati Panchal (PW 25). She was questioned at considerable length and has stood thevery satisfactorily. Since her evidence has been discussed at considerable length in the impugned judgment, we do not consider it necessary to repeat the same. We agree with the High Court for accepting her as a truthful person. Her evidence has been corroborated by the other prosecution witnesses.15. The other twoShrirang (PW 17) and Jagannath (PW 18), were about 12 years of age at the time of the occurrence. The trial Judge was mindful of the fact that the witnesses were of tender age and accordingly took all necessary precautions which were expected to be taken before recording their statements in the form of questions and answers. Both of them were engaged in selling soda water on commission basis and by their answers to the searching questions put to them in their gruellingthey demonstrated that although young in age and not enjoying any special status they are dependable witnesses with respect for truth. The pressure which was exerted on them during the course of the investigation to win them over in the interest of the accused person and their reaction have been discussed by the High Court in great length and we agree that the two boys cannot be rejected as liars.16. In view of the very exhaustive discussion by the High Court of the evidence of all the threewe do not consider it necessary to detail them again. So far as accused 1 is concerned, there does not appear to be any doubt that he caught hold of Chandrakala from behind and walked away in the dark. The scratch marks on his face noted by theGhosalkar at the very initial stage of the investigation were, in view of the medical evidence, likely to have been caused by the deceased in an attempt to resist his advances and furnish circumstantial support to the case against him. The motive appears to be apparent that she was forcibly carried away for the purpose of rape. The Chemical Analysers report proves that the deceased was subjected to sexual intercourse and the facts that she was killed in the process and accused 1 got scratches on his face caused by human nails, along with the evidence of thefully establish that accused 1 had committed rape on her. The accused having caught hold of the victim form behind was not likely to get his face scratched at that stage. He must have got the injury when he was facing the lady. Even if it be assumed in his favour that the actual acts of rape and murder were performed by his accomplices, he cannot escape the criminal liability. Accordingly, we agree with the findings of the High Court recorded against him (appellant 1).17. So far the other two appellants are concerned, the position is a little different. The evidence in the case creates serious suspicion against them but falls short of establishing beyond reasonable doubt the offences with which they have been charged. Suman (PW 14) in her evidence did not claim to have identified either of them. She stated that after she saw appellant 1 Ravikant catching hold of Chandrakala from behind, she observed two persons moving in that direction but did not claim that they were appellants 2 and 3. Even those two unidentified persons were seen by the witness merely proceeding in the direction where appellant 1 had forcibly caught hold of Chandrakala. Jagannath (PW 18) identified them as appellants 2 and 3 but said that they did not help appellant 1 in lifting and carrying away Chandrakala. Their case is, therefore, clearly distinguishable from that of appellant 1 against whom the consistent evidence of all the three witnesses proved that he had forcibly carried off the victim girl. His face also had received scratches as discovered by theat the very earliest. That is not the position with respect to the other two appellants who are entitled to benefit of doubt. We, therefore, set aside their conviction and sentence and allow Criminal Appeal No. 371 of 1978 so far they are concerned. This, however, does not mean that appellant 1 was acting single handed in the commission of the crime. | 0 | 5,495 | 3,455 | ### Instruction:
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family of Bharana Naka who had their house behind Poonam Hotel in the neighbourhood. The Panchals were celebrating Navratra by arranging a dance programme and Suman (PW 14) and Vasanti (PW 16) were staying with them during the night of October 8, 1975. This was not the first occasion for them to stay with the Panchal family at Bharana Naka, they were welcome on earlier occasions also. This time, however, the younger brother aged about 5 named Eknath was also in the company of the two sisters. Suman has explained her relationship with the Panchal family and specially the lady of the family Malati Panchal and has given the details when she stayed out with them in the past. On October 8 she had gone to Visava Hotel at about 9 in the evening and had the occasion to observe Chandrakala, wearing a black blouse, from a close distance. Her movements, if examined with her entire deposition, must be held to be natural and not at all strange. After leaving Visava Hotel the witness went to the betel shop of Ram Bhau Patne (PW 10) to purchase pan supari for her sister. This shop is adjacent to the hotel. From there she saw the woman with black blouse she had earlier observed in the Visava Hotel, that is Chandrakala, proceeding towards the left side of the road. Accused 1, Ravikant followed her and then she heard a sound of protest with the words "aai-ga". She saw the lady in urinating posture when accused 1 caught hold of her from the back. She also saw two other persons going in that direction. She claims to have reported this matter to her sister Vasanti (PW 16) and Malati Panchal (PW 25). She was questioned at considerable length and has stood the cross-examination very satisfactorily. Since her evidence has been discussed at considerable length in the impugned judgment, we do not consider it necessary to repeat the same. We agree with the High Court for accepting her as a truthful person. Her evidence has been corroborated by the other prosecution witnesses.15. The other two eye-witnesses Shrirang (PW 17) and Jagannath (PW 18), were about 12 years of age at the time of the occurrence. The trial Judge was mindful of the fact that the witnesses were of tender age and accordingly took all necessary precautions which were expected to be taken before recording their statements in the form of questions and answers. Both of them were engaged in selling soda water on commission basis and by their answers to the searching questions put to them in their gruelling cross-examination they demonstrated that although young in age and not enjoying any special status they are dependable witnesses with respect for truth. The pressure which was exerted on them during the course of the investigation to win them over in the interest of the accused person and their reaction have been discussed by the High Court in great length and we agree that the two boys cannot be rejected as liars.16. In view of the very exhaustive discussion by the High Court of the evidence of all the three eye-witnesses, we do not consider it necessary to detail them again. So far as accused 1 is concerned, there does not appear to be any doubt that he caught hold of Chandrakala from behind and walked away in the dark. The scratch marks on his face noted by the Sub-Inspector Ghosalkar at the very initial stage of the investigation were, in view of the medical evidence, likely to have been caused by the deceased in an attempt to resist his advances and furnish circumstantial support to the case against him. The motive appears to be apparent that she was forcibly carried away for the purpose of rape. The Chemical Analysers report proves that the deceased was subjected to sexual intercourse and the facts that she was killed in the process and accused 1 got scratches on his face caused by human nails, along with the evidence of the eye-witnesses, fully establish that accused 1 had committed rape on her. The accused having caught hold of the victim form behind was not likely to get his face scratched at that stage. He must have got the injury when he was facing the lady. Even if it be assumed in his favour that the actual acts of rape and murder were performed by his accomplices, he cannot escape the criminal liability. Accordingly, we agree with the findings of the High Court recorded against him (appellant 1).17. So far the other two appellants are concerned, the position is a little different. The evidence in the case creates serious suspicion against them but falls short of establishing beyond reasonable doubt the offences with which they have been charged. Suman (PW 14) in her evidence did not claim to have identified either of them. She stated that after she saw appellant 1 Ravikant catching hold of Chandrakala from behind, she observed two persons moving in that direction but did not claim that they were appellants 2 and 3. Even those two unidentified persons were seen by the witness merely proceeding in the direction where appellant 1 had forcibly caught hold of Chandrakala. Jagannath (PW 18) identified them as appellants 2 and 3 but said that they did not help appellant 1 in lifting and carrying away Chandrakala. Their case is, therefore, clearly distinguishable from that of appellant 1 against whom the consistent evidence of all the three witnesses proved that he had forcibly carried off the victim girl. His face also had received scratches as discovered by the Sub-Inspector at the very earliest. That is not the position with respect to the other two appellants who are entitled to benefit of doubt. We, therefore, set aside their conviction and sentence and allow Criminal Appeal No. 371 of 1978 so far they are concerned. This, however, does not mean that appellant 1 was acting single handed in the commission of the crime.
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two sisters were coming from the village together. They had an old acquaintance with a Panchal family of Bharana Naka who had their house behind Poonam Hotel in the neighbourhood. The Panchals were celebrating Navratra by arranging a dance programme and Suman (PW 14) and Vasanti (PW 16) were staying with them during the night of October 8, 1975. This was not the first occasion for them to stay with the Panchal family at Bharana Naka, they were welcome on earlier occasions also. This time, however, the younger brother aged about 5 named Eknath was also in the company of the two sisters. Suman has explained her relationship with the Panchal family and specially the lady of the family Malati Panchal and has given the details when she stayed out with them in the past. On October 8 she had gone to Visava Hotel at about 9 in the evening and had the occasion to observe Chandrakala, wearing a black blouse, from a close distance. Her movements, if examined with her entire deposition, must be held to be natural and not at all strange. After leaving Visava Hotel the witness went to the betel shop of Ram Bhau Patne (PW 10) to purchase pan supari for her sister. This shop is adjacent to the hotel. From there she saw the woman with black blouse she had earlier observed in the Visava Hotel, that is Chandrakala, proceeding towards the left side of the road. Accused 1, Ravikant followed her and then she heard a sound of protest with the wordsShe saw the lady in urinating posture when accused 1 caught hold of her from the back. She also saw two other persons going in that direction. She claims to have reported this matter to her sister Vasanti (PW 16) and Malati Panchal (PW 25). She was questioned at considerable length and has stood thevery satisfactorily. Since her evidence has been discussed at considerable length in the impugned judgment, we do not consider it necessary to repeat the same. We agree with the High Court for accepting her as a truthful person. Her evidence has been corroborated by the other prosecution witnesses.15. The other twoShrirang (PW 17) and Jagannath (PW 18), were about 12 years of age at the time of the occurrence. The trial Judge was mindful of the fact that the witnesses were of tender age and accordingly took all necessary precautions which were expected to be taken before recording their statements in the form of questions and answers. Both of them were engaged in selling soda water on commission basis and by their answers to the searching questions put to them in their gruellingthey demonstrated that although young in age and not enjoying any special status they are dependable witnesses with respect for truth. The pressure which was exerted on them during the course of the investigation to win them over in the interest of the accused person and their reaction have been discussed by the High Court in great length and we agree that the two boys cannot be rejected as liars.16. In view of the very exhaustive discussion by the High Court of the evidence of all the threewe do not consider it necessary to detail them again. So far as accused 1 is concerned, there does not appear to be any doubt that he caught hold of Chandrakala from behind and walked away in the dark. The scratch marks on his face noted by theGhosalkar at the very initial stage of the investigation were, in view of the medical evidence, likely to have been caused by the deceased in an attempt to resist his advances and furnish circumstantial support to the case against him. The motive appears to be apparent that she was forcibly carried away for the purpose of rape. The Chemical Analysers report proves that the deceased was subjected to sexual intercourse and the facts that she was killed in the process and accused 1 got scratches on his face caused by human nails, along with the evidence of thefully establish that accused 1 had committed rape on her. The accused having caught hold of the victim form behind was not likely to get his face scratched at that stage. He must have got the injury when he was facing the lady. Even if it be assumed in his favour that the actual acts of rape and murder were performed by his accomplices, he cannot escape the criminal liability. Accordingly, we agree with the findings of the High Court recorded against him (appellant 1).17. So far the other two appellants are concerned, the position is a little different. The evidence in the case creates serious suspicion against them but falls short of establishing beyond reasonable doubt the offences with which they have been charged. Suman (PW 14) in her evidence did not claim to have identified either of them. She stated that after she saw appellant 1 Ravikant catching hold of Chandrakala from behind, she observed two persons moving in that direction but did not claim that they were appellants 2 and 3. Even those two unidentified persons were seen by the witness merely proceeding in the direction where appellant 1 had forcibly caught hold of Chandrakala. Jagannath (PW 18) identified them as appellants 2 and 3 but said that they did not help appellant 1 in lifting and carrying away Chandrakala. Their case is, therefore, clearly distinguishable from that of appellant 1 against whom the consistent evidence of all the three witnesses proved that he had forcibly carried off the victim girl. His face also had received scratches as discovered by theat the very earliest. That is not the position with respect to the other two appellants who are entitled to benefit of doubt. We, therefore, set aside their conviction and sentence and allow Criminal Appeal No. 371 of 1978 so far they are concerned. This, however, does not mean that appellant 1 was acting single handed in the commission of the crime.
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Prem Nath and Others Vs. Commissioner of Income Tax, Delhi and Rajasthan | SHAH, J. 1. The assessee is a Hindu undivided family. Prem Nath, the manager of the family, was admitted as representing the family to a partnership styled "M/s. K. C. Raj & Company". Under the terms of the partnership Prem Nath was entitled to an "allowance of Rs. 700 per month" for "rendering service" to the partnership. In proceedings for assessment of income-tax of the Hindu undivided family, the Income-tax Officer rejected the contention that the remuneration paid to Prem Nath was the individual income of Prem Nath. The order was confirmed in appeal by the Appellate Assistant Commissioner and, in second appeal, by the Income-tax Appellate Tribunal The Tribunal submitted the following question to the High Court of Punjab at Delhi for opinion "Whether the remuneration received by Prem Nath, karta of the assessee-Hindu undivided family, for services rendered to the firm of M/s. K. C. Raj & Co. and the sub-partnership of M/s. Kishan Lal in which he is a partner representing the interests of the assessee-Hindu undivided family was rightly included in the total income of the assessee-Hindu undivided family ?" The High Court answered the question in the affirmative. With special leave, the assessee has appealed to this court Prem Nath was "a working partner" and he was allowed a salary at the rate of Rs. 700 per month. There is no evidence on the record that the remuneration agreed to be paid was not for services rendered to the partnership. It is true that, in the partnership, Prem Nath represented his undivided family. The share in the profits of the partnership may on that account be regarded as the income of the Hindu undivided family. We are, however, only concerned with the remuneration paid to Prem Nath as "working partner" in the business of the firmWhether remuneration received by a member of a Hindu undivided family who has joined a partnership as representing the family, and in which the assets of the family have been invested (sic) has been considered in several recent decisions 2. In Commissioner of Income-tax v. Gurunath V. Dhakappa, the karta of a Hindu undivided family was admitted to a registered firm as representing his family. The karta was appointed manager of the firm on a remuneration of Rs. 500 per month. There was no finding by the Tribunal that the salary was paid to the manager because the assets of the family were utilised by the firm. This court held that the remuneration received by the karta was not the income of the Hindu undivided family. In reaching that conclusion this court relied upon the judgment in V. D. Dhanwatey v. Commissioner of Income-tax, wherein it was observed that remuneration paid to a member of a Hindu undivided family, who represents the family in a partnership, will be treated as the income of the family if it is directly related to the investment in the partnership business with the assets of the Hindu undivided family. If there is "real and sufficient" connection between the joint family funds and the remuneration paid by the partnership to the manager of the joint Hindu undivided family, who is a partner, the remuneration is taxable as the income of the Hindu undivided family 3. In Commissioner of Income-tax v. D. C. Shah, a Hindu undivided family was a partner in two firms through its manager. The manager received remuneration from the firm. This court held that, in the absence of any real and sufficient connection between the investment of the joint family funds and the remuneration paid to the manager, the remuneration was not earned on account of any detriment to the joint family assets and the remuneration received by the manager as the managing partner of the two firms was not assessable as the income of the Hindu undivided familyThis court in Raj Kumar Singh Hukam Chandji v. Commissioner of income-tax, after a review of the decisions, observed "......... the broader principle that emerges is whether the remuneration received by the coparcener in substance though not in form was but one of the modes of return made to the family because of the investment of the family funds in the business or whether it was a compensation made for the services rendered by the individual coparcener. If it is the former, it is an income of the Hindu undivided family, but if it is the latter then it is the income of the individual coparcener. If the income was essentially earned as a result of the funds invested the fact that a coparcener had rendered some service would not change the character of the receipt. But if on the other hand it is essentially a remuneration for the services rendered by a coparcener, the circumstance that his services were availed of because of the reason that he was a member of the family which had invested funds in that business or that lie had obtained the qualification shares from out of the family funds would not make the receipt, the income of the Hindu undivided family." 4. Applying these principles, there can be no doubt that the income received by Prem Nath was remuneration for services rendered by him and there was no real and sufficient connection between the investment of the joint family assets and the remuneration paid to him The answer to the question referred must be in the negative 5. | 1[ds]In Commissioner ofx v. D. C. Shah, a Hindu undivided family was a partner in two firms through its manager. The manager received remuneration from the firm. This court held that, in the absence of any real and sufficient connection between the investment of the joint family funds and the remuneration paid to the manager, the remuneration was not earned on account of any detriment to the joint family assets and the remuneration received by the manager as the managing partner of the two firms was not assessable as the income of the Hindu undivided familyThis court in Raj Kumar Singh Hukam Chandji v. Commissioner of, after a review of the decisions, observed"......... the broader principle that emerges is whether the remuneration received by the coparcener in substance though not in form was but one of the modes of return made to the family because of the investment of the family funds in the business or whether it was a compensation made for the services rendered by the individual coparcener. If it is the former, it is an income of the Hindu undivided family, but if it is the latter then it is the income of the individual coparcener. If the income was essentially earned as a result of the funds invested the fact that a coparcener had rendered some service would not change the character of the receipt. But if on the other hand it is essentially a remuneration for the services rendered by a coparcener, the circumstance that his services were availed of because of the reason that he was a member of the family which had invested funds in that business or that lie had obtained the qualification shares from out of the family funds would not make the receipt, the income of the Hindu undivided family."Applying these principles, there can be no doubt that the income received by Prem Nath was remuneration for services rendered by him and there was no real and sufficient connection between the investment of the joint family assets and the remuneration paid to himThe answer to the question referred must be in the negative | 1 | 980 | 377 | ### 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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SHAH, J. 1. The assessee is a Hindu undivided family. Prem Nath, the manager of the family, was admitted as representing the family to a partnership styled "M/s. K. C. Raj & Company". Under the terms of the partnership Prem Nath was entitled to an "allowance of Rs. 700 per month" for "rendering service" to the partnership. In proceedings for assessment of income-tax of the Hindu undivided family, the Income-tax Officer rejected the contention that the remuneration paid to Prem Nath was the individual income of Prem Nath. The order was confirmed in appeal by the Appellate Assistant Commissioner and, in second appeal, by the Income-tax Appellate Tribunal The Tribunal submitted the following question to the High Court of Punjab at Delhi for opinion "Whether the remuneration received by Prem Nath, karta of the assessee-Hindu undivided family, for services rendered to the firm of M/s. K. C. Raj & Co. and the sub-partnership of M/s. Kishan Lal in which he is a partner representing the interests of the assessee-Hindu undivided family was rightly included in the total income of the assessee-Hindu undivided family ?" The High Court answered the question in the affirmative. With special leave, the assessee has appealed to this court Prem Nath was "a working partner" and he was allowed a salary at the rate of Rs. 700 per month. There is no evidence on the record that the remuneration agreed to be paid was not for services rendered to the partnership. It is true that, in the partnership, Prem Nath represented his undivided family. The share in the profits of the partnership may on that account be regarded as the income of the Hindu undivided family. We are, however, only concerned with the remuneration paid to Prem Nath as "working partner" in the business of the firmWhether remuneration received by a member of a Hindu undivided family who has joined a partnership as representing the family, and in which the assets of the family have been invested (sic) has been considered in several recent decisions 2. In Commissioner of Income-tax v. Gurunath V. Dhakappa, the karta of a Hindu undivided family was admitted to a registered firm as representing his family. The karta was appointed manager of the firm on a remuneration of Rs. 500 per month. There was no finding by the Tribunal that the salary was paid to the manager because the assets of the family were utilised by the firm. This court held that the remuneration received by the karta was not the income of the Hindu undivided family. In reaching that conclusion this court relied upon the judgment in V. D. Dhanwatey v. Commissioner of Income-tax, wherein it was observed that remuneration paid to a member of a Hindu undivided family, who represents the family in a partnership, will be treated as the income of the family if it is directly related to the investment in the partnership business with the assets of the Hindu undivided family. If there is "real and sufficient" connection between the joint family funds and the remuneration paid by the partnership to the manager of the joint Hindu undivided family, who is a partner, the remuneration is taxable as the income of the Hindu undivided family 3. In Commissioner of Income-tax v. D. C. Shah, a Hindu undivided family was a partner in two firms through its manager. The manager received remuneration from the firm. This court held that, in the absence of any real and sufficient connection between the investment of the joint family funds and the remuneration paid to the manager, the remuneration was not earned on account of any detriment to the joint family assets and the remuneration received by the manager as the managing partner of the two firms was not assessable as the income of the Hindu undivided familyThis court in Raj Kumar Singh Hukam Chandji v. Commissioner of income-tax, after a review of the decisions, observed "......... the broader principle that emerges is whether the remuneration received by the coparcener in substance though not in form was but one of the modes of return made to the family because of the investment of the family funds in the business or whether it was a compensation made for the services rendered by the individual coparcener. If it is the former, it is an income of the Hindu undivided family, but if it is the latter then it is the income of the individual coparcener. If the income was essentially earned as a result of the funds invested the fact that a coparcener had rendered some service would not change the character of the receipt. But if on the other hand it is essentially a remuneration for the services rendered by a coparcener, the circumstance that his services were availed of because of the reason that he was a member of the family which had invested funds in that business or that lie had obtained the qualification shares from out of the family funds would not make the receipt, the income of the Hindu undivided family." 4. Applying these principles, there can be no doubt that the income received by Prem Nath was remuneration for services rendered by him and there was no real and sufficient connection between the investment of the joint family assets and the remuneration paid to him The answer to the question referred must be in the negative 5.
### Response:
1
### Explanation:
In Commissioner ofx v. D. C. Shah, a Hindu undivided family was a partner in two firms through its manager. The manager received remuneration from the firm. This court held that, in the absence of any real and sufficient connection between the investment of the joint family funds and the remuneration paid to the manager, the remuneration was not earned on account of any detriment to the joint family assets and the remuneration received by the manager as the managing partner of the two firms was not assessable as the income of the Hindu undivided familyThis court in Raj Kumar Singh Hukam Chandji v. Commissioner of, after a review of the decisions, observed"......... the broader principle that emerges is whether the remuneration received by the coparcener in substance though not in form was but one of the modes of return made to the family because of the investment of the family funds in the business or whether it was a compensation made for the services rendered by the individual coparcener. If it is the former, it is an income of the Hindu undivided family, but if it is the latter then it is the income of the individual coparcener. If the income was essentially earned as a result of the funds invested the fact that a coparcener had rendered some service would not change the character of the receipt. But if on the other hand it is essentially a remuneration for the services rendered by a coparcener, the circumstance that his services were availed of because of the reason that he was a member of the family which had invested funds in that business or that lie had obtained the qualification shares from out of the family funds would not make the receipt, the income of the Hindu undivided family."Applying these principles, there can be no doubt that the income received by Prem Nath was remuneration for services rendered by him and there was no real and sufficient connection between the investment of the joint family assets and the remuneration paid to himThe answer to the question referred must be in the negative
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Tuticorin Coal Terminal Private Limited Vs. Gelguera Gruas India Private Limited | the manner in which it is projected. sought. Mr. Andhyarujina was guarded in his submission that the relief sought is in Section 17 application is not based on the bank guarantee or merely an attempt to secure the amount collected by the petitioner pursuant to invocation of the bank guarantees and therefore not subject matter of the first application under Section 9.17. Furthermore we have to bear in mind that after the amendment of the act and substitution of Section17 by virtue of Section17(2) reads as follows :...(2) Subject to any orders passed in an appeal under Section 37, any order issued by the Arbitral tribunal under this Section shall be deemed to be an order of the Court for all purposes and shall be enforceable under the Code of Civil Procedure, 1908 (5 of 1908), in the same manner as if it were an order of he Court.In view of this amendment what we have here is rather a unique situation whereby despite an order of this Court under Section 9 being confirmed in appeal and in the SLP by virtue of its dismissal, a fresh order affecting rights of the petitioner has been passed. By virtue of the deeming provision of Section 17(2) this order is to be treated as order of the Court for all purposes and shall be enforceable under the Code of Civil Procedure in the same manner as if it were order of the Court. This results in a rather incongruous situation which certainly could not have been permitted since the highest Court has already confirmed the order passed by the division Bench of this Court approving the order passed under Section 9. An order under Section 17 which shall be deemed to be an order of court cannot result in setting the clock back to prevent the petitioners from utilising the funds received under the guarantees encashment of which has been permitted. The funds are now at the disposal of the petitioners. In the light of the order under Section 9 attaining finality the impugned orders certainly cannot be expressed as order of the Court. For this reason also the order impugned cannot be enforced in law and hence cannot be sustained.18. Apropos the contention that the application seeks to secure an admitted sum of money, I enquired of Mr. Andhyarujina whether in the light of such alleged admission, the respondent had sought any interim award to which Mr. Andhyarujina fairly stated that no such application for interim award had been made. It transpires that the so called admission was not in any pleading in the arbitration proceedings but refers to the very same amount which formed the subject matter of the Statutory notice under Section 434 of the Companies Act and a Company petition based on that notice to which reference was made in the Section 9 order. As stated above the Company Court had observed that admission of liability was in anticipation of the work under the contract and not as the result of termination of the contract. Different sets of circumstances arose on termination of the contract and this aspect has been dealt with by the Court while disposing of the Section 9 Applications.19. It is also not possible to accept Mr. Andhyarujinas contention that the application under Section 17 is by way of an application to furnish security as contemplated under Order 38 Rule 5. In my view none of the elements of the said Order or Rule have been satisfied and on that ground alone this contention of the respondent is liable to be rejected. The Arbitral Tribunal has not passed the order after having come to any satisfaction that the petitioner was about to dispose of the property or remove property from the jurisdiction with intention to delay or execution of any award that has to be passed. Paragraph 30 of the order passed under Section 9 deals with the submission on behalf of the respondents in support of the plea of irretrievable injustice and special equities in their favour. The respondents contention has been recorded thus in paragraph 31 (iv):That if the Arbitral Tribunal ultimately decides in favour of the FGIPL, it would be impossible to recover the amounts under the Bank guarantees from TCTPL causing great irretrievable injury / injustice to FGPIL. TCTPL being a Special Purpose Vehicle has no other assets or businesses apart from its Concession Agreement with V.O.Chidambaranar Port Trust and the assets created therein. FGIPL verily believes that all the loans given by the lenders to TCTPL are secured by exclusive first charge on all the assets provided under the Concession Agreement. FGPIL verily believes that lenders were also furnished the Corporate Guarantee by ALBA Aisa Pvt. Ltd (Holding Company of TCTPL) TCTPL is not making much revenue or operating cash inflow since the project has not been commissioned, on account of issues between TTCTPL and V.O. Chidambaranar Port Trust.20. This submission was dealt with by the Court in its order under Section 9. The contention on behalf of the respondent that the petitioner does not have any assets and the respondent is left high and dry and thus it will be unable to execute an award has been rejected. The Court found that the promoters of the petitioner had already invested about 170 crores in the project and the Concession Agreement between the parties was for a period of 30 years during which users of the facilities would be required to pay appropriate handling charges. The estimated revenue during the balance of the Concession period was Rs.10,067.14 crores to be appropriated in the manner set out in the contract. The petitioner also had a counter claim of Rs.600 crores and the Court held that the adjudication of the proceeding on the basis that the claim of the respondent would be upheld by the Arbitral Tribunal and the counter claim could be dismissed, cannot be accepted. In this view of the matter the so called admission of liability is not significant. | 0[ds]15. The case of the respondents and as canvassed by Mr. Andhyarujina is that the application under Section 17 is the result of a fresh cause of action namely rejection of the SLP. In my view rejection of the SLP has resulted in confirmation of the order of the appeal Court in which the order passed under Section 9 has merged. The order of the Supreme Court does not give rise to fresh cause of action to seek relief qua the very subject matter of the application under Section 9. The order under Section 9 makes reference to the Order passed by me as Company Judge in Company Petition No. 780 of 2015 seeking winding up of the petitioner company.Thus, the so called admission was not really an unqualified admission which could entail an order for payment in the manner in which it is projected. sought. Mr. Andhyarujina was guarded in his submission that the relief sought is in Section 17 application is not based on the bank guarantee or merely an attempt to secure the amount collected by the petitioner pursuant to invocation of the bank guarantees and therefore not subject matter of the first application under Sectionview of this amendment what we have here is rather a unique situation whereby despite an order of this Court under Section 9 being confirmed in appeal and in the SLP by virtue of its dismissal, a fresh order affecting rights of the petitioner has been passed. By virtue of the deeming provision of Section 17(2) this order is to be treated as order of the Court for all purposes and shall be enforceable under the Code of Civil Procedure in the same manner as if it were order of the Court. This results in a rather incongruous situation which certainly could not have been permitted since the highest Court has already confirmed the order passed by the division Bench of this Court approving the order passed under Section 9. An order under Section 17 which shall be deemed to be an order of court cannot result in setting the clock back to prevent the petitioners from utilising the funds received under the guarantees encashment of which has been permitted. The funds are now at the disposal of the petitioners. In the light of the order under Section 9 attaining finality the impugned orders certainly cannot be expressed as order of the Court. For this reason also the order impugned cannot be enforced in law and hence cannot be sustained.18. Apropos the contention that the application seeks to secure an admitted sum of money, I enquired of Mr. Andhyarujina whether in the light of such alleged admission, the respondent had sought any interim award to which Mr. Andhyarujina fairly stated that no such application for interim award had been made. It transpires that the so called admission was not in any pleading in the arbitration proceedings but refers to the very same amount which formed the subject matter of the Statutory notice under Section 434 of the Companies Act and a Company petition based on that notice to which reference was made in the Section 9 order. As stated above the Company Court had observed that admission of liability was in anticipation of the work under the contract and not as the result of termination of the contract. Different sets of circumstances arose on termination of the contract and this aspect has been dealt with by the Court while disposing of the Section 9 Applications.19. It is also not possible to accept Mr. Andhyarujinas contention that the application under Section 17 is by way of an application to furnish security as contemplated under Order 38 Rule 5. In my view none of the elements of the said Order or Rule have been satisfied and on that ground alone this contention of the respondent is liable to be rejected. The Arbitral Tribunal has not passed the order after having come to any satisfaction that the petitioner was about to dispose of the property or remove property from the jurisdiction with intention to delay or execution of any award that has to be passed. Paragraph 30 of the order passed under Section 9 deals with the submission on behalf of the respondents in support of the plea of irretrievable injustice and special equities in their favour.This submission was dealt with by the Court in its order under Section 9. The contention on behalf of the respondent that the petitioner does not have any assets and the respondent is left high and dry and thus it will be unable to execute an award has been rejected. The Court found that the promoters of the petitioner had already invested about 170 crores in the project and the Concession Agreement between the parties was for a period of 30 years during which users of the facilities would be required to pay appropriate handling charges. The estimated revenue during the balance of the Concession period was Rs.10,067.14 crores to be appropriated in the manner set out in the contract. The petitioner also had a counter claim of Rs.600 crores and the Court held that the adjudication of the proceeding on the basis that the claim of the respondent would be upheld by the Arbitral Tribunal and the counter claim could be dismissed, cannot be accepted. In this view of the matter the so called admission of liability is not significant. | 0 | 3,587 | 946 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
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the manner in which it is projected. sought. Mr. Andhyarujina was guarded in his submission that the relief sought is in Section 17 application is not based on the bank guarantee or merely an attempt to secure the amount collected by the petitioner pursuant to invocation of the bank guarantees and therefore not subject matter of the first application under Section 9.17. Furthermore we have to bear in mind that after the amendment of the act and substitution of Section17 by virtue of Section17(2) reads as follows :...(2) Subject to any orders passed in an appeal under Section 37, any order issued by the Arbitral tribunal under this Section shall be deemed to be an order of the Court for all purposes and shall be enforceable under the Code of Civil Procedure, 1908 (5 of 1908), in the same manner as if it were an order of he Court.In view of this amendment what we have here is rather a unique situation whereby despite an order of this Court under Section 9 being confirmed in appeal and in the SLP by virtue of its dismissal, a fresh order affecting rights of the petitioner has been passed. By virtue of the deeming provision of Section 17(2) this order is to be treated as order of the Court for all purposes and shall be enforceable under the Code of Civil Procedure in the same manner as if it were order of the Court. This results in a rather incongruous situation which certainly could not have been permitted since the highest Court has already confirmed the order passed by the division Bench of this Court approving the order passed under Section 9. An order under Section 17 which shall be deemed to be an order of court cannot result in setting the clock back to prevent the petitioners from utilising the funds received under the guarantees encashment of which has been permitted. The funds are now at the disposal of the petitioners. In the light of the order under Section 9 attaining finality the impugned orders certainly cannot be expressed as order of the Court. For this reason also the order impugned cannot be enforced in law and hence cannot be sustained.18. Apropos the contention that the application seeks to secure an admitted sum of money, I enquired of Mr. Andhyarujina whether in the light of such alleged admission, the respondent had sought any interim award to which Mr. Andhyarujina fairly stated that no such application for interim award had been made. It transpires that the so called admission was not in any pleading in the arbitration proceedings but refers to the very same amount which formed the subject matter of the Statutory notice under Section 434 of the Companies Act and a Company petition based on that notice to which reference was made in the Section 9 order. As stated above the Company Court had observed that admission of liability was in anticipation of the work under the contract and not as the result of termination of the contract. Different sets of circumstances arose on termination of the contract and this aspect has been dealt with by the Court while disposing of the Section 9 Applications.19. It is also not possible to accept Mr. Andhyarujinas contention that the application under Section 17 is by way of an application to furnish security as contemplated under Order 38 Rule 5. In my view none of the elements of the said Order or Rule have been satisfied and on that ground alone this contention of the respondent is liable to be rejected. The Arbitral Tribunal has not passed the order after having come to any satisfaction that the petitioner was about to dispose of the property or remove property from the jurisdiction with intention to delay or execution of any award that has to be passed. Paragraph 30 of the order passed under Section 9 deals with the submission on behalf of the respondents in support of the plea of irretrievable injustice and special equities in their favour. The respondents contention has been recorded thus in paragraph 31 (iv):That if the Arbitral Tribunal ultimately decides in favour of the FGIPL, it would be impossible to recover the amounts under the Bank guarantees from TCTPL causing great irretrievable injury / injustice to FGPIL. TCTPL being a Special Purpose Vehicle has no other assets or businesses apart from its Concession Agreement with V.O.Chidambaranar Port Trust and the assets created therein. FGIPL verily believes that all the loans given by the lenders to TCTPL are secured by exclusive first charge on all the assets provided under the Concession Agreement. FGPIL verily believes that lenders were also furnished the Corporate Guarantee by ALBA Aisa Pvt. Ltd (Holding Company of TCTPL) TCTPL is not making much revenue or operating cash inflow since the project has not been commissioned, on account of issues between TTCTPL and V.O. Chidambaranar Port Trust.20. This submission was dealt with by the Court in its order under Section 9. The contention on behalf of the respondent that the petitioner does not have any assets and the respondent is left high and dry and thus it will be unable to execute an award has been rejected. The Court found that the promoters of the petitioner had already invested about 170 crores in the project and the Concession Agreement between the parties was for a period of 30 years during which users of the facilities would be required to pay appropriate handling charges. The estimated revenue during the balance of the Concession period was Rs.10,067.14 crores to be appropriated in the manner set out in the contract. The petitioner also had a counter claim of Rs.600 crores and the Court held that the adjudication of the proceeding on the basis that the claim of the respondent would be upheld by the Arbitral Tribunal and the counter claim could be dismissed, cannot be accepted. In this view of the matter the so called admission of liability is not significant.
### Response:
0
### Explanation:
15. The case of the respondents and as canvassed by Mr. Andhyarujina is that the application under Section 17 is the result of a fresh cause of action namely rejection of the SLP. In my view rejection of the SLP has resulted in confirmation of the order of the appeal Court in which the order passed under Section 9 has merged. The order of the Supreme Court does not give rise to fresh cause of action to seek relief qua the very subject matter of the application under Section 9. The order under Section 9 makes reference to the Order passed by me as Company Judge in Company Petition No. 780 of 2015 seeking winding up of the petitioner company.Thus, the so called admission was not really an unqualified admission which could entail an order for payment in the manner in which it is projected. sought. Mr. Andhyarujina was guarded in his submission that the relief sought is in Section 17 application is not based on the bank guarantee or merely an attempt to secure the amount collected by the petitioner pursuant to invocation of the bank guarantees and therefore not subject matter of the first application under Sectionview of this amendment what we have here is rather a unique situation whereby despite an order of this Court under Section 9 being confirmed in appeal and in the SLP by virtue of its dismissal, a fresh order affecting rights of the petitioner has been passed. By virtue of the deeming provision of Section 17(2) this order is to be treated as order of the Court for all purposes and shall be enforceable under the Code of Civil Procedure in the same manner as if it were order of the Court. This results in a rather incongruous situation which certainly could not have been permitted since the highest Court has already confirmed the order passed by the division Bench of this Court approving the order passed under Section 9. An order under Section 17 which shall be deemed to be an order of court cannot result in setting the clock back to prevent the petitioners from utilising the funds received under the guarantees encashment of which has been permitted. The funds are now at the disposal of the petitioners. In the light of the order under Section 9 attaining finality the impugned orders certainly cannot be expressed as order of the Court. For this reason also the order impugned cannot be enforced in law and hence cannot be sustained.18. Apropos the contention that the application seeks to secure an admitted sum of money, I enquired of Mr. Andhyarujina whether in the light of such alleged admission, the respondent had sought any interim award to which Mr. Andhyarujina fairly stated that no such application for interim award had been made. It transpires that the so called admission was not in any pleading in the arbitration proceedings but refers to the very same amount which formed the subject matter of the Statutory notice under Section 434 of the Companies Act and a Company petition based on that notice to which reference was made in the Section 9 order. As stated above the Company Court had observed that admission of liability was in anticipation of the work under the contract and not as the result of termination of the contract. Different sets of circumstances arose on termination of the contract and this aspect has been dealt with by the Court while disposing of the Section 9 Applications.19. It is also not possible to accept Mr. Andhyarujinas contention that the application under Section 17 is by way of an application to furnish security as contemplated under Order 38 Rule 5. In my view none of the elements of the said Order or Rule have been satisfied and on that ground alone this contention of the respondent is liable to be rejected. The Arbitral Tribunal has not passed the order after having come to any satisfaction that the petitioner was about to dispose of the property or remove property from the jurisdiction with intention to delay or execution of any award that has to be passed. Paragraph 30 of the order passed under Section 9 deals with the submission on behalf of the respondents in support of the plea of irretrievable injustice and special equities in their favour.This submission was dealt with by the Court in its order under Section 9. The contention on behalf of the respondent that the petitioner does not have any assets and the respondent is left high and dry and thus it will be unable to execute an award has been rejected. The Court found that the promoters of the petitioner had already invested about 170 crores in the project and the Concession Agreement between the parties was for a period of 30 years during which users of the facilities would be required to pay appropriate handling charges. The estimated revenue during the balance of the Concession period was Rs.10,067.14 crores to be appropriated in the manner set out in the contract. The petitioner also had a counter claim of Rs.600 crores and the Court held that the adjudication of the proceeding on the basis that the claim of the respondent would be upheld by the Arbitral Tribunal and the counter claim could be dismissed, cannot be accepted. In this view of the matter the so called admission of liability is not significant.
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Ramzan Vs. Smt. Hussaini | filed the suit, could it be thrown out on the ground that she was not entitled to the specific performance asked for ? We do not think so. She would have been within her rights to assert that she had performed her part of the contract and was entitled to insist that her brother should complete his part. The agreement is a typical illustration of a contingent contract within the meaning of Section 31 of the Indian Contract Act, 1872 and became enforceable as soon as the event of redemption (by the plaintiff herself) happened. We agree with the view of the Madras High Court in R. Muniswami Goundar v. B. M. Shamanna Gouda (AIR 1950 Mad 820 ) expressed in slightly different circumstances. The doctrine of id certum est quod certum reddi potest is clearly applicable to the case before us which in the language of Herbert Broom (in his book dealing with legal maxims) is that certainty need not be ascertained at the time; for if, in the fluxion of time, a day will arrive which will make it certain, that is sufficient. A similar question had arisen in Duncombe v. Brighton Club and Norfolk Hotel Company ((1875) 10 QB 371), relied upon in the Madras case. Under an agreement, the plaintiff had supplied some furniture to the defendant for which payment was made but after some delay. He claimed interest. The rule at common law did not allow interest in such a case, and the plaintiff in support of his claim relied upon a statutory provision which could come to his aid only if the price was payable at a certain time. Blackburn, J. observed that he did not have the slightest hesitation in saying that the agreement contemplated a particular day, which, when the goods were delivered would be ascertained, and then the money would be payable at a certain time; but rejected the plaintiffs demand on the ground that the price did not become payable by the written instrument at a certain time. The other learned Judges did not agree with him, and held that the statute did not require that the document should specify the time of payment by mentioning the day of payment. If it specified the event upon which the payment was to be made, and if the time of event was capable of being ascertained, the requirements of the section were satisfied. The same is the position in the case before us. The requirement of Article 54 is not that the actual day should necessarily be ascertained upon the face of the deed but that the basis of the calculation which was to make it certain should be found therein. We, accordingly, hold that under the agreement the date for the defendant to execute the sale deed was fixed, although not by mentioning a certain date but by a reference to the happening of a certain event, namely, the redemption of the mortgage; and, immediately after the redemption by the plaintiff, the defendant became liable to execute the sale deed which the plaintiff was entitled to enforce. The period of limitation thus started running on that date. The case is, therefore, covered by the first part of Article 54 (third column) and not the second part. 7. The learned counsel for the respondent relied on several decisions in support of the opinion of the High Court in the impugned judgment but they do not appear to help him. In Sathula Venkanna v. Nambudiri Venkatakrishnayya (AIR 1918 Mad 492 ) it was observed that in cases where a right to enforce specific performance vests in a third party to whom the ascertainment of the date of which performance becomes due need not necessarily be known, the doctrine certum est quod certum reddi potest does not apply. Without expressing their final opinion the learned Judges observed that it might be right to apply the doctrine between the actual parties to the contract who would get the benefit and be subject to the liabilities under that contract; "but in cases where a person is entitled to bring a suit on the contract who may not and need not, and very likely may not be aware of the date becoming fixed, " the doctrine could not apply. In Kruttiventi Mallikarjuna Rao v. Vemuri Pardhasaradhirao (AIR 1944 Mad 210) the vendor promised to execute the sale deed when both of his brothers, who were studying elsewhere, returned to the village. It was held that it was not a case where it could be said that a date was fixed for the performance of the contract as the event mentioned therein was too indefinite to be regarded as fixing a date. The performance was dependent on both the brothers of the vendor coming to the village, in which the intending purchaser had no say at all. Apart from the question of limitation, the defendant could not effectively rely upon such a clause to defeat the very contract. In Kashi Prasad v. Chhabi Lal (AIR 1933 All 410 (2)) the plaintiff created two usufructuary mortgages and thereafter a third mortgage in favour of the defendants for a sum of Rs. 8500. Out of this sum an amount of Rs. 6000 was left with the mortgagees for payment to the earlier creditors. The suit was instituted on the allegation that the defendants had failed to redeem the earlier mortgages. The plaintiff prayed for a direction to the defendants to redeem the mortgages. The document did not indicate as to the time when the defendants were obliged to redeem the earlier mortgages, and a plea of limitation was taken on the ground that the date was fixed by necessary implication and could be ascertained by reference to the surrounding circumstances. In this background the court observed that the use of the word fixed implies that it should be fixed definitely and should not be left to be gathered from surrounding circumstances of the case. All these cases are clearly distinguishable. | 0[ds]in our view the answer is in the affirmative. It is true that a particular date from the calendar was not mentioned in the document and the date was not ascertainable originally, but as soon as the plaintiff redeemed the mortgage, it became an ascertained date. If the plaintiff had, immediately after the redemption, filed the suit, could it be thrown out on the ground that she was not entitled to the specific performance asked for ? We do not think so. She would have been within her rights to assert that she had performed her part of the contract and was entitled to insist that her brother should complete his part. The agreement is a typical illustration of a contingent contract within the meaning of Section 31 ofthe Indian Contract Act, 1872 and became enforceable as soon as the event of redemption (by the plaintiff herself) happened. We agree with the view of the Madras High Court in R. Muniswami Goundar v. B. M. Shamanna Gouda (AIR 1950 Mad 820 ) expressed in slightly different circumstances. The doctrine of id certum est quod certum reddi potest is clearly applicable to the case before us which in the language of Herbert Broom (in his book dealing with legal maxims) is that certainty need not be ascertained at the time; for if, in the fluxion of time, a day will arrive which will make it certain, that is sufficient. A similar question had arisen in Duncombe v. Brighton Club and Norfolk Hotel Company ((1875) 10 QB 371), relied upon in the Madras case. Under an agreement, the plaintiff had supplied some furniture to the defendant for which payment was made but after some delay. He claimed interest. The rule at common law did not allow interest in such a case, and the plaintiff in support of his claim relied upon a statutory provision which could come to his aid only if the price was payable at a certain time. Blackburn, J. observed that he did not have the slightest hesitation in saying that the agreement contemplated a particular day, which, when the goods were delivered would be ascertained, and then the money would be payable at a certain time; but rejected the plaintiffs demand on the ground that the price did not become payable by the written instrument at a certain time. The other learned Judges did not agree with him, and held that the statute did not require that the document should specify the time of payment by mentioning the day of payment. If it specified the event upon which the payment was to be made, and if the time of event was capable of being ascertained, the requirements of the section were satisfied. The same is the position in the case before us. The requirement of Article 54 is not that the actual day should necessarily be ascertained upon the face of the deed but that the basis of the calculation which was to make it certain should be found therein. We, accordingly, hold that under the agreement the date for the defendant to execute the sale deed was fixed, although not by mentioning a certain date but by a reference to the happening of a certain event, namely, the redemption of the mortgage; and, immediately after the redemption by the plaintiff, the defendant became liable to execute the sale deed which the plaintiff was entitled to enforce. The period of limitation thus started running on that date. The case is, therefore, covered by the first part of Article 54 (third column) and not the second part | 0 | 1,664 | 662 | ### Instruction:
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filed the suit, could it be thrown out on the ground that she was not entitled to the specific performance asked for ? We do not think so. She would have been within her rights to assert that she had performed her part of the contract and was entitled to insist that her brother should complete his part. The agreement is a typical illustration of a contingent contract within the meaning of Section 31 of the Indian Contract Act, 1872 and became enforceable as soon as the event of redemption (by the plaintiff herself) happened. We agree with the view of the Madras High Court in R. Muniswami Goundar v. B. M. Shamanna Gouda (AIR 1950 Mad 820 ) expressed in slightly different circumstances. The doctrine of id certum est quod certum reddi potest is clearly applicable to the case before us which in the language of Herbert Broom (in his book dealing with legal maxims) is that certainty need not be ascertained at the time; for if, in the fluxion of time, a day will arrive which will make it certain, that is sufficient. A similar question had arisen in Duncombe v. Brighton Club and Norfolk Hotel Company ((1875) 10 QB 371), relied upon in the Madras case. Under an agreement, the plaintiff had supplied some furniture to the defendant for which payment was made but after some delay. He claimed interest. The rule at common law did not allow interest in such a case, and the plaintiff in support of his claim relied upon a statutory provision which could come to his aid only if the price was payable at a certain time. Blackburn, J. observed that he did not have the slightest hesitation in saying that the agreement contemplated a particular day, which, when the goods were delivered would be ascertained, and then the money would be payable at a certain time; but rejected the plaintiffs demand on the ground that the price did not become payable by the written instrument at a certain time. The other learned Judges did not agree with him, and held that the statute did not require that the document should specify the time of payment by mentioning the day of payment. If it specified the event upon which the payment was to be made, and if the time of event was capable of being ascertained, the requirements of the section were satisfied. The same is the position in the case before us. The requirement of Article 54 is not that the actual day should necessarily be ascertained upon the face of the deed but that the basis of the calculation which was to make it certain should be found therein. We, accordingly, hold that under the agreement the date for the defendant to execute the sale deed was fixed, although not by mentioning a certain date but by a reference to the happening of a certain event, namely, the redemption of the mortgage; and, immediately after the redemption by the plaintiff, the defendant became liable to execute the sale deed which the plaintiff was entitled to enforce. The period of limitation thus started running on that date. The case is, therefore, covered by the first part of Article 54 (third column) and not the second part. 7. The learned counsel for the respondent relied on several decisions in support of the opinion of the High Court in the impugned judgment but they do not appear to help him. In Sathula Venkanna v. Nambudiri Venkatakrishnayya (AIR 1918 Mad 492 ) it was observed that in cases where a right to enforce specific performance vests in a third party to whom the ascertainment of the date of which performance becomes due need not necessarily be known, the doctrine certum est quod certum reddi potest does not apply. Without expressing their final opinion the learned Judges observed that it might be right to apply the doctrine between the actual parties to the contract who would get the benefit and be subject to the liabilities under that contract; "but in cases where a person is entitled to bring a suit on the contract who may not and need not, and very likely may not be aware of the date becoming fixed, " the doctrine could not apply. In Kruttiventi Mallikarjuna Rao v. Vemuri Pardhasaradhirao (AIR 1944 Mad 210) the vendor promised to execute the sale deed when both of his brothers, who were studying elsewhere, returned to the village. It was held that it was not a case where it could be said that a date was fixed for the performance of the contract as the event mentioned therein was too indefinite to be regarded as fixing a date. The performance was dependent on both the brothers of the vendor coming to the village, in which the intending purchaser had no say at all. Apart from the question of limitation, the defendant could not effectively rely upon such a clause to defeat the very contract. In Kashi Prasad v. Chhabi Lal (AIR 1933 All 410 (2)) the plaintiff created two usufructuary mortgages and thereafter a third mortgage in favour of the defendants for a sum of Rs. 8500. Out of this sum an amount of Rs. 6000 was left with the mortgagees for payment to the earlier creditors. The suit was instituted on the allegation that the defendants had failed to redeem the earlier mortgages. The plaintiff prayed for a direction to the defendants to redeem the mortgages. The document did not indicate as to the time when the defendants were obliged to redeem the earlier mortgages, and a plea of limitation was taken on the ground that the date was fixed by necessary implication and could be ascertained by reference to the surrounding circumstances. In this background the court observed that the use of the word fixed implies that it should be fixed definitely and should not be left to be gathered from surrounding circumstances of the case. All these cases are clearly distinguishable.
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in our view the answer is in the affirmative. It is true that a particular date from the calendar was not mentioned in the document and the date was not ascertainable originally, but as soon as the plaintiff redeemed the mortgage, it became an ascertained date. If the plaintiff had, immediately after the redemption, filed the suit, could it be thrown out on the ground that she was not entitled to the specific performance asked for ? We do not think so. She would have been within her rights to assert that she had performed her part of the contract and was entitled to insist that her brother should complete his part. The agreement is a typical illustration of a contingent contract within the meaning of Section 31 ofthe Indian Contract Act, 1872 and became enforceable as soon as the event of redemption (by the plaintiff herself) happened. We agree with the view of the Madras High Court in R. Muniswami Goundar v. B. M. Shamanna Gouda (AIR 1950 Mad 820 ) expressed in slightly different circumstances. The doctrine of id certum est quod certum reddi potest is clearly applicable to the case before us which in the language of Herbert Broom (in his book dealing with legal maxims) is that certainty need not be ascertained at the time; for if, in the fluxion of time, a day will arrive which will make it certain, that is sufficient. A similar question had arisen in Duncombe v. Brighton Club and Norfolk Hotel Company ((1875) 10 QB 371), relied upon in the Madras case. Under an agreement, the plaintiff had supplied some furniture to the defendant for which payment was made but after some delay. He claimed interest. The rule at common law did not allow interest in such a case, and the plaintiff in support of his claim relied upon a statutory provision which could come to his aid only if the price was payable at a certain time. Blackburn, J. observed that he did not have the slightest hesitation in saying that the agreement contemplated a particular day, which, when the goods were delivered would be ascertained, and then the money would be payable at a certain time; but rejected the plaintiffs demand on the ground that the price did not become payable by the written instrument at a certain time. The other learned Judges did not agree with him, and held that the statute did not require that the document should specify the time of payment by mentioning the day of payment. If it specified the event upon which the payment was to be made, and if the time of event was capable of being ascertained, the requirements of the section were satisfied. The same is the position in the case before us. The requirement of Article 54 is not that the actual day should necessarily be ascertained upon the face of the deed but that the basis of the calculation which was to make it certain should be found therein. We, accordingly, hold that under the agreement the date for the defendant to execute the sale deed was fixed, although not by mentioning a certain date but by a reference to the happening of a certain event, namely, the redemption of the mortgage; and, immediately after the redemption by the plaintiff, the defendant became liable to execute the sale deed which the plaintiff was entitled to enforce. The period of limitation thus started running on that date. The case is, therefore, covered by the first part of Article 54 (third column) and not the second part
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Om Aggarwal Vs. Haryana Financial Corporation & Ors | difficult to appreciate the contention of the learned counsel for the respondent Financial Corporation that any such determination can take place without notice to the defaulter. The jurisdiction of the civil courts to go into the question as to what is the amount due is expressly ousted by sub-section (4) of Section 3. In its place, the power has been given to the Managing Director under Section 3(1)(b) to determine as to what is the amount due from the defaulter. There can be no doubt that any such determination by the Managing Director will result in civil consequences ensuing. The determination being final and conclusive, would have the result of the passing of a final decree, inasmuch as the defaulters from whom any amount is found to be due, would become liable to pay the amount so determined and the Collector will have the right to recover the same as arrears of land revenue. (Emphasis supplied) 25. Applying the aforesaid principle of law to the facts of the case in hand, it is clear by mere reading of the plaint that firstly, the plaintiff was a defaulter as defined under Section 2(c) of the Act; secondly, the investment made by defendant No.1- Corporation pursuant to an agreement dated 16.07.1996 was in the nature of the financial assistance as defined under Section 2 (d) of the Act; thirdly, the demand raised by the respondent was in relation to the amount given by way of financial assistance under Section 3 of the Act and lastly, the subject matter of the suit viz., challenge to the legality of the agreement and the demand fell under Section 3(4)(a) and (b) of the Act. 26. In the light of the four aforementioned facts, which are clearly discernable from the averments made in the plaint, we are of the considered opinion that the provisions of the Act get attracted to the case in hand which, in turn, attract the bar contained in sub-section (4) of Section 3 in filing the civil suit by the defaulter. The suit is, therefore, apparently barred by virtue of bar contained in Section 3(4) of the Act. It was thus rightly dismissed by the courts below by taking recourse to Order VII Rule 11 (d) of the Code. 27. We do not find any force in the submission urged by the learned counsel for the plaintiff that on the basis of law laid down in Unique Butyle case (supra), the suit should be held as maintainable for adjudication of the reliefs claimed therein on merits. 28. On perusal of the decision rendered in Unique Butyle case (supra), it is clear that the said decision was rendered in a writ petition filed by the defaulter against the Corporation wherein the question involved was whether the proceedings for recovery initiated by the U.P. Financial Corporation under the U. P. Public Moneys (Recovery of Dues) Act, 1972 are maintainable in view of Section 34(2) of the Recovery of Debts Due to Banks and Financial Institutions Act 1993. 29. This Court examined the aforesaid question in the light of the provisions of the aforementioned two Acts and held that the proceedings initiated under the U. P. Public Moneys (Recovery of Dues) Act, 1972, are not maintainable in view of overriding effect given to the Central Act by virtue of Section 34(2) of the Central Act over the State Act. 30. It is pertinent to mention that while deciding the question, their Lordships took note of the law laid down in S.K. Bhargava case (supra) and held that the provisions of U.P. Act and that of the Haryana Act are not similar. This is what was held in para 15: We may notice here that to strengthen his arguments, learned counsel for the appellant referred to the decision of this Court in S.K. Bhargava vs. Collector, Chandigarh. The said case related to the Haryana Public Moneys (Recovery of Dues) Act, 1979 (in short the Haryana Act). With reference to certain observations in para 8 of the said judgment, it was submitted that a process of adjudication is inbuilt, even when the Managing Director of the Corporation takes action. We notice that Section 3 of the Haryana Act is couched differently from Section 3 of the U.P. Act. Reference was made in the said case to Director of Industries Case, (1980) 2 SCC 332 and held that while upholding the validity of Section 3 of the U.P. Act, the Court was not called upon to deal with the question as to whether the principles of natural justice were implicit in the said Section. We also do not think it necessary to go into that question. 31. In the light of several distinguishing features noticed in the case in hand and the facts of Unique Butyle case (supra) such as the question as to whether the suit filed in the Civil Court was barred or not, which is the subject matter of this case, was not decided in Unique Butyle case. Secondly, the case in hand arose out of Haryana Act whereas the Unique Butyle case (supra) arose out of U.P Act and thirdly, both Haryana Act and U.P. Act were held not identical in their wordings. 32. In the light of these distinguished features, no reliance can be placed on the law laid down in Unique Butyle case (supra) for deciding the issue involved in the present case. It has, in our considered opinion, no application to the case in hand. 33. Before parting with the case, we consider it apposite to clarify that we have not examined the legality and correctness of the demand on its merits once it is held that Civil Court has no jurisdiction to entertain the civil suit. In other words, once it is held that the Civil Court has no jurisdiction to try the suit on merits, the question as to whether the demand impugned in the suit is legal or not cannot be gone into nor it was gone into. | 0[ds]20. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in this appeal22. An application for rejection of the plaint can be filed, if the allegations made in the plaint taken to be correct as a whole on its face value show the suit to be barred by any law. The question as to whether a suit is barred by any law or not would always depend upon the facts and circumstances of each case. However, for deciding this question, only the averments made in the plaint are relevant. Since the question of jurisdiction of the Civil Court to entertain and try the civil suit goes to the very root of the case and hence it can be raised at any time by the defendant by taking recourse to the provisions of Order VII Rule 11 of the Code. Indeed, this principle of law is well settled23. So far as the provisions of the Act are concerned, Section 3 of the Act empowers the Corporation to make recovery of its outstanding dues from the defaulter as arrears of land revenue by getting the certificate of recovery of the amount issued from the competent authority whereas sub-section (4) of Section 3 in clear terms takes away the jurisdiction of the Civil Court to entertain or/and adjudicate any case relating to the recovery of any sum due from the defaulter. It also takes away the jurisdiction of Civil Court to proceed with any pending case involving such issue. If any such case is pending on the date of commencement of the Act, such case shall stand abate26. In the light of the four aforementioned facts, which are clearly discernable from the averments made in the plaint, we are of the considered opinion that the provisions of the Act get attracted to the case in hand which, in turn, attract the bar contained in sub-section (4) of Section 3 in filing the civil suit by the defaulter. The suit is, therefore, apparently barred by virtue of bar contained in Section 3(4) of the Act. It was thus rightly dismissed by the courts below by taking recourse to Order VII Rule 11 (d) of the Code27. We do not find any force in the submission urged by the learned counsel for the plaintiff that on the basis of law laid down in Unique Butyle case (supra), the suit should be held as maintainable for adjudication of the reliefs claimed therein on merits33. Before parting with the case, we consider it apposite to clarify that we have not examined the legality and correctness of the demand on its merits once it is held that Civil Court has no jurisdiction to entertain the civil suit. In other words, once it is held that the Civil Court has no jurisdiction to try the suit on merits, the question as to whether the demand impugned in the suit is legal or not cannot be gone into nor it was gone into. | 0 | 3,962 | 554 | ### Instruction:
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difficult to appreciate the contention of the learned counsel for the respondent Financial Corporation that any such determination can take place without notice to the defaulter. The jurisdiction of the civil courts to go into the question as to what is the amount due is expressly ousted by sub-section (4) of Section 3. In its place, the power has been given to the Managing Director under Section 3(1)(b) to determine as to what is the amount due from the defaulter. There can be no doubt that any such determination by the Managing Director will result in civil consequences ensuing. The determination being final and conclusive, would have the result of the passing of a final decree, inasmuch as the defaulters from whom any amount is found to be due, would become liable to pay the amount so determined and the Collector will have the right to recover the same as arrears of land revenue. (Emphasis supplied) 25. Applying the aforesaid principle of law to the facts of the case in hand, it is clear by mere reading of the plaint that firstly, the plaintiff was a defaulter as defined under Section 2(c) of the Act; secondly, the investment made by defendant No.1- Corporation pursuant to an agreement dated 16.07.1996 was in the nature of the financial assistance as defined under Section 2 (d) of the Act; thirdly, the demand raised by the respondent was in relation to the amount given by way of financial assistance under Section 3 of the Act and lastly, the subject matter of the suit viz., challenge to the legality of the agreement and the demand fell under Section 3(4)(a) and (b) of the Act. 26. In the light of the four aforementioned facts, which are clearly discernable from the averments made in the plaint, we are of the considered opinion that the provisions of the Act get attracted to the case in hand which, in turn, attract the bar contained in sub-section (4) of Section 3 in filing the civil suit by the defaulter. The suit is, therefore, apparently barred by virtue of bar contained in Section 3(4) of the Act. It was thus rightly dismissed by the courts below by taking recourse to Order VII Rule 11 (d) of the Code. 27. We do not find any force in the submission urged by the learned counsel for the plaintiff that on the basis of law laid down in Unique Butyle case (supra), the suit should be held as maintainable for adjudication of the reliefs claimed therein on merits. 28. On perusal of the decision rendered in Unique Butyle case (supra), it is clear that the said decision was rendered in a writ petition filed by the defaulter against the Corporation wherein the question involved was whether the proceedings for recovery initiated by the U.P. Financial Corporation under the U. P. Public Moneys (Recovery of Dues) Act, 1972 are maintainable in view of Section 34(2) of the Recovery of Debts Due to Banks and Financial Institutions Act 1993. 29. This Court examined the aforesaid question in the light of the provisions of the aforementioned two Acts and held that the proceedings initiated under the U. P. Public Moneys (Recovery of Dues) Act, 1972, are not maintainable in view of overriding effect given to the Central Act by virtue of Section 34(2) of the Central Act over the State Act. 30. It is pertinent to mention that while deciding the question, their Lordships took note of the law laid down in S.K. Bhargava case (supra) and held that the provisions of U.P. Act and that of the Haryana Act are not similar. This is what was held in para 15: We may notice here that to strengthen his arguments, learned counsel for the appellant referred to the decision of this Court in S.K. Bhargava vs. Collector, Chandigarh. The said case related to the Haryana Public Moneys (Recovery of Dues) Act, 1979 (in short the Haryana Act). With reference to certain observations in para 8 of the said judgment, it was submitted that a process of adjudication is inbuilt, even when the Managing Director of the Corporation takes action. We notice that Section 3 of the Haryana Act is couched differently from Section 3 of the U.P. Act. Reference was made in the said case to Director of Industries Case, (1980) 2 SCC 332 and held that while upholding the validity of Section 3 of the U.P. Act, the Court was not called upon to deal with the question as to whether the principles of natural justice were implicit in the said Section. We also do not think it necessary to go into that question. 31. In the light of several distinguishing features noticed in the case in hand and the facts of Unique Butyle case (supra) such as the question as to whether the suit filed in the Civil Court was barred or not, which is the subject matter of this case, was not decided in Unique Butyle case. Secondly, the case in hand arose out of Haryana Act whereas the Unique Butyle case (supra) arose out of U.P Act and thirdly, both Haryana Act and U.P. Act were held not identical in their wordings. 32. In the light of these distinguished features, no reliance can be placed on the law laid down in Unique Butyle case (supra) for deciding the issue involved in the present case. It has, in our considered opinion, no application to the case in hand. 33. Before parting with the case, we consider it apposite to clarify that we have not examined the legality and correctness of the demand on its merits once it is held that Civil Court has no jurisdiction to entertain the civil suit. In other words, once it is held that the Civil Court has no jurisdiction to try the suit on merits, the question as to whether the demand impugned in the suit is legal or not cannot be gone into nor it was gone into.
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20. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in this appeal22. An application for rejection of the plaint can be filed, if the allegations made in the plaint taken to be correct as a whole on its face value show the suit to be barred by any law. The question as to whether a suit is barred by any law or not would always depend upon the facts and circumstances of each case. However, for deciding this question, only the averments made in the plaint are relevant. Since the question of jurisdiction of the Civil Court to entertain and try the civil suit goes to the very root of the case and hence it can be raised at any time by the defendant by taking recourse to the provisions of Order VII Rule 11 of the Code. Indeed, this principle of law is well settled23. So far as the provisions of the Act are concerned, Section 3 of the Act empowers the Corporation to make recovery of its outstanding dues from the defaulter as arrears of land revenue by getting the certificate of recovery of the amount issued from the competent authority whereas sub-section (4) of Section 3 in clear terms takes away the jurisdiction of the Civil Court to entertain or/and adjudicate any case relating to the recovery of any sum due from the defaulter. It also takes away the jurisdiction of Civil Court to proceed with any pending case involving such issue. If any such case is pending on the date of commencement of the Act, such case shall stand abate26. In the light of the four aforementioned facts, which are clearly discernable from the averments made in the plaint, we are of the considered opinion that the provisions of the Act get attracted to the case in hand which, in turn, attract the bar contained in sub-section (4) of Section 3 in filing the civil suit by the defaulter. The suit is, therefore, apparently barred by virtue of bar contained in Section 3(4) of the Act. It was thus rightly dismissed by the courts below by taking recourse to Order VII Rule 11 (d) of the Code27. We do not find any force in the submission urged by the learned counsel for the plaintiff that on the basis of law laid down in Unique Butyle case (supra), the suit should be held as maintainable for adjudication of the reliefs claimed therein on merits33. Before parting with the case, we consider it apposite to clarify that we have not examined the legality and correctness of the demand on its merits once it is held that Civil Court has no jurisdiction to entertain the civil suit. In other words, once it is held that the Civil Court has no jurisdiction to try the suit on merits, the question as to whether the demand impugned in the suit is legal or not cannot be gone into nor it was gone into.
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International Coach Builders Ltd Vs. Karnataka State Financial Corporation | of a company. Even assuming to the contrary, if a conflict arises, then we respectfully reiterate the view taken by the Division Bench of this court in A.P. State Financial Corporation Case (supra). This Court pointed out therein that section 29 of the SFC Act cannot override the provisions of section 29(1) and 529A of the Companies Act, 1956, inasmuch as the SFCs cannot exercise the right under section 29 ignoring a pari passu charge of the workmen. It was observed in the judgment: "Therefore, the power to sell which is given to a financial corporation under Section 29 has to be exercised consistently with the right of a pari passu charge holder. Such a right can be exercised with the consent of the pari passu charge holder or on holders of the court after making him a party to the proceedings to enforce the security. Since the charge holder is the Officer Liquidator, his power to consent is subject to the sanction of the Court." 27. This very contention based on the non-obstante clause in Section 46B of the SFC Act was rejected by pointing out that if the non-obstante clause in section 529A and section 46B conflicts with the non-obstante clause in section 529A, then the amendments to the Companies Act made in of 1985 must prevail over the non-obstante clause in section 46B of the SFC Act which was inserted in the year 1956. Far from taking a different view of the matter, we too are of the same view as has been taken in the judgment of this Court in A.P. State Financial Corporation case (supra). 28. Similar view was taken by a Division Bench of the A.P. High Court in Andhra Pradesh State Financial Corporation vs. Electrothermic (P) Ltd. & Anr. (1986 Co. Cases 402) and a learned single Judge of the Punjab High Court in Official Liquidator, Ravindra Pharmaceutical (P) Ltd. vs. Haryana Financial Corporation (Company cases Vol. 98 p. 683). 29. The Division Bench of the Gujarat High Court in C.A. No. 6303 of 1995 has, however, struck a discordant note. The Division Bench was impressed by the fact that in M.K. Ranganathan this Court had emphasised the right of a secured creditor to realize his security by standing outside the winding up of a company. It also emphasised that the proviso to section 529 of the Companies Act operates only where a secured creditor, instead of relinquishing his security and proving his debt, proceeds to realise his security. In the words of the Gujarat High Court "But the fat remains, it has yet been left at the option of the secured creditor to realise the security without proving his debt in the winding up proceedings." This seems to be the linchpin of the reasoning. 30. In our view, the reasoning of the Gujarat High Court that in case the secured creditor does not opt to realise the security, the liquidator, by dint of the proviso to section 529, does not become a charge holder in the estate of the company so as to exercise the right of a simple mortgagee as envisaged under section 100 of the Transfer of Property Act, appears to be non-sequitur. If a secured creditor does not opt to stand outside the winding up but relinquishes his security and proves his debt in the winding up, then there is no doubt that the official liquidator will come into custody of all the assets of the company in liquidation and the distribution of the assets would have to proceed in accordance with the provisions of section 529A of the Companies Act, in which case the secured creditor stands in line as an unsecured creditor. It is only when the SFC as a secured creditor opts to stand outside the winding up and seeks to realise its security that the conflict, if any, can arise. We have already indicated as to who must yield in such a clash of the titans. The fact that the liquidator or the workmen do not have a right independently to enforce the charge, unless the creditor decides to stand outside the winding up, does not make any difference to the situation, in our view. It is not the contention of the SFCs that they do not desire to exercise the option available to them of standing outside the winding up. In fact, it is their contention that as mortgages they have a right to stand outside the winding up and are not subject to the supervisory jurisdiction of the Company Court. They also contend that, unlike other mortgagees, they have a special right by reason of sections 29 of the SFC Act of taking possession of the assets and realising them by sale, transfer and so on. We are, therefore, unable to accept the reasoning of the Gujarat High Court as correct. 31. Finally, counsel for the SFCs urge that the view we are to take would obliterate the difference between a creditor opting to stay outside winding up and one who opts to prove his debts in winding up. We are unable to accept it. As a result of the amendments made by the Act of 1985 in the Companies Act, 1956, the SFCs as secured creditors, must seek leave of the Company Court for the limited purpose of ensuring that the pari passu charge in favour of the workmen is safeguarded by imposition of suitable conditions under the supervision of the Company Court. If this amounts to impeding their hitherto unimpeded rights, so be it. Such is the Parliament intendment, according to us. This impediment is of a limited nature for the specific purpose of protecting the pari passu charge of the workmens dues and subject thereto, SFCs can continue to exercise their statutory rights as secured creditors without being reduced to the status of unsecured creditors required to prove their debts in insolvency and stand in line with other unsecured creditors. Neither is the apprehension expressed justified, nor the contention sound. | 1[ds]25. Of course, even in such a situation, if the same property was mortgaged to more than one secured creditor, they had to either come to an agreement, or in the event of disagreement, there had to be a suit in which dissenting mortgagee had to be sued as a necessary party defendant. No doubt section 29 of the SFC Act was intended to place the SFCs on a better footing. But, in our view, this better footing is available only so long as the debtor is not a company or is a going company. The moment a winding up order is made in respect of a debtor company, the provisions of section 529 and 529A come into play and whatever superior rights had been ensured to SFCs under the provisions of the SFC Act are now subjected to and operate only in conjunction with the special rights given to the workmen, who as pari passuare represented by the official liquidator. We re, therefore, of the view that the unhindered right hitherto available to the SFCs to realise their security, without recourse to the Court, no longer holds true as the right vested in the official liquidator is a statutory impediment to such exercise and has to be reckoned with. And since the official liquidator can do nothing without the leave or concurrence of the Court, all necessary applications must, therefore, come to the Company Court.26. We do not really see a conflict between Section 29 of the SFC Act and the Companies Act at all, since the rights under section 29 were not intended to operate in the situation of winding up of a company. Even assuming to the contrary, if a conflict arises, then we respectfully reiterate the view taken by the Division Bench of this court in A.P. State Financial Corporation Case (supra). This Court pointed out therein that section 29 of the SFC Act cannot override the provisions of section 29(1) and 529A of the Companies Act, 1956, inasmuch as the SFCs cannot exercise the right under section 29 ignoring a pari passu charge of the workmen.In our view, the reasoning of the Gujarat High Court that in case the secured creditor does not opt to realise the security, the liquidator, by dint of the proviso to section 529, does not become a charge holder in the estate of the company so as to exercise the right of a simple mortgagee as envisaged under section 100 of the Transfer of Property Act, appears to beIf a secured creditor does not opt to stand outside the winding up but relinquishes his security and proves his debt in the winding up, then there is no doubt that the official liquidator will come into custody of all the assets of the company in liquidation and the distribution of the assets would have to proceed in accordance with the provisions of section 529A of the Companies Act, in which case the secured creditor stands in line as an unsecured creditor. It is only when the SFC as a secured creditor opts to stand outside the winding up and seeks to realise its security that the conflict, if any, can arise. We have already indicated as to who must yield in such a clash of the titans. The fact that the liquidator or the workmen do not have a right independently to enforce the charge, unless the creditor decides to stand outside the winding up, does not make any difference to the situation, in our view. It is not the contention of the SFCs that they do not desire to exercise the option available to them of standing outside the winding up. In fact, it is their contention that as mortgages they have a right to stand outside the winding up and are not subject to the supervisory jurisdiction of the Company Court. They also contend that, unlike other mortgagees, they have a special right by reason of sections 29 of the SFC Act of taking possession of the assets and realising them by sale, transfer and so on. We are, therefore, unable to accept the reasoning of the Gujarat High Court aswas a case arising under Section 232 of the Companies Act, 1913. This Court was required to consider the meaning of the provision "any sale held without leave of the Court of any of the properties" used in Section 232(1) of the Companies Act, 1913 which rendered such sales void. It was held that these words refer only to sales held through the intervention of the Court and not to sales effected by the secured creditor outside the winding up without intervention of the Court. This Court pointed out that the law in England, and under the provisions of the Companies Act in India, was the same, namely, that the secured creditor had the right of realizing his security by standing outside the winding up, in which case he was not required to seek intervention of the Court.As a result of the proviso added in Section 529, the security of every secured creditor is deemed to be subject to age in favour of the workmen to the extent of theportion, as defined in(3)(c) therein. It is further provided, that, where the secured creditor, instead of relinquishing its mortgage and providing his debt, opts to stand outside the winding up proceedings and realise his security, the Official Liquidator shall be entitled to represent the workmen and enforce such charge and that any amount realised by enforcement of such charge shall be applied ratably by the Official Liquidator for the discharge ofdues. It is true that even the amended proviso does not give the Liquidator an independent right of enforcing the charge by selling the security against which such charge is created. Nonetheless, it creates age in favour of the workmen to the extent ofdues and makes the Liquidator the representative of the workmen to enforce such a charge. By reason of Clause (c) of the newly added proviso, so much of the debt due to the secured creditor opting to realise security as could not be realized because of the specifically created rights in favour of the workmen, or the amount of theportion in the security, whichever is less, shall rank pari passu with thedues under Section 529A. Section 529A provides for overriding preferential payments ofdues and unrealised portion of the secured creditors dues, as provided in clause (c) of the proviso to Sectionthe first place, we see no such conflict between the provisions of the Companies Act as amended in 1985 and the provisions of the SFC Act, 1951. In our view, the provisions of the SFC Act were merely intended to give an expeditious remedy to the SFCs without having to go through the procedure of enforcing the mortgage under the Transfer of Properties Act, 1882. In fact, even under Section 69 of the Transfer of Property Act, under certain circumstances a mortgagee has the power to sell the mortgaged property in default of payment of mortgaged money without intervention of the court. Under the general law, the SFCs would have to file a suit for realising their security unless they qualified under section 69 of the Transfer of Property Act. This meant considerable delay and holding up of the public monies due to the SFCs. In public interest, therefore, special provisions were made by Sections 29, 20, 31 and 12 enabling the SFCs to take possession of the mortgaged assets and sell them without having to move a court of law. The provisions of Section 29 to 32 and the rights flowing thereon are exercisable under ordinary circumstances. However, when the debtor is a Company in winding up, the rights of the SFCs are affected by the provisions of the Companies Act, 1956. Looked at from this point of view, therefore, there is no conflict between the provisions of the SFC Act and the Companies Act. Assuming that there is conflict, then the judgment of this Court in A.P. State Financial Corporations vs. Official Liquidator (2000) 7 SCC 291 ) clearly holds that the amendments made in Section 529 and 529A would override and control and the rights under Section 29 of the SFC Act. Though the Companies Act may be general law, the provisions introduced therein in 1985 were intended to confer special rights on the workers and pro tanto must be treated as special law made by Parliament. Since the amendments to the Companies Act were made by a later Act of 1985, they would override the provisions of section 29 of SFC Act, 1951. We are unable to accept the contention that the view taken in A.P. State Financial Corporation (supra) needs reconsideration. Far from it, we are in agreement with the view expressed therein. | 1 | 7,490 | 1,612 | ### Instruction:
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of a company. Even assuming to the contrary, if a conflict arises, then we respectfully reiterate the view taken by the Division Bench of this court in A.P. State Financial Corporation Case (supra). This Court pointed out therein that section 29 of the SFC Act cannot override the provisions of section 29(1) and 529A of the Companies Act, 1956, inasmuch as the SFCs cannot exercise the right under section 29 ignoring a pari passu charge of the workmen. It was observed in the judgment: "Therefore, the power to sell which is given to a financial corporation under Section 29 has to be exercised consistently with the right of a pari passu charge holder. Such a right can be exercised with the consent of the pari passu charge holder or on holders of the court after making him a party to the proceedings to enforce the security. Since the charge holder is the Officer Liquidator, his power to consent is subject to the sanction of the Court." 27. This very contention based on the non-obstante clause in Section 46B of the SFC Act was rejected by pointing out that if the non-obstante clause in section 529A and section 46B conflicts with the non-obstante clause in section 529A, then the amendments to the Companies Act made in of 1985 must prevail over the non-obstante clause in section 46B of the SFC Act which was inserted in the year 1956. Far from taking a different view of the matter, we too are of the same view as has been taken in the judgment of this Court in A.P. State Financial Corporation case (supra). 28. Similar view was taken by a Division Bench of the A.P. High Court in Andhra Pradesh State Financial Corporation vs. Electrothermic (P) Ltd. & Anr. (1986 Co. Cases 402) and a learned single Judge of the Punjab High Court in Official Liquidator, Ravindra Pharmaceutical (P) Ltd. vs. Haryana Financial Corporation (Company cases Vol. 98 p. 683). 29. The Division Bench of the Gujarat High Court in C.A. No. 6303 of 1995 has, however, struck a discordant note. The Division Bench was impressed by the fact that in M.K. Ranganathan this Court had emphasised the right of a secured creditor to realize his security by standing outside the winding up of a company. It also emphasised that the proviso to section 529 of the Companies Act operates only where a secured creditor, instead of relinquishing his security and proving his debt, proceeds to realise his security. In the words of the Gujarat High Court "But the fat remains, it has yet been left at the option of the secured creditor to realise the security without proving his debt in the winding up proceedings." This seems to be the linchpin of the reasoning. 30. In our view, the reasoning of the Gujarat High Court that in case the secured creditor does not opt to realise the security, the liquidator, by dint of the proviso to section 529, does not become a charge holder in the estate of the company so as to exercise the right of a simple mortgagee as envisaged under section 100 of the Transfer of Property Act, appears to be non-sequitur. If a secured creditor does not opt to stand outside the winding up but relinquishes his security and proves his debt in the winding up, then there is no doubt that the official liquidator will come into custody of all the assets of the company in liquidation and the distribution of the assets would have to proceed in accordance with the provisions of section 529A of the Companies Act, in which case the secured creditor stands in line as an unsecured creditor. It is only when the SFC as a secured creditor opts to stand outside the winding up and seeks to realise its security that the conflict, if any, can arise. We have already indicated as to who must yield in such a clash of the titans. The fact that the liquidator or the workmen do not have a right independently to enforce the charge, unless the creditor decides to stand outside the winding up, does not make any difference to the situation, in our view. It is not the contention of the SFCs that they do not desire to exercise the option available to them of standing outside the winding up. In fact, it is their contention that as mortgages they have a right to stand outside the winding up and are not subject to the supervisory jurisdiction of the Company Court. They also contend that, unlike other mortgagees, they have a special right by reason of sections 29 of the SFC Act of taking possession of the assets and realising them by sale, transfer and so on. We are, therefore, unable to accept the reasoning of the Gujarat High Court as correct. 31. Finally, counsel for the SFCs urge that the view we are to take would obliterate the difference between a creditor opting to stay outside winding up and one who opts to prove his debts in winding up. We are unable to accept it. As a result of the amendments made by the Act of 1985 in the Companies Act, 1956, the SFCs as secured creditors, must seek leave of the Company Court for the limited purpose of ensuring that the pari passu charge in favour of the workmen is safeguarded by imposition of suitable conditions under the supervision of the Company Court. If this amounts to impeding their hitherto unimpeded rights, so be it. Such is the Parliament intendment, according to us. This impediment is of a limited nature for the specific purpose of protecting the pari passu charge of the workmens dues and subject thereto, SFCs can continue to exercise their statutory rights as secured creditors without being reduced to the status of unsecured creditors required to prove their debts in insolvency and stand in line with other unsecured creditors. Neither is the apprehension expressed justified, nor the contention sound.
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the company in liquidation and the distribution of the assets would have to proceed in accordance with the provisions of section 529A of the Companies Act, in which case the secured creditor stands in line as an unsecured creditor. It is only when the SFC as a secured creditor opts to stand outside the winding up and seeks to realise its security that the conflict, if any, can arise. We have already indicated as to who must yield in such a clash of the titans. The fact that the liquidator or the workmen do not have a right independently to enforce the charge, unless the creditor decides to stand outside the winding up, does not make any difference to the situation, in our view. It is not the contention of the SFCs that they do not desire to exercise the option available to them of standing outside the winding up. In fact, it is their contention that as mortgages they have a right to stand outside the winding up and are not subject to the supervisory jurisdiction of the Company Court. They also contend that, unlike other mortgagees, they have a special right by reason of sections 29 of the SFC Act of taking possession of the assets and realising them by sale, transfer and so on. We are, therefore, unable to accept the reasoning of the Gujarat High Court aswas a case arising under Section 232 of the Companies Act, 1913. This Court was required to consider the meaning of the provision "any sale held without leave of the Court of any of the properties" used in Section 232(1) of the Companies Act, 1913 which rendered such sales void. It was held that these words refer only to sales held through the intervention of the Court and not to sales effected by the secured creditor outside the winding up without intervention of the Court. This Court pointed out that the law in England, and under the provisions of the Companies Act in India, was the same, namely, that the secured creditor had the right of realizing his security by standing outside the winding up, in which case he was not required to seek intervention of the Court.As a result of the proviso added in Section 529, the security of every secured creditor is deemed to be subject to age in favour of the workmen to the extent of theportion, as defined in(3)(c) therein. It is further provided, that, where the secured creditor, instead of relinquishing its mortgage and providing his debt, opts to stand outside the winding up proceedings and realise his security, the Official Liquidator shall be entitled to represent the workmen and enforce such charge and that any amount realised by enforcement of such charge shall be applied ratably by the Official Liquidator for the discharge ofdues. It is true that even the amended proviso does not give the Liquidator an independent right of enforcing the charge by selling the security against which such charge is created. Nonetheless, it creates age in favour of the workmen to the extent ofdues and makes the Liquidator the representative of the workmen to enforce such a charge. By reason of Clause (c) of the newly added proviso, so much of the debt due to the secured creditor opting to realise security as could not be realized because of the specifically created rights in favour of the workmen, or the amount of theportion in the security, whichever is less, shall rank pari passu with thedues under Section 529A. Section 529A provides for overriding preferential payments ofdues and unrealised portion of the secured creditors dues, as provided in clause (c) of the proviso to Sectionthe first place, we see no such conflict between the provisions of the Companies Act as amended in 1985 and the provisions of the SFC Act, 1951. In our view, the provisions of the SFC Act were merely intended to give an expeditious remedy to the SFCs without having to go through the procedure of enforcing the mortgage under the Transfer of Properties Act, 1882. In fact, even under Section 69 of the Transfer of Property Act, under certain circumstances a mortgagee has the power to sell the mortgaged property in default of payment of mortgaged money without intervention of the court. Under the general law, the SFCs would have to file a suit for realising their security unless they qualified under section 69 of the Transfer of Property Act. This meant considerable delay and holding up of the public monies due to the SFCs. In public interest, therefore, special provisions were made by Sections 29, 20, 31 and 12 enabling the SFCs to take possession of the mortgaged assets and sell them without having to move a court of law. The provisions of Section 29 to 32 and the rights flowing thereon are exercisable under ordinary circumstances. However, when the debtor is a Company in winding up, the rights of the SFCs are affected by the provisions of the Companies Act, 1956. Looked at from this point of view, therefore, there is no conflict between the provisions of the SFC Act and the Companies Act. Assuming that there is conflict, then the judgment of this Court in A.P. State Financial Corporations vs. Official Liquidator (2000) 7 SCC 291 ) clearly holds that the amendments made in Section 529 and 529A would override and control and the rights under Section 29 of the SFC Act. Though the Companies Act may be general law, the provisions introduced therein in 1985 were intended to confer special rights on the workers and pro tanto must be treated as special law made by Parliament. Since the amendments to the Companies Act were made by a later Act of 1985, they would override the provisions of section 29 of SFC Act, 1951. We are unable to accept the contention that the view taken in A.P. State Financial Corporation (supra) needs reconsideration. Far from it, we are in agreement with the view expressed therein.
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Union Of India Vs. M/S.Gtc Industries Ltd., Bombay | appearing for the GTC before the High Court confined his arguments to the issue of infringement of the violation of Principles of Natural Justice only. The High Court held that denial of opportunity to the GTC to cross-examine Shri Sailo, Lalchunganga and Liangtilinga was nothing short of denial of reasonable opportunity to the Writ Petitioner to defend and establish its version. That the same amounted to the breach of Principles of Natural Justice. On this basis the final adjudication order of Collector was set aside and the matter was remitted back with the direction to resume the proceedings and issue summons to the partners of NET for necessary cross-examination by GTC and thereafter to decide the matter afresh. 10. Learned Senior Counsel appearing for the Union of India Mr. Jaideep Gupta submitted that no statement was taken from Shri Sailo by the authorities nor did the authorities rely upon any statement of Shri Sailo against GTC. That it was not a case where the evidence had been produced by the appellant in support of its case and no opportunity of cross-examination was given to the other side. Notice could not be issued to Shir Sailo under Section 14 of the Act to compel his attendance and to make a statement coupled with the opportunity to the GTC to cross-examine him. That Shri Sailo being a co-notice, could not be compelled to e appear as witness against himself. Non-summoning of a co-notice for the purpose of cross-examination by another co-notice did not amount to breach of Principles of Natural Justice. In the alternative, it was submitted that in a case based on violation of Principles of Natural Justice, it is to be shown that some prejudice was caused to the aggrieved person because of the alleged breach of violation of Principles of Natural Justice. It was vehemently contended that the Collector incoming to the finding that the GTC was the real manufacturer and the NET its front company did not rely upon the statement of Shri Sailo. In coming to this finding the Collector had primarily placed reliance on the statements of other persons. 11. Per contra, Shri Ganesh who appeared for the respondent fairly conceded that he could not support the direction issued by the High Court to summon Shri Sailo under Section 14 of the Act and produce him for cross - examination by the GTC. But he entered a caveat to the submission of the counsel for the appellant that the Collector had not placed reliance on the statement of Shir Sailo. Relying upon the findings recorded by the High Court, it was contended that the order of the Collector was based on the statement/submissions made by Shri Sailo before the authorities. That the statement/submissions of Shri Sailo could not be relied upon for recording an adverse order against the GTC.12. Submissions put forth by the counsel appearing for the Union of India cannot be accepted. It is an admitted case before us that Shri Sailo, Lalchunganga or Liangtilinga did not file any response by way of a written reply. Their statements were also not recorded. Shri Sailo appeared before the Collector on 25th November, 1989 in the absence of the representatives of GTC, on which date the collector recorded the submissions of Shri Sailo. At the subsequent hearing which took place on 1st May, 1990, representatives of GTC attended the proceedings but were not given any notice or information about the submissions/statement made by Shri Sailo on 25th November, 1989. Thereafter, on 15th May, 1990, Collector passed his order in original quoting extensively from the submissions/statement made before him by Shri Sailo which ran into three pages which itself makes it clear that the Collector had placed strong reliance on the submissions/statement of Shri Sailo. It is specifically recorded in the order that the departmental representatives who appeared befoe the Collector had also placed strong reliance on the submissions/statement of Shri Sailo. The Collectors order is based largely and substantially if not entirely on the submissions of Shri Sailo. The High Court in paragraphs 27 and 28 of its judgment has also recorded a finding that the Collector in its order had substantially relied upon the submissions made by Shri Sailo. In paragraph 27 it is recorded: "It may also here be noted that the Collector in his adjudication order, made on 15th May, 1990, has substantially relied upon the statement of Shri Sailo which was made to the Collector at a personal hearing." 13. In paragraph 28, it is observed: "The utilisation of Shri Sailos statement in itself shows that the statement of Mr. Sailo was indeed not only necessary but of substantial importance in the consideration and proper adjudication on the version of the petitioner." 14. Counsel for the appellants failed to displace the finding recorded by the High court on this point. Contention of the counsel for the Union of India that the order of the Collector should be sustained by ignoring the submissions/statement of Shri Sailo as there was other sufficient material on record to sustain and justify the said order cannot be accepted. It may not be possible for us to separate or disentangle the submissions of Shri Sailo from other material evidence on record. It is well settled that a quasi-judicial order has to be judged on the basis of reasoning contained therein and not on the basis of pleas put forward by the person seeking to sustain the order in its counter affidavit or oral arguments before the court.15. It is apt to note here that no statement was made by Shri Salio before the adjudicating authority. What is referred to as statement of Shri Salio is nothing but his oral submissions made at the hearing.16. An adverse finding could not have been recorded against the GTC by relying upon the oral submissions made by a co-noticee at the hearing without any supporting material on record, providing due opportunity to GTC to meet the same.17. For the reasons stated above, | 1[ds]It may not be possible for us to separate or disentangle the submissions of Shri Sailo from other material evidence on record. It is well settled that a quasi-judicial order has to be judged on the basis of reasoning contained therein and not on the basis of pleas put forward by the person seeking to sustain the order in its counter affidavit or oral arguments before the court.15. It is apt to note here that no statement was made by Shri Salio before the adjudicating authority. What is referred to as statement of Shri Salio is nothing but his oral submissions made at the hearing.16. An adverse finding could not have been recorded against the GTC by relying upon the oral submissions made by a co-noticee at the hearing without any supporting material on record, providing due opportunity to GTC to meet the same. | 1 | 2,287 | 154 | ### Instruction:
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appearing for the GTC before the High Court confined his arguments to the issue of infringement of the violation of Principles of Natural Justice only. The High Court held that denial of opportunity to the GTC to cross-examine Shri Sailo, Lalchunganga and Liangtilinga was nothing short of denial of reasonable opportunity to the Writ Petitioner to defend and establish its version. That the same amounted to the breach of Principles of Natural Justice. On this basis the final adjudication order of Collector was set aside and the matter was remitted back with the direction to resume the proceedings and issue summons to the partners of NET for necessary cross-examination by GTC and thereafter to decide the matter afresh. 10. Learned Senior Counsel appearing for the Union of India Mr. Jaideep Gupta submitted that no statement was taken from Shri Sailo by the authorities nor did the authorities rely upon any statement of Shri Sailo against GTC. That it was not a case where the evidence had been produced by the appellant in support of its case and no opportunity of cross-examination was given to the other side. Notice could not be issued to Shir Sailo under Section 14 of the Act to compel his attendance and to make a statement coupled with the opportunity to the GTC to cross-examine him. That Shri Sailo being a co-notice, could not be compelled to e appear as witness against himself. Non-summoning of a co-notice for the purpose of cross-examination by another co-notice did not amount to breach of Principles of Natural Justice. In the alternative, it was submitted that in a case based on violation of Principles of Natural Justice, it is to be shown that some prejudice was caused to the aggrieved person because of the alleged breach of violation of Principles of Natural Justice. It was vehemently contended that the Collector incoming to the finding that the GTC was the real manufacturer and the NET its front company did not rely upon the statement of Shri Sailo. In coming to this finding the Collector had primarily placed reliance on the statements of other persons. 11. Per contra, Shri Ganesh who appeared for the respondent fairly conceded that he could not support the direction issued by the High Court to summon Shri Sailo under Section 14 of the Act and produce him for cross - examination by the GTC. But he entered a caveat to the submission of the counsel for the appellant that the Collector had not placed reliance on the statement of Shir Sailo. Relying upon the findings recorded by the High Court, it was contended that the order of the Collector was based on the statement/submissions made by Shri Sailo before the authorities. That the statement/submissions of Shri Sailo could not be relied upon for recording an adverse order against the GTC.12. Submissions put forth by the counsel appearing for the Union of India cannot be accepted. It is an admitted case before us that Shri Sailo, Lalchunganga or Liangtilinga did not file any response by way of a written reply. Their statements were also not recorded. Shri Sailo appeared before the Collector on 25th November, 1989 in the absence of the representatives of GTC, on which date the collector recorded the submissions of Shri Sailo. At the subsequent hearing which took place on 1st May, 1990, representatives of GTC attended the proceedings but were not given any notice or information about the submissions/statement made by Shri Sailo on 25th November, 1989. Thereafter, on 15th May, 1990, Collector passed his order in original quoting extensively from the submissions/statement made before him by Shri Sailo which ran into three pages which itself makes it clear that the Collector had placed strong reliance on the submissions/statement of Shri Sailo. It is specifically recorded in the order that the departmental representatives who appeared befoe the Collector had also placed strong reliance on the submissions/statement of Shri Sailo. The Collectors order is based largely and substantially if not entirely on the submissions of Shri Sailo. The High Court in paragraphs 27 and 28 of its judgment has also recorded a finding that the Collector in its order had substantially relied upon the submissions made by Shri Sailo. In paragraph 27 it is recorded: "It may also here be noted that the Collector in his adjudication order, made on 15th May, 1990, has substantially relied upon the statement of Shri Sailo which was made to the Collector at a personal hearing." 13. In paragraph 28, it is observed: "The utilisation of Shri Sailos statement in itself shows that the statement of Mr. Sailo was indeed not only necessary but of substantial importance in the consideration and proper adjudication on the version of the petitioner." 14. Counsel for the appellants failed to displace the finding recorded by the High court on this point. Contention of the counsel for the Union of India that the order of the Collector should be sustained by ignoring the submissions/statement of Shri Sailo as there was other sufficient material on record to sustain and justify the said order cannot be accepted. It may not be possible for us to separate or disentangle the submissions of Shri Sailo from other material evidence on record. It is well settled that a quasi-judicial order has to be judged on the basis of reasoning contained therein and not on the basis of pleas put forward by the person seeking to sustain the order in its counter affidavit or oral arguments before the court.15. It is apt to note here that no statement was made by Shri Salio before the adjudicating authority. What is referred to as statement of Shri Salio is nothing but his oral submissions made at the hearing.16. An adverse finding could not have been recorded against the GTC by relying upon the oral submissions made by a co-noticee at the hearing without any supporting material on record, providing due opportunity to GTC to meet the same.17. For the reasons stated above,
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It may not be possible for us to separate or disentangle the submissions of Shri Sailo from other material evidence on record. It is well settled that a quasi-judicial order has to be judged on the basis of reasoning contained therein and not on the basis of pleas put forward by the person seeking to sustain the order in its counter affidavit or oral arguments before the court.15. It is apt to note here that no statement was made by Shri Salio before the adjudicating authority. What is referred to as statement of Shri Salio is nothing but his oral submissions made at the hearing.16. An adverse finding could not have been recorded against the GTC by relying upon the oral submissions made by a co-noticee at the hearing without any supporting material on record, providing due opportunity to GTC to meet the same.
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Regional Assistant Commissioner Of Sales Tax,Indore Vs. Malwa Vanaspati & Chemical Company Ltd | taken within the period prescribed under the Act for commencing the proceeding for bringing to tax turnover which has escaped assessment and therefore a notice issued under sub-section (2) of Section 11 of the C. P. and Berar Sales Tax Act more than three vears after the last day of the year of assessment is unauthorised, and no further proceeding for assessment may thereafter be had even in respect of the return duly submitted by the dealer. In our view the contention is wholly misconceived. In Ghanshyam Dass case, 1964-4 SCR 436 = (AIR 1964 SC 766 ) the Court was dealing with a proceeding for assessment under the C. P. and Berar Sales Act, 1947 the relevant provisions whereof relating to assessment and re-assessment are similar to, but not identical with, the provisions of the Madhya Bharat Sales Tax Act. 1950. This Court held in that case that a proceeding for assessment of sales tax remains pending from the time when it is initiated until it is determined by a final order of assessment and the turnover or any part thereof of a dealer has not escaped assessment so long as the assessment proceeding is not completed: that a proceeding of assessment commences against a registered dealer when he files his return, and against an unregistered dealer when the Commissioner calls upon him to file the return of his turnover, and that where the registered dealer has not filed a return the proceeding commences when the Commissioner issues a notice either under Section 10 (3) or under Section 11 (4) of the C P. and Berar Sales Tax Act, and not till then. Under Section 11-A of the C. P. and Berar Sales Tax Act. 1947, the Commissioner is entitled to re-assess or assess the turnover within three years from the expiry of the period for which the tax is due and the turnover has either escaped assessment or has been underassessed. This Court in Ghanshyam Dass case. 1964-4 SCR 436 = (AIR 1964 SC 766 ) in dealing with the case of a registered dealer under the C. P. and Berar Sales Tax Act. 1947 decided that the Sales Tax Authority had no jurisdiction to issue a notice of assessment after the expiry of three years in respect of the quarter other than that covered by the return made by the dealer, or in respect of the quaters beyond three years from the date of the issue of the notice where no return had been filed by the dealer. There is nothing in the judgment in Ghanshyam Dass case. 1964-4 SCR 436 = (AIR l964 SC 766) which supports the view that if the dealer has made a return of his turnover, the assessing authority is incompetent to proceed to assess the turnover by issuing a notice calling upon the dealer to produce evidence to explain or support the return, after the expiry of the period prescribed under Section 11 A of the C. P. and Berar Sales Tax Act.8. The following observation on which counsel relied"It is manifest that in the case of a registered dealer the proceedings before the Commissioner starts factually when a return is made or when a notice is issued to him either under Sec. 10(3) or under Sec. 11(2) of the Act" is the result of a typographical error. S.10 (3) of the C.P. and Berar Sales Tax Act in so far as it relates to a registered dealer authorises the Commissioner to impose a penalty upon the dealer who has failed to furnish a return as required by Section 10 (1). S. 11(2) of that Act authorises the Commissioner to call upon a dealer registered or unregistered, by notice to appear in person or by agent and to produce evidence in support of his return. Section 11 (4) authorises the Commissioner after giving notice to a registered dealer to record a "best judgment" assessment, if the dealer has failed to submit a return, or having filed a return has failed to comply with a notice under Section 11(2) or has not regularly employed any method of accounting or the method of accounting is such that assessment cannot properly be made on the basis thereof. Reading Sections 10 (1), 10 (3) and 11 (2) and 11 (4) of the C. P. and Berar Sales Tax Act together, it is clear that against a registered dealer the proceeding for assessment commences when he submits a return and if he does not submit a return the proceeding for assessment commences when a notice under Section 10 (3) or under Section 11 (4) is issued. In our view the words "Section 10 (3) or under Section 11 (2)" in the judgment in Ghanshyam Dass case. 1964-4 SCR 436 = (AIR 1964 SC 766 ) should have been "Section 10 (3) or under Section 11 (4) (a)." This is made clear in the earlier paragraph where Subba Rao. J. observed."Even in a case where no return has been made, but the Commissioner initiated proceedings by issuing a relevant notice either under Section 10 (3) or under Section 11 (4). the proceedings wild be pending thereafter before the Commissioner till the final assessment is made"There is nothing in the judgment in Ghanshyam Dass case, 1964-4 SCR 436 = (AIR 1964 SC 766 ) which supports the contention that a proceeding already commenced by the fling of a return by a registered dealer under Section 10 (1) commences afresh when a notice under Section 11 (2) of the C. P. and Berar Sales Tax Act, 1947, is issued.The notice under Section 11 (2) is only a step in the proceeding for assessment and does not disturb the continuity of the proceeding. Therefore when the Sales Tax Officer issued a notice against the respondent under section 8 (2) of the Madhya Bharat Sales Tax Act, 1950, a fresh proceeding to assess turnover which has escaped assessment was not commenced, and Section 10 of the Act was not attracted thereto.9. | 1[ds]There is no doubt that where the clearer has not filed the prescribed return of his turnover, the case is clearly one of "escaped assessment", and the proceeding for assessment must commence in respect of that turnover within the period prescribed by S. 10. Where however a return is filed by a dealer under S. 7, a proceeding for assessment commences, and a notice under sub-s. (2) of S. 8 is a step in the proceeding for completing the assessment. The Act contains no Provision that the proceeding shall be completed within any fixed period; the assessing authority is therefore entitled to complete the proceeding properly commenced without any restriction as to time. If a proceeding for assessment is completed, and it is found that any turnover has escaped assessment, the proceeding for bringing to tax that turnover must be commenced within three years next succeeding the year to which the tax relates. Since in the present case the proceeding for assessment had already commenced when the respondent flied the return, that proceeding could be completed by the assessing authority at any time, and the issue of a notice under sub-s. (2) of S. 8 does not, in our judgment, attract the bar of S. 10 of the Madhya Bharat Sales Tax Act,our view the contention is wholly misconceived. In Ghanshyam Dass case, 1964-4 SCR 436 = (AIR 1964 SC 766 ) the Court was dealing with a proceeding for assessment under the C. P. and Berar Sales Act, 1947 the relevant provisions whereof relating to assessment and re-assessment are similar to, but not identical with, the provisions of the Madhya Bharat Sales Tax Act.is nothing in the judgment in Ghanshyam Dass case. 1964-4 SCR 436 = (AIR l964 SC 766) which supports the view that if the dealer has made a return of his turnover, the assessing authority is incompetent to proceed to assess the turnover by issuing a notice calling upon the dealer to produce evidence to explain or support the return, after the expiry of the period prescribed under Section 11 A of the C. P. and Berar Sales Taxour view the words"Section 10 (3) or under Section 11(2)" in the judgment in Ghanshyam Dass case. 1964-4 SCR 436 = (AIR 1964 SC 766 ) should have been"Section 10 (3) or under Section 11e is nothing in the judgment in Ghanshyam Dass case, 1964-4 SCR 436 = (AIR 1964 SC 766 ) which supports the contention that a proceeding already commenced by the fling of a return by a registered dealer under Section 10 (1) commences afresh when a notice under Section 11 (2) of the C. P. and Berar Sales Tax Act, 1947, is issued.The notice under Section 11 (2) is only a step in the proceeding for assessment and does not disturb the continuity of the proceeding. Therefore when the Sales Tax Officer issued a notice against the respondent under section 8 (2) of the Madhya Bharat Sales Tax Act, 1950, a fresh proceeding to assess turnover which has escaped assessment was not commenced, and Section 10 of the Act was not attracted thereto. | 1 | 2,954 | 588 | ### Instruction:
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taken within the period prescribed under the Act for commencing the proceeding for bringing to tax turnover which has escaped assessment and therefore a notice issued under sub-section (2) of Section 11 of the C. P. and Berar Sales Tax Act more than three vears after the last day of the year of assessment is unauthorised, and no further proceeding for assessment may thereafter be had even in respect of the return duly submitted by the dealer. In our view the contention is wholly misconceived. In Ghanshyam Dass case, 1964-4 SCR 436 = (AIR 1964 SC 766 ) the Court was dealing with a proceeding for assessment under the C. P. and Berar Sales Act, 1947 the relevant provisions whereof relating to assessment and re-assessment are similar to, but not identical with, the provisions of the Madhya Bharat Sales Tax Act. 1950. This Court held in that case that a proceeding for assessment of sales tax remains pending from the time when it is initiated until it is determined by a final order of assessment and the turnover or any part thereof of a dealer has not escaped assessment so long as the assessment proceeding is not completed: that a proceeding of assessment commences against a registered dealer when he files his return, and against an unregistered dealer when the Commissioner calls upon him to file the return of his turnover, and that where the registered dealer has not filed a return the proceeding commences when the Commissioner issues a notice either under Section 10 (3) or under Section 11 (4) of the C P. and Berar Sales Tax Act, and not till then. Under Section 11-A of the C. P. and Berar Sales Tax Act. 1947, the Commissioner is entitled to re-assess or assess the turnover within three years from the expiry of the period for which the tax is due and the turnover has either escaped assessment or has been underassessed. This Court in Ghanshyam Dass case. 1964-4 SCR 436 = (AIR 1964 SC 766 ) in dealing with the case of a registered dealer under the C. P. and Berar Sales Tax Act. 1947 decided that the Sales Tax Authority had no jurisdiction to issue a notice of assessment after the expiry of three years in respect of the quarter other than that covered by the return made by the dealer, or in respect of the quaters beyond three years from the date of the issue of the notice where no return had been filed by the dealer. There is nothing in the judgment in Ghanshyam Dass case. 1964-4 SCR 436 = (AIR l964 SC 766) which supports the view that if the dealer has made a return of his turnover, the assessing authority is incompetent to proceed to assess the turnover by issuing a notice calling upon the dealer to produce evidence to explain or support the return, after the expiry of the period prescribed under Section 11 A of the C. P. and Berar Sales Tax Act.8. The following observation on which counsel relied"It is manifest that in the case of a registered dealer the proceedings before the Commissioner starts factually when a return is made or when a notice is issued to him either under Sec. 10(3) or under Sec. 11(2) of the Act" is the result of a typographical error. S.10 (3) of the C.P. and Berar Sales Tax Act in so far as it relates to a registered dealer authorises the Commissioner to impose a penalty upon the dealer who has failed to furnish a return as required by Section 10 (1). S. 11(2) of that Act authorises the Commissioner to call upon a dealer registered or unregistered, by notice to appear in person or by agent and to produce evidence in support of his return. Section 11 (4) authorises the Commissioner after giving notice to a registered dealer to record a "best judgment" assessment, if the dealer has failed to submit a return, or having filed a return has failed to comply with a notice under Section 11(2) or has not regularly employed any method of accounting or the method of accounting is such that assessment cannot properly be made on the basis thereof. Reading Sections 10 (1), 10 (3) and 11 (2) and 11 (4) of the C. P. and Berar Sales Tax Act together, it is clear that against a registered dealer the proceeding for assessment commences when he submits a return and if he does not submit a return the proceeding for assessment commences when a notice under Section 10 (3) or under Section 11 (4) is issued. In our view the words "Section 10 (3) or under Section 11 (2)" in the judgment in Ghanshyam Dass case. 1964-4 SCR 436 = (AIR 1964 SC 766 ) should have been "Section 10 (3) or under Section 11 (4) (a)." This is made clear in the earlier paragraph where Subba Rao. J. observed."Even in a case where no return has been made, but the Commissioner initiated proceedings by issuing a relevant notice either under Section 10 (3) or under Section 11 (4). the proceedings wild be pending thereafter before the Commissioner till the final assessment is made"There is nothing in the judgment in Ghanshyam Dass case, 1964-4 SCR 436 = (AIR 1964 SC 766 ) which supports the contention that a proceeding already commenced by the fling of a return by a registered dealer under Section 10 (1) commences afresh when a notice under Section 11 (2) of the C. P. and Berar Sales Tax Act, 1947, is issued.The notice under Section 11 (2) is only a step in the proceeding for assessment and does not disturb the continuity of the proceeding. Therefore when the Sales Tax Officer issued a notice against the respondent under section 8 (2) of the Madhya Bharat Sales Tax Act, 1950, a fresh proceeding to assess turnover which has escaped assessment was not commenced, and Section 10 of the Act was not attracted thereto.9.
### Response:
1
### Explanation:
There is no doubt that where the clearer has not filed the prescribed return of his turnover, the case is clearly one of "escaped assessment", and the proceeding for assessment must commence in respect of that turnover within the period prescribed by S. 10. Where however a return is filed by a dealer under S. 7, a proceeding for assessment commences, and a notice under sub-s. (2) of S. 8 is a step in the proceeding for completing the assessment. The Act contains no Provision that the proceeding shall be completed within any fixed period; the assessing authority is therefore entitled to complete the proceeding properly commenced without any restriction as to time. If a proceeding for assessment is completed, and it is found that any turnover has escaped assessment, the proceeding for bringing to tax that turnover must be commenced within three years next succeeding the year to which the tax relates. Since in the present case the proceeding for assessment had already commenced when the respondent flied the return, that proceeding could be completed by the assessing authority at any time, and the issue of a notice under sub-s. (2) of S. 8 does not, in our judgment, attract the bar of S. 10 of the Madhya Bharat Sales Tax Act,our view the contention is wholly misconceived. In Ghanshyam Dass case, 1964-4 SCR 436 = (AIR 1964 SC 766 ) the Court was dealing with a proceeding for assessment under the C. P. and Berar Sales Act, 1947 the relevant provisions whereof relating to assessment and re-assessment are similar to, but not identical with, the provisions of the Madhya Bharat Sales Tax Act.is nothing in the judgment in Ghanshyam Dass case. 1964-4 SCR 436 = (AIR l964 SC 766) which supports the view that if the dealer has made a return of his turnover, the assessing authority is incompetent to proceed to assess the turnover by issuing a notice calling upon the dealer to produce evidence to explain or support the return, after the expiry of the period prescribed under Section 11 A of the C. P. and Berar Sales Taxour view the words"Section 10 (3) or under Section 11(2)" in the judgment in Ghanshyam Dass case. 1964-4 SCR 436 = (AIR 1964 SC 766 ) should have been"Section 10 (3) or under Section 11e is nothing in the judgment in Ghanshyam Dass case, 1964-4 SCR 436 = (AIR 1964 SC 766 ) which supports the contention that a proceeding already commenced by the fling of a return by a registered dealer under Section 10 (1) commences afresh when a notice under Section 11 (2) of the C. P. and Berar Sales Tax Act, 1947, is issued.The notice under Section 11 (2) is only a step in the proceeding for assessment and does not disturb the continuity of the proceeding. Therefore when the Sales Tax Officer issued a notice against the respondent under section 8 (2) of the Madhya Bharat Sales Tax Act, 1950, a fresh proceeding to assess turnover which has escaped assessment was not commenced, and Section 10 of the Act was not attracted thereto.
|
Plastiblends India Limited Vs. Addl. Commissioner of Income Tax, Mumbai and Ors | and held that: "In this connection, it is also important to note that section 80A which falls in Chapter VI-A, deductions are allowed only from `gross total income". The object for making such provision is to limit the amount of section 80HHC deduction. It is true that section 80HHC provides for deduction of a percentage of the export profits. The percentage is calculated with reference to the export profits, but the deduction is only from "gross total income" as defined under section 80B(5) of the 1961 Act. Therefore, the very scheme of the 1961 Act is to treat the deductions under Chapter VI-A as deductions only from "gross total income" in order to arrive at the "total income". In other cases falling under section 28 where computation of income falls under the head "Business", allowances are deductible from the income but not from "gross total income". It is, therefore, not possible to accept the contention that section 80HHC is part of the provisions for computation of business income. Section 80 HHC does not have any direct impact on the computation of business income in the manner in which, for example, section 72 affects the computation of business income." 16. The High Court also noted that in Doom Dooma India Ltd., this Court had specifically remarked that Chapter VI-A refers to special deduction. It is a distinct code by itself. It was also held in the said judgment that there was a clear distinction between `deductions/allowances in Section 30 to 43D and `deductions admissible under Chapter VI-A inasmuch as deductions/ allowances provided in Sections 30 to 43D are allowed in determining gross total income and are not chargeable to tax because the same constitute a charge on profit, whereas, deductions under Chapter VI-A are allowed from gross total income chargeable to tax. After discussing the aforesaid three judgments of this Court, the High Court noticed that Section 80-IA is a code by itself and deduction allowable under Section 80-IA is a special deduction which is linked to profits, unlike deductions contained in Chapter IV of the Act which are linked to investment.17. The aforesaid conclusion of the Full Bench is based on the judgments of this Court and there is no reason to disagree with the same, on finding that the judgments of this Court are rightly analysed and ratio thereof is correctly understood and applied. We, thus, entirely agree with the Full Bench judgment of the Bombay High Court in Plastiblends India Limited v. Additional Commissioner of Income-Tax & Ors., (2009) 318 ITR 352 and the following manner in which the position has been summed up by the High Court: "44. To summarise, firstly, the Apex Court decision in the case of Mahendra Mills (supra) cannot be construed to mean that by disclaiming depreciation, the assessee can claim enhanced quantum of deduction under section 80IA. Secondly, the Apex Court in the case of Distributors (Baroda) P. Ltd. (supra) and in the case of Liberty India (supra) has clearly held that the special deduction under Chapter VIA has to be computed on the gross total income determined after deducting all deductions allowable under sections 30 to 43D of the Act and any device adopted to reduce or inflate the profits of eligible business has got to be rejected. Thirdly, this Court in the case of Albright Morarji and Pandit Ltd. (supra), Grasim Industries Ltd. (supra) and Asian Cable Corporation Ltd. (supra) has only followed the decisions of the Apex Court in the case of Distributors Baroda (supra). Thus, on analysis of all the decisions referred hereinabove, it is seen that the quantum of deduction allowable under section 80-IA of the Act has to be determined by computing the gross total income from business, after taking into consideration all the deductions allowable under sections 30 to 43D of the Act. Therefore, whether the assessee has claimed the deductions allowable under sections 30 to 43D of the Act or not, the quantum of deduction under section 80IA has to be determined on the total income computed after deducting all deductions allowable under sections 30 to 43D of the Act." 18. As is clear from the arguments advanced by Mr. Pardiwala, main thrust of his argument was predicated on the judgment of this Court in Mahendra Mills, which according to us, cannot be applied while interpreting Section 80-IA of the Act. It may be stated at the cost of the repetition that judgment in Mahendra Mills was rendered while construing the provisions of Section 32 of the Act, as it existed at the relevant time, whereas we are concerned with the provisions of Chapter VI-A of the Act. Marked distinction between the two Chapters, as already held by this Court in the judgments noted above, is that not only Section 80-IA is a code by itself, it contains the provision for special deduction which is linked to profits. In contrast, Chapter IV of the Act, which allows depreciation under Section 32 of the Act is linked to investment. This Court has also made it clear that Section 80-IA of the Act not only contains substantive but procedural provisions for computation of special deduction. Thus, any device adopted to reduce or inflate the profits of eligible business has to be rejected. The assessees/appellants want 100% deduction, without taking into consideration depreciation which they want to utilise in the subsequent years. This would be anathema to the scheme under Section 80-IA of the Act which is linked to profits and if the contention of the assessees is accepted, it would allow them to inflate the profits linked incentives provided under Section 80-IA of the Act which cannot be permitted.19. Having interpreted the provisions of Section 80-IA in the aforesaid manner, it is not necessary to go into the other question, viz., whether Explanation 5 to Section 32 of the Act is declaratory in nature or it is to be applied prospectively. Judgments cited by both the sides on this aspect, therefore, need not be dealt with. | 0[ds]6. It is not in dispute that all the assessees in these appeals are those industrial undertakings which fulfil the conditions mentioned in Sectionand, therefore, are entitled to deductions as stipulated in(5) of the said Section. It is also not in dispute that all the assessees fall in that category of industrial undertakings which are entitled to 100% deduction of the profits and gains derived from such industrial undertakings for the specified number of years. It is also an admitted fact that for the Assessment Years in question, they were entitled to the aforesaid deduction and their assessments were completed under Sectionof the Act.Submission of Mr. Pardiwala, the learned senior counsel for the assessees, was that deduction is to be allowed from `such profits and gains and, therefore, in the first instance, profits and gains which are earned by the assessees in the relevant Assessment Year are to be computed. For computation of such profits and gains, one has to go back and apply the provisions from Section 28 onwards contained in Part D of Chapter IV dealing with `profits and gains from business or profession. Section 29 of the Act, in this behalf, specifically stipulates that income referred to in Section 28 shall be computed in accordance with provisions contained in Sections 30 to 43D. In this hue, he argued, when it comes to claiming depreciation, Section 32 of the Act gets attracted and interpreting this Section, it has been held in Mahendra Mills case that whether to claim depreciation or not is the option of the assessees and it cannot be thrusted upon the assessees.The High Court also noted that in Doom Dooma India Ltd., this Court had specifically remarked that Chapterrefers to special deduction. It is a distinct code by itself. It was also held in the said judgment that there was a clear distinction between `deductions/allowances in Section 30 to 43D and `deductions admissible under Chapterinasmuch as deductions/ allowances provided in Sections 30 to 43D are allowed in determining gross total income and are not chargeable to tax because the same constitute a charge on profit, whereas, deductions under Chapterare allowed from gross total income chargeable to tax. After discussing the aforesaid three judgments of this Court, the High Court noticed that Sectionis a code by itself and deduction allowable under Sectionis a special deduction which is linked to profits, unlike deductions contained in Chapter IV of the Act which are linked to investment.17. The aforesaid conclusion of the Full Bench is based on the judgments of this Court and there is no reason to disagree with the same, on finding that the judgments of this Court are rightly analysed and ratio thereof is correctly understood and applied. We, thus, entirely agree with the Full Bench judgment of the Bombay High Court in Plastiblends India Limited v. Additional Commissioner of& Ors., (2009) 318 ITR 352 and the following manner in which the position has been summed up by the HighAs is clear from the arguments advanced by Mr. Pardiwala, main thrust of his argument was predicated on the judgment of this Court in Mahendra Mills, which according to us, cannot be applied while interpreting Sectionof the Act.It may be stated at the cost of the repetition that judgment in Mahendra Mills was rendered while construing the provisions of Section 32 of the Act, as it existed at the relevant time, whereas we are concerned with the provisions of Chapterof the Act.Marked distinction between the two Chapters, as already held by this Court in the judgments noted above, is that not only Sectionis a code by itself, it contains the provision for special deduction which is linked to profits. In contrast, Chapter IV of the Act, which allows depreciation under Section 32 of the Act is linked to investment. This Court has also made it clear that Sectionof the Act not only contains substantive but procedural provisions for computation of special deduction. Thus, any device adopted to reduce or inflate the profits of eligible business has to be rejected. The assessees/appellants want 100% deduction, without taking into consideration depreciation which they want to utilise in the subsequent years. This would be anathema to the scheme under Sectionof the Act which is linked to profits and if the contention of the assessees is accepted, it would allow them to inflate the profits linked incentives provided under Sectionof the Act which cannot be permitted.19. Having interpreted the provisions of Sectionin the aforesaid manner, it is not necessary to go into the other question, viz., whether Explanation 5 to Section 32 of the Act is declaratory in nature or it is to be applied prospectively. Judgments cited by both the sides on this aspect, therefore, need not be dealt with. | 0 | 6,296 | 870 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
and held that: "In this connection, it is also important to note that section 80A which falls in Chapter VI-A, deductions are allowed only from `gross total income". The object for making such provision is to limit the amount of section 80HHC deduction. It is true that section 80HHC provides for deduction of a percentage of the export profits. The percentage is calculated with reference to the export profits, but the deduction is only from "gross total income" as defined under section 80B(5) of the 1961 Act. Therefore, the very scheme of the 1961 Act is to treat the deductions under Chapter VI-A as deductions only from "gross total income" in order to arrive at the "total income". In other cases falling under section 28 where computation of income falls under the head "Business", allowances are deductible from the income but not from "gross total income". It is, therefore, not possible to accept the contention that section 80HHC is part of the provisions for computation of business income. Section 80 HHC does not have any direct impact on the computation of business income in the manner in which, for example, section 72 affects the computation of business income." 16. The High Court also noted that in Doom Dooma India Ltd., this Court had specifically remarked that Chapter VI-A refers to special deduction. It is a distinct code by itself. It was also held in the said judgment that there was a clear distinction between `deductions/allowances in Section 30 to 43D and `deductions admissible under Chapter VI-A inasmuch as deductions/ allowances provided in Sections 30 to 43D are allowed in determining gross total income and are not chargeable to tax because the same constitute a charge on profit, whereas, deductions under Chapter VI-A are allowed from gross total income chargeable to tax. After discussing the aforesaid three judgments of this Court, the High Court noticed that Section 80-IA is a code by itself and deduction allowable under Section 80-IA is a special deduction which is linked to profits, unlike deductions contained in Chapter IV of the Act which are linked to investment.17. The aforesaid conclusion of the Full Bench is based on the judgments of this Court and there is no reason to disagree with the same, on finding that the judgments of this Court are rightly analysed and ratio thereof is correctly understood and applied. We, thus, entirely agree with the Full Bench judgment of the Bombay High Court in Plastiblends India Limited v. Additional Commissioner of Income-Tax & Ors., (2009) 318 ITR 352 and the following manner in which the position has been summed up by the High Court: "44. To summarise, firstly, the Apex Court decision in the case of Mahendra Mills (supra) cannot be construed to mean that by disclaiming depreciation, the assessee can claim enhanced quantum of deduction under section 80IA. Secondly, the Apex Court in the case of Distributors (Baroda) P. Ltd. (supra) and in the case of Liberty India (supra) has clearly held that the special deduction under Chapter VIA has to be computed on the gross total income determined after deducting all deductions allowable under sections 30 to 43D of the Act and any device adopted to reduce or inflate the profits of eligible business has got to be rejected. Thirdly, this Court in the case of Albright Morarji and Pandit Ltd. (supra), Grasim Industries Ltd. (supra) and Asian Cable Corporation Ltd. (supra) has only followed the decisions of the Apex Court in the case of Distributors Baroda (supra). Thus, on analysis of all the decisions referred hereinabove, it is seen that the quantum of deduction allowable under section 80-IA of the Act has to be determined by computing the gross total income from business, after taking into consideration all the deductions allowable under sections 30 to 43D of the Act. Therefore, whether the assessee has claimed the deductions allowable under sections 30 to 43D of the Act or not, the quantum of deduction under section 80IA has to be determined on the total income computed after deducting all deductions allowable under sections 30 to 43D of the Act." 18. As is clear from the arguments advanced by Mr. Pardiwala, main thrust of his argument was predicated on the judgment of this Court in Mahendra Mills, which according to us, cannot be applied while interpreting Section 80-IA of the Act. It may be stated at the cost of the repetition that judgment in Mahendra Mills was rendered while construing the provisions of Section 32 of the Act, as it existed at the relevant time, whereas we are concerned with the provisions of Chapter VI-A of the Act. Marked distinction between the two Chapters, as already held by this Court in the judgments noted above, is that not only Section 80-IA is a code by itself, it contains the provision for special deduction which is linked to profits. In contrast, Chapter IV of the Act, which allows depreciation under Section 32 of the Act is linked to investment. This Court has also made it clear that Section 80-IA of the Act not only contains substantive but procedural provisions for computation of special deduction. Thus, any device adopted to reduce or inflate the profits of eligible business has to be rejected. The assessees/appellants want 100% deduction, without taking into consideration depreciation which they want to utilise in the subsequent years. This would be anathema to the scheme under Section 80-IA of the Act which is linked to profits and if the contention of the assessees is accepted, it would allow them to inflate the profits linked incentives provided under Section 80-IA of the Act which cannot be permitted.19. Having interpreted the provisions of Section 80-IA in the aforesaid manner, it is not necessary to go into the other question, viz., whether Explanation 5 to Section 32 of the Act is declaratory in nature or it is to be applied prospectively. Judgments cited by both the sides on this aspect, therefore, need not be dealt with.
### Response:
0
### Explanation:
6. It is not in dispute that all the assessees in these appeals are those industrial undertakings which fulfil the conditions mentioned in Sectionand, therefore, are entitled to deductions as stipulated in(5) of the said Section. It is also not in dispute that all the assessees fall in that category of industrial undertakings which are entitled to 100% deduction of the profits and gains derived from such industrial undertakings for the specified number of years. It is also an admitted fact that for the Assessment Years in question, they were entitled to the aforesaid deduction and their assessments were completed under Sectionof the Act.Submission of Mr. Pardiwala, the learned senior counsel for the assessees, was that deduction is to be allowed from `such profits and gains and, therefore, in the first instance, profits and gains which are earned by the assessees in the relevant Assessment Year are to be computed. For computation of such profits and gains, one has to go back and apply the provisions from Section 28 onwards contained in Part D of Chapter IV dealing with `profits and gains from business or profession. Section 29 of the Act, in this behalf, specifically stipulates that income referred to in Section 28 shall be computed in accordance with provisions contained in Sections 30 to 43D. In this hue, he argued, when it comes to claiming depreciation, Section 32 of the Act gets attracted and interpreting this Section, it has been held in Mahendra Mills case that whether to claim depreciation or not is the option of the assessees and it cannot be thrusted upon the assessees.The High Court also noted that in Doom Dooma India Ltd., this Court had specifically remarked that Chapterrefers to special deduction. It is a distinct code by itself. It was also held in the said judgment that there was a clear distinction between `deductions/allowances in Section 30 to 43D and `deductions admissible under Chapterinasmuch as deductions/ allowances provided in Sections 30 to 43D are allowed in determining gross total income and are not chargeable to tax because the same constitute a charge on profit, whereas, deductions under Chapterare allowed from gross total income chargeable to tax. After discussing the aforesaid three judgments of this Court, the High Court noticed that Sectionis a code by itself and deduction allowable under Sectionis a special deduction which is linked to profits, unlike deductions contained in Chapter IV of the Act which are linked to investment.17. The aforesaid conclusion of the Full Bench is based on the judgments of this Court and there is no reason to disagree with the same, on finding that the judgments of this Court are rightly analysed and ratio thereof is correctly understood and applied. We, thus, entirely agree with the Full Bench judgment of the Bombay High Court in Plastiblends India Limited v. Additional Commissioner of& Ors., (2009) 318 ITR 352 and the following manner in which the position has been summed up by the HighAs is clear from the arguments advanced by Mr. Pardiwala, main thrust of his argument was predicated on the judgment of this Court in Mahendra Mills, which according to us, cannot be applied while interpreting Sectionof the Act.It may be stated at the cost of the repetition that judgment in Mahendra Mills was rendered while construing the provisions of Section 32 of the Act, as it existed at the relevant time, whereas we are concerned with the provisions of Chapterof the Act.Marked distinction between the two Chapters, as already held by this Court in the judgments noted above, is that not only Sectionis a code by itself, it contains the provision for special deduction which is linked to profits. In contrast, Chapter IV of the Act, which allows depreciation under Section 32 of the Act is linked to investment. This Court has also made it clear that Sectionof the Act not only contains substantive but procedural provisions for computation of special deduction. Thus, any device adopted to reduce or inflate the profits of eligible business has to be rejected. The assessees/appellants want 100% deduction, without taking into consideration depreciation which they want to utilise in the subsequent years. This would be anathema to the scheme under Sectionof the Act which is linked to profits and if the contention of the assessees is accepted, it would allow them to inflate the profits linked incentives provided under Sectionof the Act which cannot be permitted.19. Having interpreted the provisions of Sectionin the aforesaid manner, it is not necessary to go into the other question, viz., whether Explanation 5 to Section 32 of the Act is declaratory in nature or it is to be applied prospectively. Judgments cited by both the sides on this aspect, therefore, need not be dealt with.
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C.C.E.,VADODARA Vs. GUJARAT NARMADA VALLEY FER. CO. LTD | a reflection of this larger principle which is contained in Rule 6. When Rule 6(1) says that the CENVAT Credit shall not be allowed on such quantity of inputs which is used in the manufacture of exempted goods, it relies upon the definition of ?inputs? contained in these Rules which certainly include LSHS and steam and electricity that are produced in the manufacturing process utilizing LSHS. The exception that is contained in sub-rule (2) refers to all inputs except inputs intended to be used as fuel which then results in the manufacture of final products which are both chargeable to duty as well as exempted goods. What is clear is that the exception to sub-rule (1) which is contained in sub-rule (2) itself contains an exception, namely, inputs intended to be used as fuel. This being the case, the moment it is found that inputs are intended to be used as fuel, such inputs go outside the ken of sub-rule (2) of Rule 6. When this happens, the exception contained in sub-rule (2) does not come into effect at all as a result of which sub-rule (1) must be applied on its own terms. 10. We have now to see the judgment of this Court in Commissioner of Central Excise, Vadodara vs. Gujarat State Fertilizers and Chemicals Ltd., (2008) 15 SCC 46. This judgment has only upheld two Tribunal judgments, one contained in Ballarpur Industries Ltd. (supra) and the other contained in Raymond Ltd. (supra). 11. When we come to the judgment in Ballarpur Industries Ltd. (supra), the Tribunal was concerned with the interpretation of Rule 57A-D of the Central Excise Rules as they stood prior to 16.03.1995. The bone of contention in this case was that electricity not being excisable goods at all cannot be considered to be an intermediate product for the purpose of exempting from duty final products in which electricity is an intermediate product. The Tribunal held that fuel oils for generation of electricity which is used for manufacture of final products by the assessee is eligible to MODVAT credit in terms of Rule 57A. It can thus be seen that the issue in Ballarpur Industries Ltd. (supra) was different from the issue in the present case, as was Rule 57A-D of the MODVAT Rules being different from Rule 6 of the CENVAT Credit Rules. Equally, the judgment in Raymond Ltd. (supra) concerned itself with Rule 57A, C and D in which it construed the meaning of the expression ?for any other purpose? contained in Rule 57A in para 12. The ratio of this judgment is also therefore far removed from the facts of the present case as the present case does not deal with the expression ?for any other purpose?. 12. We now come to the judgment of this Court in Vikram Cement vs. Commissioner of Central Excise, Indore, (2006) 2 SCC 351 , which was strongly relied upon by Mr. Dushyant Dave, learned Senior Advocate, in particular, para 24 of the judgment which reads as follows: ?24. The schemes of MODVAT and CENVAT credit are not therefore different and we are unable to agree with the conclusion of the Court in J.K. Udaipur Udyog, (2004) 7 SCC 344.? Considering that the CENVAT Credit Rules are the successor rules to the MODVAT Rules, as a general statement, the scheme contained in both the MODVAT as well as the CENVAT scheme may well be similar. However, that does not answer the precise question before us. 13. Mr. Dave relied upon Solaris Chemtech Ltd., (supra) in which Rule 57A of the MODVAT Rules came up for construction. This judgment again went into what was the correct interpretation of the expression ?in or in relation to the manufacturer of final products? and the definition of ?inputs? for the purpose of Rule 57A. Having gone into these two aspects of Rule 57A, para 15 then lays down the law as follows:- ?15. In the present case, LSHS is used to generate electricity which is captively consumed. Without continuous supply of such electricity generated in the plant it is not possible to manufacture cement, caustic soda, etc. Without such supply the process of electrolysis was not possible. Therefore, keeping in mind the expression ? used in relation to the manufacture? in Rule 57-A we are of the view that the assessees were entitled to MODVAT credit on LSHS. In our opinion, the present case falls in Clause (c), therefore, the assessees were entitled to MODVAT credit under Explanation clause (c) even before 16-3-1995. Inputs used for generation of electricity will qualify for MODVAT credit only if they are used in or in relation to the manufacture of the final product, such as cement, caustic soda, etc. Therefore, it is not correct to state that inputs used as fuel for generation of electricity captively consumed will not be covered as inputs under Rule 57-A.? 14. This judgment again does not take the respondent?s case any further. As we have seen, the issue in this case was entirely different, electricity not being an excisable item which is captively consumed and used to manufacture cement/caustic soda was held nonetheless to be used in relation to the ?manufacturer? of the final product. The issue in the present case is whether, given the scheme of Rule 6 of the CENVAT Credit Rules, fuel used as inputs which are covered by Rule 6(1) can at all be said to be within the exception contained in Rule 6(2). 15. This being the case, we are of the view that there is no conflict between the earlier judgment of Commissioner of Central Excise, Vadodara vs. Gujarat State Fertilizers and Chemicals Ltd., (2008) 15 SCC 46 and (2009) 9 SCC 101 [CCE vs. Gujarat Narmada Fertilizers Co. Ltd., (supra). Also, we are of the view that even after independently applying our minds to Rule 6 as it stood, the interpretation of this Court contained in (2009) 9 SCC 101 [CCE v. Gujarat Narmada Fertilizers Co. Ltd., (supra) is correct. | 1[ds]9. Thus, the finding of this Court restates an important principle under the CENVAT Credit Rules, and which is inbuilt in the structure of the CENVAT Credit scheme, which is that Cenvat credit for duty paid on inputs used in the manufacture of exempted final products cannot be allowed. It is only a reflection of this larger principle which is contained in Rule 6. When Rule 6(1) says that the CENVAT Credit shall not be allowed on such quantity of inputs which is used in the manufacture of exempted goods, it relies upon the definition of ?inputs? contained in these Rules which certainly include LSHS and steam and electricity that are produced in the manufacturing process utilizing LSHS. The exception that is contained in sub-rule (2) refers to all inputs except inputs intended to be used as fuel which then results in the manufacture of final products which are both chargeable to duty as well as exempted goods. What is clear is that the exception to sub-rule (1) which is contained in sub-rule (2) itself contains an exception, namely, inputs intended to be used as fuel. This being the case, the moment it is found that inputs are intended to be used as fuel, such inputs go outside the ken of sub-rule (2) of Rule 6. When this happens, the exception contained in sub-rule (2) does not come into effect at all as a result of which sub-rule (1) must be applied on its own terms.When we come to the judgment in Ballarpur Industries Ltd. (supra), the Tribunal was concerned with the interpretation of Rule 57A-D of the Central Excise Rules as they stood prior to 16.03.1995. The bone of contention in this case was that electricity not being excisable goods at all cannot be considered to be an intermediate product for the purpose of exempting from duty final products in which electricity is an intermediate product. The Tribunal held that fuel oils for generation of electricity which is used for manufacture of final products by the assessee is eligible to MODVAT credit in terms of Rule 57A. It can thus be seen that the issue in Ballarpur Industries Ltd. (supra) was different from the issue in the present case, as was Rule 57A-D of the MODVAT Rules being different from Rule 6 of the CENVAT Credit Rules. Equally, the judgment in Raymond Ltd. (supra) concerned itself with Rule 57A, C and D in which it construed the meaning of the expression ?for any other purpose? contained in Rule 57A in para 12. The ratio of this judgment is also therefore far removed from the facts of the present case as the present case does not deal with the expression ?for any other purpose?.We now come to the judgment of this Court in Vikram Cement vs. Commissioner of Central Excise, Indore, (2006) 2 SCC 351 , which was strongly relied upon by Mr. Dushyant Dave, learned Senior Advocate, in particular, para 24 of the judgment which reads asThe schemes of MODVAT and CENVAT credit are not therefore different and we are unable to agree with the conclusion of the Court in J.K. Udaipur Udyog, (2004) 7 SCCthat the CENVAT Credit Rules are the successor rules to the MODVAT Rules, as a general statement, the scheme contained in both the MODVAT as well as the CENVAT scheme may well be similar. However, that does not answer the precise question before us.Mr. Dave relied upon Solaris Chemtech Ltd., (supra) in which Rule 57A of the MODVAT Rules came up for construction. This judgment again went into what was the correct interpretation of the expression?in or in relation to the manufacturer of final products?and the definition of ?inputs? for the purpose of Rule 57A.This judgment again does not take the respondent?s case any further. As we have seen, the issue in this case was entirely different, electricity not being an excisable item which is captively consumed and used to manufacture cement/caustic soda was held nonetheless to be used in relation to the ?manufacturer? of the final product. The issue in the present case is whether, given the scheme of Rule 6 of the CENVAT Credit Rules, fuel used as inputs which are covered by Rule 6(1) can at all be said to be within the exception contained in Rule 6(2).This being the case, we are of the view that there is no conflict between the earlier judgment of Commissioner of Central Excise, Vadodara vs. Gujarat State Fertilizers and Chemicals Ltd., (2008) 15 SCC 46 and (2009) 9 SCC 101 [CCE vs. Gujarat Narmada Fertilizers Co. Ltd., (supra). Also, we are of the view that even after independently applying our minds to Rule 6 as it stood, the interpretation of this Court contained in (2009) 9 SCC 101 [CCE v. Gujarat Narmada Fertilizers Co. Ltd., (supra) is correct. | 1 | 4,200 | 926 | ### 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:
a reflection of this larger principle which is contained in Rule 6. When Rule 6(1) says that the CENVAT Credit shall not be allowed on such quantity of inputs which is used in the manufacture of exempted goods, it relies upon the definition of ?inputs? contained in these Rules which certainly include LSHS and steam and electricity that are produced in the manufacturing process utilizing LSHS. The exception that is contained in sub-rule (2) refers to all inputs except inputs intended to be used as fuel which then results in the manufacture of final products which are both chargeable to duty as well as exempted goods. What is clear is that the exception to sub-rule (1) which is contained in sub-rule (2) itself contains an exception, namely, inputs intended to be used as fuel. This being the case, the moment it is found that inputs are intended to be used as fuel, such inputs go outside the ken of sub-rule (2) of Rule 6. When this happens, the exception contained in sub-rule (2) does not come into effect at all as a result of which sub-rule (1) must be applied on its own terms. 10. We have now to see the judgment of this Court in Commissioner of Central Excise, Vadodara vs. Gujarat State Fertilizers and Chemicals Ltd., (2008) 15 SCC 46. This judgment has only upheld two Tribunal judgments, one contained in Ballarpur Industries Ltd. (supra) and the other contained in Raymond Ltd. (supra). 11. When we come to the judgment in Ballarpur Industries Ltd. (supra), the Tribunal was concerned with the interpretation of Rule 57A-D of the Central Excise Rules as they stood prior to 16.03.1995. The bone of contention in this case was that electricity not being excisable goods at all cannot be considered to be an intermediate product for the purpose of exempting from duty final products in which electricity is an intermediate product. The Tribunal held that fuel oils for generation of electricity which is used for manufacture of final products by the assessee is eligible to MODVAT credit in terms of Rule 57A. It can thus be seen that the issue in Ballarpur Industries Ltd. (supra) was different from the issue in the present case, as was Rule 57A-D of the MODVAT Rules being different from Rule 6 of the CENVAT Credit Rules. Equally, the judgment in Raymond Ltd. (supra) concerned itself with Rule 57A, C and D in which it construed the meaning of the expression ?for any other purpose? contained in Rule 57A in para 12. The ratio of this judgment is also therefore far removed from the facts of the present case as the present case does not deal with the expression ?for any other purpose?. 12. We now come to the judgment of this Court in Vikram Cement vs. Commissioner of Central Excise, Indore, (2006) 2 SCC 351 , which was strongly relied upon by Mr. Dushyant Dave, learned Senior Advocate, in particular, para 24 of the judgment which reads as follows: ?24. The schemes of MODVAT and CENVAT credit are not therefore different and we are unable to agree with the conclusion of the Court in J.K. Udaipur Udyog, (2004) 7 SCC 344.? Considering that the CENVAT Credit Rules are the successor rules to the MODVAT Rules, as a general statement, the scheme contained in both the MODVAT as well as the CENVAT scheme may well be similar. However, that does not answer the precise question before us. 13. Mr. Dave relied upon Solaris Chemtech Ltd., (supra) in which Rule 57A of the MODVAT Rules came up for construction. This judgment again went into what was the correct interpretation of the expression ?in or in relation to the manufacturer of final products? and the definition of ?inputs? for the purpose of Rule 57A. Having gone into these two aspects of Rule 57A, para 15 then lays down the law as follows:- ?15. In the present case, LSHS is used to generate electricity which is captively consumed. Without continuous supply of such electricity generated in the plant it is not possible to manufacture cement, caustic soda, etc. Without such supply the process of electrolysis was not possible. Therefore, keeping in mind the expression ? used in relation to the manufacture? in Rule 57-A we are of the view that the assessees were entitled to MODVAT credit on LSHS. In our opinion, the present case falls in Clause (c), therefore, the assessees were entitled to MODVAT credit under Explanation clause (c) even before 16-3-1995. Inputs used for generation of electricity will qualify for MODVAT credit only if they are used in or in relation to the manufacture of the final product, such as cement, caustic soda, etc. Therefore, it is not correct to state that inputs used as fuel for generation of electricity captively consumed will not be covered as inputs under Rule 57-A.? 14. This judgment again does not take the respondent?s case any further. As we have seen, the issue in this case was entirely different, electricity not being an excisable item which is captively consumed and used to manufacture cement/caustic soda was held nonetheless to be used in relation to the ?manufacturer? of the final product. The issue in the present case is whether, given the scheme of Rule 6 of the CENVAT Credit Rules, fuel used as inputs which are covered by Rule 6(1) can at all be said to be within the exception contained in Rule 6(2). 15. This being the case, we are of the view that there is no conflict between the earlier judgment of Commissioner of Central Excise, Vadodara vs. Gujarat State Fertilizers and Chemicals Ltd., (2008) 15 SCC 46 and (2009) 9 SCC 101 [CCE vs. Gujarat Narmada Fertilizers Co. Ltd., (supra). Also, we are of the view that even after independently applying our minds to Rule 6 as it stood, the interpretation of this Court contained in (2009) 9 SCC 101 [CCE v. Gujarat Narmada Fertilizers Co. Ltd., (supra) is correct.
### Response:
1
### Explanation:
9. Thus, the finding of this Court restates an important principle under the CENVAT Credit Rules, and which is inbuilt in the structure of the CENVAT Credit scheme, which is that Cenvat credit for duty paid on inputs used in the manufacture of exempted final products cannot be allowed. It is only a reflection of this larger principle which is contained in Rule 6. When Rule 6(1) says that the CENVAT Credit shall not be allowed on such quantity of inputs which is used in the manufacture of exempted goods, it relies upon the definition of ?inputs? contained in these Rules which certainly include LSHS and steam and electricity that are produced in the manufacturing process utilizing LSHS. The exception that is contained in sub-rule (2) refers to all inputs except inputs intended to be used as fuel which then results in the manufacture of final products which are both chargeable to duty as well as exempted goods. What is clear is that the exception to sub-rule (1) which is contained in sub-rule (2) itself contains an exception, namely, inputs intended to be used as fuel. This being the case, the moment it is found that inputs are intended to be used as fuel, such inputs go outside the ken of sub-rule (2) of Rule 6. When this happens, the exception contained in sub-rule (2) does not come into effect at all as a result of which sub-rule (1) must be applied on its own terms.When we come to the judgment in Ballarpur Industries Ltd. (supra), the Tribunal was concerned with the interpretation of Rule 57A-D of the Central Excise Rules as they stood prior to 16.03.1995. The bone of contention in this case was that electricity not being excisable goods at all cannot be considered to be an intermediate product for the purpose of exempting from duty final products in which electricity is an intermediate product. The Tribunal held that fuel oils for generation of electricity which is used for manufacture of final products by the assessee is eligible to MODVAT credit in terms of Rule 57A. It can thus be seen that the issue in Ballarpur Industries Ltd. (supra) was different from the issue in the present case, as was Rule 57A-D of the MODVAT Rules being different from Rule 6 of the CENVAT Credit Rules. Equally, the judgment in Raymond Ltd. (supra) concerned itself with Rule 57A, C and D in which it construed the meaning of the expression ?for any other purpose? contained in Rule 57A in para 12. The ratio of this judgment is also therefore far removed from the facts of the present case as the present case does not deal with the expression ?for any other purpose?.We now come to the judgment of this Court in Vikram Cement vs. Commissioner of Central Excise, Indore, (2006) 2 SCC 351 , which was strongly relied upon by Mr. Dushyant Dave, learned Senior Advocate, in particular, para 24 of the judgment which reads asThe schemes of MODVAT and CENVAT credit are not therefore different and we are unable to agree with the conclusion of the Court in J.K. Udaipur Udyog, (2004) 7 SCCthat the CENVAT Credit Rules are the successor rules to the MODVAT Rules, as a general statement, the scheme contained in both the MODVAT as well as the CENVAT scheme may well be similar. However, that does not answer the precise question before us.Mr. Dave relied upon Solaris Chemtech Ltd., (supra) in which Rule 57A of the MODVAT Rules came up for construction. This judgment again went into what was the correct interpretation of the expression?in or in relation to the manufacturer of final products?and the definition of ?inputs? for the purpose of Rule 57A.This judgment again does not take the respondent?s case any further. As we have seen, the issue in this case was entirely different, electricity not being an excisable item which is captively consumed and used to manufacture cement/caustic soda was held nonetheless to be used in relation to the ?manufacturer? of the final product. The issue in the present case is whether, given the scheme of Rule 6 of the CENVAT Credit Rules, fuel used as inputs which are covered by Rule 6(1) can at all be said to be within the exception contained in Rule 6(2).This being the case, we are of the view that there is no conflict between the earlier judgment of Commissioner of Central Excise, Vadodara vs. Gujarat State Fertilizers and Chemicals Ltd., (2008) 15 SCC 46 and (2009) 9 SCC 101 [CCE vs. Gujarat Narmada Fertilizers Co. Ltd., (supra). Also, we are of the view that even after independently applying our minds to Rule 6 as it stood, the interpretation of this Court contained in (2009) 9 SCC 101 [CCE v. Gujarat Narmada Fertilizers Co. Ltd., (supra) is correct.
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M/S.Corporate Couriers Limited & Others Vs. M/S.Wall Street Finance Limited | I.L.R. 2010 Kar.215. In that case what the learned single Judge of the Karnatka High Court amongst others was considering was the effect of a suit filed and which was pending and independently maintenance of the Company Petition. The learned Judge held that pendency of a suit is not a bar to the maintainability of a winding up petition. However, the decision in the suit is a matter to be taken into consideration before an order of winding can be made in the Company Petition since filing of the suit for recovery of money due from the company in which adjudication takes place after recording of evidence would also be the very basis of filing of the Petition seeking winding upon on account of inability to pay debt of a just and reason. In our opinion, this judgment would not be applicable as in the instant case by the consent terms the company itself admitted the liability to the petitioner, the appellant herein. The learned Judge also noted that the petition for winding up with a view to enforcing payment of disputed debt is an abuse of the process of the Court and it cannot be gainsaid that an order admitting a winding up petition and resultant order for inviting claims from the respective parties by public notice, is in many cases from commercial point of view, the business point of view, from the marketability point of view and also taking into consideration the interest of the work force not less injurious than an order of winding up. In the instant case, however, we are clearly of the opinion that the principle would not apply as the company petition had already been admitted. 9. Strong reliance was placed on the judgment of a learned single Judge of the Gujarat High Court in the case of Gujarat State Financial Services Ltd. vs. Amar Polyester Ltd., 1998 (1) G.L.R. 734. In that case also consent terms were filed and there was a breach. Amongst others the question before the Court, was whether in a case where consent terms were filed and there was a breach of payment of instalment and considering the clause for revival, whether the Company Petition could be restored. In that case the company was also before the B.I.F.R. The learned Judge held that when a creditor enters into an agreement with the debtor and accepts to receive its debt in installments, then that conduct of creditor itself shows that the claim of the creditor that the debtor is not in a position to satisfy its debts is not correct and that the conduct of the debtor may amount to fresh cause of action. The learned Judge further observed that the foundation for the proceedings under the Companies Act is the inability of debtor to pay its debt. Therefore, when the creditor by his own conduct accepts the position that the debtor will be in a position to satisfy its debt by entering into consent terms by his own conduct, shows that no cause of action survives. The moment the creditor enters into consent terms there is nothing to proceed within the Company Petition. In the circumstances the Court held that merely because there is a term in the consent terms giving liberty to revive the proceedings it will not change the law and will not give right to the creditor to ask the Court to revive the proceeding. It will not be possible for us to accept the proposition of law as set out by the learned Judge of the Gujarat High Court. No doubt the consent terms are an agreement between the parties on which is superimposed the seal of the Court and to that extent it is not a judgment of the Court. The Agreement, however, is not one sided. Both parties mutually agreed that the petition will not be proceeded with as the company is given an opportunity to pay its debts. The Creditor accepts the offer of the company on the condition that if the installments are not paid within time the proceedings would continue. In other words both parties are aware that the proceedings are not closed and that the company petition would revive in the event there is a default in terms of the consent terms. In our opinion, the company cannot take advantage of its own wrong, more so as in this case where the creditor went out of its way even to reduce its claim. A cheque which was issued by the company was dishonoured, thus clearly indicating the companys inability to pay. In our opinion, in such a case, there is no change of cause of action. The cause of action is the cause based upon which the Company Petition was filed and the company petition admitted. Only further proceedings were not taken in view of the consent terms. Once a company petition is admitted and consent terms were filed, on failure to comply with the consent terms the company petition has to be proceeded with. 10. Reliance is also placed on the judgment of the Full Bench of the Allahabad High Court in the case of Mohiuddin vs. Mt. Kashmiro Bibi, AIR 1933 Allahabad 252. The learned Full Bench was considering an issue arising in a proceeding in execution and the effect of an agreement which contains a penal clause and whether that can be gone into by the Executing Court. The learned Counsel sought to contend that the clause of default is penal clause and in these circumstances that clause shall not be given effect to. In our opinion, it is not possible to apply that proposition to the Company Petition. The clause for revival of the petition cannot be said to be penal clause. In that context the judgment in Mohiuddin (supra) is clearly distinguishable. 11. On the facts and circumstances of the case, we are clearly of the opinion that the learned Judge was within jurisdiction in restoring the company petition and appointing Official Liquidator. | 0[ds]In that case what the learned single Judge of the Karnatka High Court amongst others was considering was the effect of a suit filed and which was pending and independently maintenance of the Company Petition. The learned Judge held that pendency of a suit is not a bar to the maintainability of a winding up petition. However, the decision in the suit is a matter to be taken into consideration before an order of winding can be made in the Company Petition since filing of the suit for recovery of money due from the company in which adjudication takes place after recording of evidence would also be the very basis of filing of the Petition seeking winding upon on account of inability to pay debt of a just and reason. In our opinion, this judgment would not be applicable as in the instant case by the consent terms the company itself admitted the liability to the petitioner, the appellant hereinThe learned Judge also noted that the petition for winding up with a view to enforcing payment of disputed debt is an abuse of the process of the Court and it cannot be gainsaid that an order admitting a winding up petition and resultant order for inviting claims from the respective parties by public notice, is in many cases from commercial point of view, the business point of view, from the marketability point of view and also taking into consideration the interest of the work force not less injurious than an order of winding up. In the instant case, however, we are clearly of the opinion that the principle would not apply as the company petition had already been admittedIn that case also consent terms were filed and there was a breach. Amongst others the question before the Court, was whether in a case where consent terms were filed and there was a breach of payment of instalment and considering the clause for revival, whether the Company Petition could be restored. In that case the company was also before the B.I.F.RThe learned Judge held that when a creditor enters into an agreement with the debtor and accepts to receive its debt in installments, then that conduct of creditor itself shows that the claim of the creditor that the debtor is not in a position to satisfy its debts is not correct and that the conduct of the debtor may amount to fresh cause of action. The learned Judge further observed that the foundation for the proceedings under the Companies Act is the inability of debtor to pay its debt. Therefore, when the creditor by his own conduct accepts the position that the debtor will be in a position to satisfy its debt by entering into consent terms by his own conduct, shows that no cause of action survives. The moment the creditor enters into consent terms there is nothing to proceed within the Company Petition. In the circumstances the Court held that merely because there is a term in the consent terms giving liberty to revive the proceedings it will not change the law and will not give right to the creditor to ask the Court to revive the proceedingIt will not be possible for us to accept the proposition of law as set out by the learned Judge of the Gujarat High Court. No doubt the consent terms are an agreement between the parties on which is superimposed the seal of the Court and to that extent it is not a judgment of the Court. The Agreement, however, is not one sided. Both parties mutually agreed that the petition will not be proceeded with as the company is given an opportunity to pay its debts. The Creditor accepts the offer of the company on the condition that if the installments are not paid within time the proceedings would continue. In other words both parties are aware that the proceedings are not closed and that the company petition would revive in the event there is a default in terms of the consent terms. In our opinion, the company cannot take advantage of its own wrong, more so as in this case where the creditor went out of its way even to reduce its claim. A cheque which was issued by the company was dishonoured, thus clearly indicating the companys inability to pay. In our opinion, in such a case, there is no change of cause of action. The cause of action is the cause based upon which the Company Petition was filed and the company petition admitted. Only further proceedings were not taken in view of the consent terms. Once a company petition is admitted and consent terms were filed, on failure to comply with the consent terms the company petition has to be proceeded withThe clause for revival of the petition cannot be said to be penal clause. In that context the judgment in Mohiuddin (supra) is clearly distinguishable11. On the facts and circumstances of the case, we are clearly of the opinion that the learned Judge was within jurisdiction in restoring the company petition and appointing Official Liquidator. | 0 | 1,966 | 904 | ### 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:
I.L.R. 2010 Kar.215. In that case what the learned single Judge of the Karnatka High Court amongst others was considering was the effect of a suit filed and which was pending and independently maintenance of the Company Petition. The learned Judge held that pendency of a suit is not a bar to the maintainability of a winding up petition. However, the decision in the suit is a matter to be taken into consideration before an order of winding can be made in the Company Petition since filing of the suit for recovery of money due from the company in which adjudication takes place after recording of evidence would also be the very basis of filing of the Petition seeking winding upon on account of inability to pay debt of a just and reason. In our opinion, this judgment would not be applicable as in the instant case by the consent terms the company itself admitted the liability to the petitioner, the appellant herein. The learned Judge also noted that the petition for winding up with a view to enforcing payment of disputed debt is an abuse of the process of the Court and it cannot be gainsaid that an order admitting a winding up petition and resultant order for inviting claims from the respective parties by public notice, is in many cases from commercial point of view, the business point of view, from the marketability point of view and also taking into consideration the interest of the work force not less injurious than an order of winding up. In the instant case, however, we are clearly of the opinion that the principle would not apply as the company petition had already been admitted. 9. Strong reliance was placed on the judgment of a learned single Judge of the Gujarat High Court in the case of Gujarat State Financial Services Ltd. vs. Amar Polyester Ltd., 1998 (1) G.L.R. 734. In that case also consent terms were filed and there was a breach. Amongst others the question before the Court, was whether in a case where consent terms were filed and there was a breach of payment of instalment and considering the clause for revival, whether the Company Petition could be restored. In that case the company was also before the B.I.F.R. The learned Judge held that when a creditor enters into an agreement with the debtor and accepts to receive its debt in installments, then that conduct of creditor itself shows that the claim of the creditor that the debtor is not in a position to satisfy its debts is not correct and that the conduct of the debtor may amount to fresh cause of action. The learned Judge further observed that the foundation for the proceedings under the Companies Act is the inability of debtor to pay its debt. Therefore, when the creditor by his own conduct accepts the position that the debtor will be in a position to satisfy its debt by entering into consent terms by his own conduct, shows that no cause of action survives. The moment the creditor enters into consent terms there is nothing to proceed within the Company Petition. In the circumstances the Court held that merely because there is a term in the consent terms giving liberty to revive the proceedings it will not change the law and will not give right to the creditor to ask the Court to revive the proceeding. It will not be possible for us to accept the proposition of law as set out by the learned Judge of the Gujarat High Court. No doubt the consent terms are an agreement between the parties on which is superimposed the seal of the Court and to that extent it is not a judgment of the Court. The Agreement, however, is not one sided. Both parties mutually agreed that the petition will not be proceeded with as the company is given an opportunity to pay its debts. The Creditor accepts the offer of the company on the condition that if the installments are not paid within time the proceedings would continue. In other words both parties are aware that the proceedings are not closed and that the company petition would revive in the event there is a default in terms of the consent terms. In our opinion, the company cannot take advantage of its own wrong, more so as in this case where the creditor went out of its way even to reduce its claim. A cheque which was issued by the company was dishonoured, thus clearly indicating the companys inability to pay. In our opinion, in such a case, there is no change of cause of action. The cause of action is the cause based upon which the Company Petition was filed and the company petition admitted. Only further proceedings were not taken in view of the consent terms. Once a company petition is admitted and consent terms were filed, on failure to comply with the consent terms the company petition has to be proceeded with. 10. Reliance is also placed on the judgment of the Full Bench of the Allahabad High Court in the case of Mohiuddin vs. Mt. Kashmiro Bibi, AIR 1933 Allahabad 252. The learned Full Bench was considering an issue arising in a proceeding in execution and the effect of an agreement which contains a penal clause and whether that can be gone into by the Executing Court. The learned Counsel sought to contend that the clause of default is penal clause and in these circumstances that clause shall not be given effect to. In our opinion, it is not possible to apply that proposition to the Company Petition. The clause for revival of the petition cannot be said to be penal clause. In that context the judgment in Mohiuddin (supra) is clearly distinguishable. 11. On the facts and circumstances of the case, we are clearly of the opinion that the learned Judge was within jurisdiction in restoring the company petition and appointing Official Liquidator.
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0
### Explanation:
In that case what the learned single Judge of the Karnatka High Court amongst others was considering was the effect of a suit filed and which was pending and independently maintenance of the Company Petition. The learned Judge held that pendency of a suit is not a bar to the maintainability of a winding up petition. However, the decision in the suit is a matter to be taken into consideration before an order of winding can be made in the Company Petition since filing of the suit for recovery of money due from the company in which adjudication takes place after recording of evidence would also be the very basis of filing of the Petition seeking winding upon on account of inability to pay debt of a just and reason. In our opinion, this judgment would not be applicable as in the instant case by the consent terms the company itself admitted the liability to the petitioner, the appellant hereinThe learned Judge also noted that the petition for winding up with a view to enforcing payment of disputed debt is an abuse of the process of the Court and it cannot be gainsaid that an order admitting a winding up petition and resultant order for inviting claims from the respective parties by public notice, is in many cases from commercial point of view, the business point of view, from the marketability point of view and also taking into consideration the interest of the work force not less injurious than an order of winding up. In the instant case, however, we are clearly of the opinion that the principle would not apply as the company petition had already been admittedIn that case also consent terms were filed and there was a breach. Amongst others the question before the Court, was whether in a case where consent terms were filed and there was a breach of payment of instalment and considering the clause for revival, whether the Company Petition could be restored. In that case the company was also before the B.I.F.RThe learned Judge held that when a creditor enters into an agreement with the debtor and accepts to receive its debt in installments, then that conduct of creditor itself shows that the claim of the creditor that the debtor is not in a position to satisfy its debts is not correct and that the conduct of the debtor may amount to fresh cause of action. The learned Judge further observed that the foundation for the proceedings under the Companies Act is the inability of debtor to pay its debt. Therefore, when the creditor by his own conduct accepts the position that the debtor will be in a position to satisfy its debt by entering into consent terms by his own conduct, shows that no cause of action survives. The moment the creditor enters into consent terms there is nothing to proceed within the Company Petition. In the circumstances the Court held that merely because there is a term in the consent terms giving liberty to revive the proceedings it will not change the law and will not give right to the creditor to ask the Court to revive the proceedingIt will not be possible for us to accept the proposition of law as set out by the learned Judge of the Gujarat High Court. No doubt the consent terms are an agreement between the parties on which is superimposed the seal of the Court and to that extent it is not a judgment of the Court. The Agreement, however, is not one sided. Both parties mutually agreed that the petition will not be proceeded with as the company is given an opportunity to pay its debts. The Creditor accepts the offer of the company on the condition that if the installments are not paid within time the proceedings would continue. In other words both parties are aware that the proceedings are not closed and that the company petition would revive in the event there is a default in terms of the consent terms. In our opinion, the company cannot take advantage of its own wrong, more so as in this case where the creditor went out of its way even to reduce its claim. A cheque which was issued by the company was dishonoured, thus clearly indicating the companys inability to pay. In our opinion, in such a case, there is no change of cause of action. The cause of action is the cause based upon which the Company Petition was filed and the company petition admitted. Only further proceedings were not taken in view of the consent terms. Once a company petition is admitted and consent terms were filed, on failure to comply with the consent terms the company petition has to be proceeded withThe clause for revival of the petition cannot be said to be penal clause. In that context the judgment in Mohiuddin (supra) is clearly distinguishable11. On the facts and circumstances of the case, we are clearly of the opinion that the learned Judge was within jurisdiction in restoring the company petition and appointing Official Liquidator.
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Commissioner of Income Tax Vs. Bombay Burmah Trading Corporation | made from India. That view was upheld by the Appellate Assistant Commissioner and the Income-tax Appellate Tribunal. Among others, the following two questions in Income Tax Reference No. 242 1976 and question No. 2 in Income Tax Reference No. 10 of 1987 were referred to the High Court of Judicature at Bombay by the Income-tax Appellate. Tribunal under Section 256(1) of the Act : "(1) Whether on the facts and in the circumstances of the case, the provisions of Section 40(c)(iii) 40(a)(v) applied in the case of the employees of the Assessee in its overseas branches ?(2) Whether on the facts and in the circumstances of the case, the assessee is entitled to weighted deduction under SEction 35-B in respect of the expenditure of Rs. 1,95,935/- incurred on export of tea from East Africa to the United Kingdom ?" 3. The first question was answered in the negative i.e in favour of the assessee and against the Revenue following the judgment in the case of the respondent-assessee for the earlier assessment years in Bombay Burmah Trading Corporation Ltd. v. Commissioner of Income Tax, Bombay City-IV, 1984(145) ITR 793. It is conceded by the learned counsel for the parties that t his question is covered against the Revenue by the judgment of this Court in Commissioner of Income Tax v. Continental Construction Ltd., 1998(230) ITR 485 affirming the judgment in Continental Construction Ltd. v. Commissioner of Income Tax, 1990(185) ITR 178. 4. Adverting to the second question, the High Court answered it in the affirmative i.e. in favour of the assessee and against the Revenue. It will be apt to refer to Section 35-B of the Act, which is the subject-matter of debate in all the five appeals. "35-B. Export Markets developments allowance - (1)(a). Where an assessee, being a domestic company or a person (other than a company) who is resident in India, has incurred after the 29th day of February, 1968, but before the 1st day of March, 1983, whether directly or in association with any other person, any expenditure (not being in the nature of capital expenditure or personal expenses of the assessee) referred to in clause (b), he shall, subject to the provisions of this section, be allowed a deduction of a sum equal to one and one-third times the amount of such expenditure incurred during the previous year;(b) The expenditure referred to in clause (a) is that incurred wholly and exclusively on -(i) advertisement or publicity outside India in respect of the goods, services or facilities which the assessee deals in or provides in the course of his business.....;**** ***** *****(viii) performance of services outside India in connection with, or incidental to, the execution of any contract for the supply outside India of such goods, services or facilities." On a plain reading of the provision of sub-section (1), extracted above, it is clear that to claim the benefit of this section the following conditions have to be satisfied : (i) the assessee must be a domestic company which is resident in India;(ii) it must have incurred expenditure after February 29, 1968 but before March 1, 1983;(iii) such expenditure should not be in the nature of capital expenditure or personal expenses of the assessee;(iv) the expenditure might have been incurred either directly or in association with any other person; and(v) the nature of the expenditure must answer the description referred to in any one of the sub-clauses of clause (b). On these requirements being satisfied the assessee-company becomes entitled to the weighted deduction under Section 35-B. It is not necessary that the export should be directly ex-India (from India). 5. The Tribunals reading of the Section that the export should be ex-India is not supported by the language of the provision or any authority. The High Court has, therefore, rightly concluded that to avail the benefit of weighted deduction the provision does not require that the export should be ex-India. It must be observed in fairness to Mr. M.L. Verma, learned senior counsel appearing for the Revenue, that he does not seriously dispute this proposition. Once this position is accepted, the order under challenge has to be sustained. 6. However, what Mr. Verma contends is that the respondent claims the expenditure under sub-clause (viii) for which there is no factual finding by the Tribunal. The High Court, submits Mr. Verma, has gone wrong in recording a fresh finding - "the expenditure was incurred with regard to the performance of the service outside India i.e. from East Africa to United Kingdom in connection with the execution of contract for supply of tea in the United Kingdom" - and on that basis upholding the claim of the respondent under Section 35-B; has further submission is neither the High Court nor this Court can do so without calling for a supplementary statement from the Tribunal on this aspect of the fact. 7. Mr. Ranjit Kumar, learned counsel appearing for the respondent-assessee company, invited our attention to the orders passed by the Income-Tax Officer, the Commissioner and the Tribunal and contended that there was no dispute with regard to the nature of the expenditure and therefore Mr. Vermas contention has to be rejected. 8. We have perused the orders of the Income Tax Officer, the Commissioner, the Appellate Commissioner and the Tribunal as also the order under appeal passed by the High Court. Though a copy of the return containing details of the expenditure claimed by the respondent under the above provision has not been placed on record, the orders of the departmental authorities as well as of the Tribunal and of the High Court leave us in no doubt that the weighted deduction under Section 35-B was claimed in respect of the expenditure incurred with regard to the performance of the services outside India i.e. in East Africa and United Kingdom in connection with the execution of the contract for the supply of tea of the United Kingdom. Indeed, the said fact is embodied in question No. 2 itself. 9. | 0[ds]Appellate Commissioner and the Tribunal as also the order under appeal passed by the High Court. Though a copy of the return containing details of the expenditure claimed by the respondent under the above provision has not been placed on record, the orders of the departmental authorities as well as of the Tribunal and of the High Court leave us in no doubt that the weighted deduction under Section 35-B was claimed in respect of the expenditure incurred with regard to the performance of the services outside India i.e. in East Africa and United Kingdom in connection with the execution of the contract for the supply of tea of the United Kingdom. Indeed, the said fact is embodied in question No. 2 itself. | 0 | 1,422 | 134 | ### 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:
made from India. That view was upheld by the Appellate Assistant Commissioner and the Income-tax Appellate Tribunal. Among others, the following two questions in Income Tax Reference No. 242 1976 and question No. 2 in Income Tax Reference No. 10 of 1987 were referred to the High Court of Judicature at Bombay by the Income-tax Appellate. Tribunal under Section 256(1) of the Act : "(1) Whether on the facts and in the circumstances of the case, the provisions of Section 40(c)(iii) 40(a)(v) applied in the case of the employees of the Assessee in its overseas branches ?(2) Whether on the facts and in the circumstances of the case, the assessee is entitled to weighted deduction under SEction 35-B in respect of the expenditure of Rs. 1,95,935/- incurred on export of tea from East Africa to the United Kingdom ?" 3. The first question was answered in the negative i.e in favour of the assessee and against the Revenue following the judgment in the case of the respondent-assessee for the earlier assessment years in Bombay Burmah Trading Corporation Ltd. v. Commissioner of Income Tax, Bombay City-IV, 1984(145) ITR 793. It is conceded by the learned counsel for the parties that t his question is covered against the Revenue by the judgment of this Court in Commissioner of Income Tax v. Continental Construction Ltd., 1998(230) ITR 485 affirming the judgment in Continental Construction Ltd. v. Commissioner of Income Tax, 1990(185) ITR 178. 4. Adverting to the second question, the High Court answered it in the affirmative i.e. in favour of the assessee and against the Revenue. It will be apt to refer to Section 35-B of the Act, which is the subject-matter of debate in all the five appeals. "35-B. Export Markets developments allowance - (1)(a). Where an assessee, being a domestic company or a person (other than a company) who is resident in India, has incurred after the 29th day of February, 1968, but before the 1st day of March, 1983, whether directly or in association with any other person, any expenditure (not being in the nature of capital expenditure or personal expenses of the assessee) referred to in clause (b), he shall, subject to the provisions of this section, be allowed a deduction of a sum equal to one and one-third times the amount of such expenditure incurred during the previous year;(b) The expenditure referred to in clause (a) is that incurred wholly and exclusively on -(i) advertisement or publicity outside India in respect of the goods, services or facilities which the assessee deals in or provides in the course of his business.....;**** ***** *****(viii) performance of services outside India in connection with, or incidental to, the execution of any contract for the supply outside India of such goods, services or facilities." On a plain reading of the provision of sub-section (1), extracted above, it is clear that to claim the benefit of this section the following conditions have to be satisfied : (i) the assessee must be a domestic company which is resident in India;(ii) it must have incurred expenditure after February 29, 1968 but before March 1, 1983;(iii) such expenditure should not be in the nature of capital expenditure or personal expenses of the assessee;(iv) the expenditure might have been incurred either directly or in association with any other person; and(v) the nature of the expenditure must answer the description referred to in any one of the sub-clauses of clause (b). On these requirements being satisfied the assessee-company becomes entitled to the weighted deduction under Section 35-B. It is not necessary that the export should be directly ex-India (from India). 5. The Tribunals reading of the Section that the export should be ex-India is not supported by the language of the provision or any authority. The High Court has, therefore, rightly concluded that to avail the benefit of weighted deduction the provision does not require that the export should be ex-India. It must be observed in fairness to Mr. M.L. Verma, learned senior counsel appearing for the Revenue, that he does not seriously dispute this proposition. Once this position is accepted, the order under challenge has to be sustained. 6. However, what Mr. Verma contends is that the respondent claims the expenditure under sub-clause (viii) for which there is no factual finding by the Tribunal. The High Court, submits Mr. Verma, has gone wrong in recording a fresh finding - "the expenditure was incurred with regard to the performance of the service outside India i.e. from East Africa to United Kingdom in connection with the execution of contract for supply of tea in the United Kingdom" - and on that basis upholding the claim of the respondent under Section 35-B; has further submission is neither the High Court nor this Court can do so without calling for a supplementary statement from the Tribunal on this aspect of the fact. 7. Mr. Ranjit Kumar, learned counsel appearing for the respondent-assessee company, invited our attention to the orders passed by the Income-Tax Officer, the Commissioner and the Tribunal and contended that there was no dispute with regard to the nature of the expenditure and therefore Mr. Vermas contention has to be rejected. 8. We have perused the orders of the Income Tax Officer, the Commissioner, the Appellate Commissioner and the Tribunal as also the order under appeal passed by the High Court. Though a copy of the return containing details of the expenditure claimed by the respondent under the above provision has not been placed on record, the orders of the departmental authorities as well as of the Tribunal and of the High Court leave us in no doubt that the weighted deduction under Section 35-B was claimed in respect of the expenditure incurred with regard to the performance of the services outside India i.e. in East Africa and United Kingdom in connection with the execution of the contract for the supply of tea of the United Kingdom. Indeed, the said fact is embodied in question No. 2 itself. 9.
### Response:
0
### Explanation:
Appellate Commissioner and the Tribunal as also the order under appeal passed by the High Court. Though a copy of the return containing details of the expenditure claimed by the respondent under the above provision has not been placed on record, the orders of the departmental authorities as well as of the Tribunal and of the High Court leave us in no doubt that the weighted deduction under Section 35-B was claimed in respect of the expenditure incurred with regard to the performance of the services outside India i.e. in East Africa and United Kingdom in connection with the execution of the contract for the supply of tea of the United Kingdom. Indeed, the said fact is embodied in question No. 2 itself.
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Fulchand Baburao Gedam Vs. Lokmat | grounds:-(a) That the finding of the Single Judge that the employer employee relationship is under dispute is unassailable. (b) The Labour Court which is the authority under MRTU and PULP act, which enjoys summary jurisdiction and which has a limited scope of exercise of powers does not have jurisdiction to entertain the complaints, and therefore, the complaints, which were wrongly entertained have been rightly dismissed by the learned Single Judge by allowing the Employers Writ Petitions. (c) Once the complaints under MRTU and PULP Act, were dismissed as not maintainable, only forum available was under the provisions of industrial Dispute Act. (d) It was not a case of denial of justice requiring interference in Letters Patent Appeals. (e) That the Letters Patent Appeals are not maintainable.( 14 ) LEARNED Advocate Mr. Marpakwar placed reliance on the following Judgments. (1) (1995)3 Supreme Court Cases 78 , Shramik Uttarsh Sabha Vs. Raymond Woolen Mills Ltd and others. (2) 1995 Supp (1) Supreme Court Cases 175, General Labour Union (Red Flag) Bombay Vs. Ahmedabad Mfg. and Calico Printing Co. Ltd. And others. (3) 2001 III CLR 1025 Hindustan Coca Cola Bottling S/w Pvt. Ltd. Vs. Bhartiya Kamgar Sena and Ors. (4) 2001 III CLR 728, Indian Seamless Metal Tubes Ltd. (Tubes division, Ahmednagar- Vs. Sunmil Rambhau Iwale and Ors. (5) (2001) 2 Supreme Court Cases 381, Vividh Kamgar Sabha Vs. Kalyani Steels Ltd. , and another. (6) (2001) 3 Supreme Court Cases 101, CIPLA Ltd. Vs. Maharashtra General Kamgar Union and others. (7) 2005 (4) Mh. L. J. Tukaram Tanaji Mandhare and another Vs. M/s Raymond Woollen Mills Ltd. , and others. (8) (2003) 10 Supreme Court Cases 455, Sarva Shramik Sangh Vs. Indian Smelting and Refining Co. Ltd. And others. (9) 2006 (2) Bom. LC 596 (Bom) Mahindra and Mahindra Ltd. Vs. General Employees Union and others. (10) 2006 (1) ALL MR 494, National Textile Corporation (SM) Ltd. Vs. Devraj Chandrabali Pai. (11) 2007 (4) Mh. L. J. Page 97 Janprabha Offset Works Vs. Sarva shramik Sangh, Jalgaon and another( 15 ) WE have carefully considered the issues involved, and submissions made by the learned Advocates for the parties. ( 16 ) IT is necessary to note that it was not the complainants case that:-(a) they were in fact, employed by a Contractor, and that said arrangement was sham and bogus; or (b) though they were employed through Contractor, they were in fact, rendering the job of regular nature and, therefore, by unveiling the camouflage of the contract labour, they were to be treated as direct employees; or (c) they were claiming the abolition of contract labour and absorption in employment. ( 17 ) IT is also seen that even it was not the employers case that the complainants were contractors employees genuinely employed as such, and therefore, the complaints were not maintainable. The entire case of employer was of plain and simplicitor denial, as it claimed that the workman concerned may have been employed/engaged by its Officers in their individual capacities. ( 18 ) THE learned Advocates for the parties have not cited any decision on the point as to in what manner the situation shall be dealt with if the case before the Court is of such a nature where the workmen are not employed through contractor, but the employer has barely denied the employer " employee relationship. ( 19 ) THE legal position as to contract labour and their absorption of the workmen in the employment of the Principal Employer can be summarised as follows:-(i) In Cipla Ltd. , Vs. Maharashtra General Union 2001 (2) SCC 381 and in Sarva Shramik Sangh v Indian Smelting and Refining Company ltd. , 2003 (10 SCC 455 2003 III CLR, it has been held that the authority under MRTU and PULP Act does not have jurisdiction to decide as to whether the workmen are in fact, directly employed by the principal Employer in the background of plea of agency of contract labour and the same is required to be adjudicated under the provisions of Industrial Disputes Act. (ii) Similarly in Steel Authority of India Ltd. , V National union of Waterfront Workers and others 2001 (7) SCC 1 it has been held that to abolish contract labour in any industry is the statutory function of appropriate Government. ( 20 ) PERUSAL of judgment impugned as well as the judgments of learned Single Judge of this Court in (1) 2006 (2) Bom. LC 596 (Bom)Mahindra and Mahindra Ltd. , Vs. General Employees Union, and (2) 2007 (4) Mh. L. J. , Janprabha Offset works Vs. Sarva Shramik sangh, Jalgaon, discloses that in these cases in which the employees concerned were employed with Canteen contractor, or a Contractor, and that it was alleged that the Contract was sham and bogus and, therefore, the workmen and were claiming to be employees of company by lifting veil as in case of the workmen in the case of Cipla Ltd. , supra. In case of Cipla Ltd. Complainants had claimed that the contract Labour be declared to be a sham and bogus device, and demanded a declaration that they be declared as direct employees. This type of prayer in complaint under Section 28 MRTU and PULP Act, was held impermissible. In the complaints filed by the workmen in the present cases such prayer is not made directly or indirectly. ( 21 ) AS stated above, issue of contract labour is not involved, directly or indirectly. We, therefore, hold that the ratio laid down in the aforesaid cases is not applicable to present cases. ( 22 ) IN the backdrop of the above discussion, we are of the considered view that applying ratio laid down in three Judgments of the Supreme Court referred to in para 19 would amount to including the appellants amongst the class of workmen to which they do not belong. ( 23 ) IN view of the above discussion, we hold that the complaints filed by the appellants before the Labour Court were maintainable. | 1[ds]( 17 ) IT is also seen that even it was not the employers case that the complainants were contractors employees genuinely employed as such, and therefore, the complaints were not maintainable. The entire case of employer was of plain and simplicitor denial, as it claimed that the workman concerned may have been employed/engaged by its Officers in their individual18 ) THE learned Advocates for the parties have not cited any decision on the point as to in what manner the situation shall be dealt with if the case before the Court is of such a nature where the workmen are not employed through contractor, but the employer has barely denied the employer " employee20 ) PERUSAL of judgment impugned as well as the judgments of learned Single Judge of this Court in (1) 2006 (2) Bom. LC 596 (Bom)Mahindra and Mahindra Ltd. , Vs. General Employees Union, and (2) 2007 (4) Mh. L. J. , Janprabha Offset works Vs. Sarva Shramik sangh, Jalgaon, discloses that in these cases in which the employees concerned were employed with Canteen contractor, or a Contractor, and that it was alleged that the Contract was sham and bogus and, therefore, the workmen and were claiming to be employees of company by lifting veil as in case of the workmen in the case of Cipla Ltd. , supra. In case of Cipla Ltd. Complainants had claimed that the contract Labour be declared to be a sham and bogus device, and demanded a declaration that they be declared as direct employees. This type of prayer in complaint under Section 28 MRTU and PULP Act, was held impermissible. In the complaints filed by the workmen in the present cases such prayer is not made directly or21 ) AS stated above, issue of contract labour is not involved, directly or indirectly. We, therefore, hold that the ratio laid down in the aforesaid cases is not applicable to present22 ) IN the backdrop of the above discussion, we are of the considered view that applying ratio laid down in three Judgments of the Supreme Court referred to in para 19 would amount to including the appellants amongst the class of workmen to which they do not23 ) IN view of the above discussion, we hold that the complaints filed by the appellants before the Labour Court were maintainable. | 1 | 3,693 | 431 | ### 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:
grounds:-(a) That the finding of the Single Judge that the employer employee relationship is under dispute is unassailable. (b) The Labour Court which is the authority under MRTU and PULP act, which enjoys summary jurisdiction and which has a limited scope of exercise of powers does not have jurisdiction to entertain the complaints, and therefore, the complaints, which were wrongly entertained have been rightly dismissed by the learned Single Judge by allowing the Employers Writ Petitions. (c) Once the complaints under MRTU and PULP Act, were dismissed as not maintainable, only forum available was under the provisions of industrial Dispute Act. (d) It was not a case of denial of justice requiring interference in Letters Patent Appeals. (e) That the Letters Patent Appeals are not maintainable.( 14 ) LEARNED Advocate Mr. Marpakwar placed reliance on the following Judgments. (1) (1995)3 Supreme Court Cases 78 , Shramik Uttarsh Sabha Vs. Raymond Woolen Mills Ltd and others. (2) 1995 Supp (1) Supreme Court Cases 175, General Labour Union (Red Flag) Bombay Vs. Ahmedabad Mfg. and Calico Printing Co. Ltd. And others. (3) 2001 III CLR 1025 Hindustan Coca Cola Bottling S/w Pvt. Ltd. Vs. Bhartiya Kamgar Sena and Ors. (4) 2001 III CLR 728, Indian Seamless Metal Tubes Ltd. (Tubes division, Ahmednagar- Vs. Sunmil Rambhau Iwale and Ors. (5) (2001) 2 Supreme Court Cases 381, Vividh Kamgar Sabha Vs. Kalyani Steels Ltd. , and another. (6) (2001) 3 Supreme Court Cases 101, CIPLA Ltd. Vs. Maharashtra General Kamgar Union and others. (7) 2005 (4) Mh. L. J. Tukaram Tanaji Mandhare and another Vs. M/s Raymond Woollen Mills Ltd. , and others. (8) (2003) 10 Supreme Court Cases 455, Sarva Shramik Sangh Vs. Indian Smelting and Refining Co. Ltd. And others. (9) 2006 (2) Bom. LC 596 (Bom) Mahindra and Mahindra Ltd. Vs. General Employees Union and others. (10) 2006 (1) ALL MR 494, National Textile Corporation (SM) Ltd. Vs. Devraj Chandrabali Pai. (11) 2007 (4) Mh. L. J. Page 97 Janprabha Offset Works Vs. Sarva shramik Sangh, Jalgaon and another( 15 ) WE have carefully considered the issues involved, and submissions made by the learned Advocates for the parties. ( 16 ) IT is necessary to note that it was not the complainants case that:-(a) they were in fact, employed by a Contractor, and that said arrangement was sham and bogus; or (b) though they were employed through Contractor, they were in fact, rendering the job of regular nature and, therefore, by unveiling the camouflage of the contract labour, they were to be treated as direct employees; or (c) they were claiming the abolition of contract labour and absorption in employment. ( 17 ) IT is also seen that even it was not the employers case that the complainants were contractors employees genuinely employed as such, and therefore, the complaints were not maintainable. The entire case of employer was of plain and simplicitor denial, as it claimed that the workman concerned may have been employed/engaged by its Officers in their individual capacities. ( 18 ) THE learned Advocates for the parties have not cited any decision on the point as to in what manner the situation shall be dealt with if the case before the Court is of such a nature where the workmen are not employed through contractor, but the employer has barely denied the employer " employee relationship. ( 19 ) THE legal position as to contract labour and their absorption of the workmen in the employment of the Principal Employer can be summarised as follows:-(i) In Cipla Ltd. , Vs. Maharashtra General Union 2001 (2) SCC 381 and in Sarva Shramik Sangh v Indian Smelting and Refining Company ltd. , 2003 (10 SCC 455 2003 III CLR, it has been held that the authority under MRTU and PULP Act does not have jurisdiction to decide as to whether the workmen are in fact, directly employed by the principal Employer in the background of plea of agency of contract labour and the same is required to be adjudicated under the provisions of Industrial Disputes Act. (ii) Similarly in Steel Authority of India Ltd. , V National union of Waterfront Workers and others 2001 (7) SCC 1 it has been held that to abolish contract labour in any industry is the statutory function of appropriate Government. ( 20 ) PERUSAL of judgment impugned as well as the judgments of learned Single Judge of this Court in (1) 2006 (2) Bom. LC 596 (Bom)Mahindra and Mahindra Ltd. , Vs. General Employees Union, and (2) 2007 (4) Mh. L. J. , Janprabha Offset works Vs. Sarva Shramik sangh, Jalgaon, discloses that in these cases in which the employees concerned were employed with Canteen contractor, or a Contractor, and that it was alleged that the Contract was sham and bogus and, therefore, the workmen and were claiming to be employees of company by lifting veil as in case of the workmen in the case of Cipla Ltd. , supra. In case of Cipla Ltd. Complainants had claimed that the contract Labour be declared to be a sham and bogus device, and demanded a declaration that they be declared as direct employees. This type of prayer in complaint under Section 28 MRTU and PULP Act, was held impermissible. In the complaints filed by the workmen in the present cases such prayer is not made directly or indirectly. ( 21 ) AS stated above, issue of contract labour is not involved, directly or indirectly. We, therefore, hold that the ratio laid down in the aforesaid cases is not applicable to present cases. ( 22 ) IN the backdrop of the above discussion, we are of the considered view that applying ratio laid down in three Judgments of the Supreme Court referred to in para 19 would amount to including the appellants amongst the class of workmen to which they do not belong. ( 23 ) IN view of the above discussion, we hold that the complaints filed by the appellants before the Labour Court were maintainable.
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( 17 ) IT is also seen that even it was not the employers case that the complainants were contractors employees genuinely employed as such, and therefore, the complaints were not maintainable. The entire case of employer was of plain and simplicitor denial, as it claimed that the workman concerned may have been employed/engaged by its Officers in their individual18 ) THE learned Advocates for the parties have not cited any decision on the point as to in what manner the situation shall be dealt with if the case before the Court is of such a nature where the workmen are not employed through contractor, but the employer has barely denied the employer " employee20 ) PERUSAL of judgment impugned as well as the judgments of learned Single Judge of this Court in (1) 2006 (2) Bom. LC 596 (Bom)Mahindra and Mahindra Ltd. , Vs. General Employees Union, and (2) 2007 (4) Mh. L. J. , Janprabha Offset works Vs. Sarva Shramik sangh, Jalgaon, discloses that in these cases in which the employees concerned were employed with Canteen contractor, or a Contractor, and that it was alleged that the Contract was sham and bogus and, therefore, the workmen and were claiming to be employees of company by lifting veil as in case of the workmen in the case of Cipla Ltd. , supra. In case of Cipla Ltd. Complainants had claimed that the contract Labour be declared to be a sham and bogus device, and demanded a declaration that they be declared as direct employees. This type of prayer in complaint under Section 28 MRTU and PULP Act, was held impermissible. In the complaints filed by the workmen in the present cases such prayer is not made directly or21 ) AS stated above, issue of contract labour is not involved, directly or indirectly. We, therefore, hold that the ratio laid down in the aforesaid cases is not applicable to present22 ) IN the backdrop of the above discussion, we are of the considered view that applying ratio laid down in three Judgments of the Supreme Court referred to in para 19 would amount to including the appellants amongst the class of workmen to which they do not23 ) IN view of the above discussion, we hold that the complaints filed by the appellants before the Labour Court were maintainable.
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M/s. Ballarpur Industries Limited Vs. Assistant Collector of Customs and Central Excise and Others | 1. The appellant, a Public Limited Company, has preferred these appeals against the decision of the High Court dismissing its writ petitions by which the appellant sought to question the decision of the Revenue levying excise duty under Rule 17(4) of the Central Excise Rules, 1944. The said show-cause notice was issued under Rule 10, as in force prior to 6-8-1977 (sic 1976) which inter alia provided that "when duties or charges have been short-levied through inadvertence, error, collusion or misconstruction on the part of an officer, or through misstatement as to the quantity, description or value of such goods on the part of the owner, or when any such duty or charge, after having been levied, has been owing to any such cause, erroneously refunded, the proper officer may, within three months from the date on which the duty or charge was paid or adjusted in the owners account - current, if any, or from the date of making the refund, serve a notice on the person from whom such deficiency in duty or charges is or are recoverable requiring him to show cause to the Assistant Collector of Central Excise why he should not pay the amount specified in the notice" * 2. Under Rule 173-J, in the case of self-removal, the time-limit for recovery of short levy or refund of excess levy, etc., was fixed as one year instead of three months as stated in Rule 10. 3. There is no doubt that in the instant case the show-cause notice was issued within time. Although, the show-cause notice was for a longer time it was confined to one year only and therefore, instead of the amount of Rs 4, 37, 074.60 demanded in the show-cause notice, the amount was reduced to Rs 47, 173.37.4. Two contentions were raised in the writ petition and the very same contentions have been raised in these appeals. Counsel for the appellant, however, fairly conceded that so far as the first contention based on the expression "other legal proceedings" in Section 40(2) of the Central Excises and Salt Act, is concerned, the same stands squarely covered against the assessee by the decision of this Court in Asstt. CCE v. Ramdev Tobacco Co. [ 1991 (2) SCC 119 ]. We, therefore, need not detain ourselves on the first contention5. The second contention urged on behalf of the appellant is that the Department having accepted the classification of goods and the price list year after year was estopped from questioning the same as Rule 10 of the Rules did not permit change in the classification list retrospectively. Reliance was placed on the decision of this Court in Rainbow Industries (P) Ltd. v. CCE [ 1994 (6) SCC 563 : 1994 (74) ELT 3 ] wherein this Court held that once the Department accepted the price list, acted upon it and the goods were cleared with the knowledge of the Department, then in the absence of any amendment in law or judicial pronouncement, the reclassification should be effective from the date the Department issued the show-cause notice. The reason for it is, say their Lordships, clearance with the knowledge of the Department and not intentional evasion of duty. On this line of reasoning it was held in that case that the appellant was not liable to pay duty in respect of the past period prior to the issuance of show-cause notice to the appellant. We find it difficult to persuade ourselves to this line of reasoning. Although, in that case the Court did not notice Rule 10 as it stood prior to 6-8-1976 even though the show-cause notice in that case was dated 16-10-1976, reference was made to Section 11-A of the Act which is more or less (substantially) the same. Under the said provision when any duty of excise is found to have been not levied or paid or has been short-levied or short-paid or erroneously refunded, a show-cause notice could be issued on the person chargeable with the duty within six months from the relevant date requiring him to show cause why he should not pay the amount specified in the notice. The expression "relevant date" has been defined in clause (ii) of sub-section (3) of Section 11-A. On the plain reading of the said provision as also Rule 10 as it stood prior to 6-8-1976 the show-cause notice which could be issued within the time-limit prescribed under the relevant provision could only be in relation to the duty of excise for a period prior to the issuance of show-cause notice. There could be no reason for the issuance of a show-cause notice for the period subsequent to the notice as in the case the necessary corrective action could always be taken. But Rule 10 with which we are concerned as well as Section 11-A to which a reference is made in the case of Rainbow Industries, the show-cause notice which must be issued within the time-frame prescribed in the said provisions must relate to a period prior thereto as the purpose of the show-cause notice is recovery of duties or charges short-levied, etc. We, therefore, find it difficult to accept the contention that the ratio of the decision in Rainbow Industries [ 1994 (6) SCC 563 : 1994 (74) ELT 3 ] is that under Section 11-A past dues cannot be demanded. We must, therefore, reject that contention. The observations in the said decision must be confined to the facts of that case6. 5. | 0[ds]3. There is no doubt that in the instant case thenotice was issued within time. Although, thenotice was for a longer time it was confined to one year only and therefore, instead of the amount of Rs 4, 37, 074.60 demanded in thenotice, the amount was reduced to Rs 47,find it difficult to persuade ourselves to this line of reasoning. Although, in that case the Court did not notice Rule 10 as it stood prior toeven though thenotice in that case was datedreference was made to Sectionof the Act which is more or less (substantially) the same. Under the said provision when any duty of excise is found to have been not levied or paid or has beenid or erroneously refunded, anotice could be issued on the person chargeable with the duty within six months from the relevant date requiring him to show cause why he should not pay the amount specified in the notice. The expression "relevant date" has been defined in clause (ii) of(3) of SectionOn the plain reading of the said provision as also Rule 10 as it stood prior tose notice which could be issued within theprescribed under the relevant provision could only be in relation to the duty of excise for a period prior to the issuance ofnotice. There could be no reason for the issuance of anotice for the period subsequent to the notice as in the case the necessary corrective action could always be taken. But Rule 10 with which we are concerned as well as Sectionto which a reference is made in the case of Rainbow Industries, thenotice which must be issued within theprescribed in the said provisions must relate to a period prior thereto as the purpose of thenotice is recovery of duties or chargesetc. We, therefore, find it difficult to accept the contention that the ratio of the decision in Rainbow Industries [ 1994 (6) SCC 563 : 1994 (74) ELT 3 ] is that under Sectionpast dues cannot be demanded. We must, therefore, reject that contention. The observations in the said decision must be confined to the facts of that case | 0 | 1,018 | 394 | ### 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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1. The appellant, a Public Limited Company, has preferred these appeals against the decision of the High Court dismissing its writ petitions by which the appellant sought to question the decision of the Revenue levying excise duty under Rule 17(4) of the Central Excise Rules, 1944. The said show-cause notice was issued under Rule 10, as in force prior to 6-8-1977 (sic 1976) which inter alia provided that "when duties or charges have been short-levied through inadvertence, error, collusion or misconstruction on the part of an officer, or through misstatement as to the quantity, description or value of such goods on the part of the owner, or when any such duty or charge, after having been levied, has been owing to any such cause, erroneously refunded, the proper officer may, within three months from the date on which the duty or charge was paid or adjusted in the owners account - current, if any, or from the date of making the refund, serve a notice on the person from whom such deficiency in duty or charges is or are recoverable requiring him to show cause to the Assistant Collector of Central Excise why he should not pay the amount specified in the notice" * 2. Under Rule 173-J, in the case of self-removal, the time-limit for recovery of short levy or refund of excess levy, etc., was fixed as one year instead of three months as stated in Rule 10. 3. There is no doubt that in the instant case the show-cause notice was issued within time. Although, the show-cause notice was for a longer time it was confined to one year only and therefore, instead of the amount of Rs 4, 37, 074.60 demanded in the show-cause notice, the amount was reduced to Rs 47, 173.37.4. Two contentions were raised in the writ petition and the very same contentions have been raised in these appeals. Counsel for the appellant, however, fairly conceded that so far as the first contention based on the expression "other legal proceedings" in Section 40(2) of the Central Excises and Salt Act, is concerned, the same stands squarely covered against the assessee by the decision of this Court in Asstt. CCE v. Ramdev Tobacco Co. [ 1991 (2) SCC 119 ]. We, therefore, need not detain ourselves on the first contention5. The second contention urged on behalf of the appellant is that the Department having accepted the classification of goods and the price list year after year was estopped from questioning the same as Rule 10 of the Rules did not permit change in the classification list retrospectively. Reliance was placed on the decision of this Court in Rainbow Industries (P) Ltd. v. CCE [ 1994 (6) SCC 563 : 1994 (74) ELT 3 ] wherein this Court held that once the Department accepted the price list, acted upon it and the goods were cleared with the knowledge of the Department, then in the absence of any amendment in law or judicial pronouncement, the reclassification should be effective from the date the Department issued the show-cause notice. The reason for it is, say their Lordships, clearance with the knowledge of the Department and not intentional evasion of duty. On this line of reasoning it was held in that case that the appellant was not liable to pay duty in respect of the past period prior to the issuance of show-cause notice to the appellant. We find it difficult to persuade ourselves to this line of reasoning. Although, in that case the Court did not notice Rule 10 as it stood prior to 6-8-1976 even though the show-cause notice in that case was dated 16-10-1976, reference was made to Section 11-A of the Act which is more or less (substantially) the same. Under the said provision when any duty of excise is found to have been not levied or paid or has been short-levied or short-paid or erroneously refunded, a show-cause notice could be issued on the person chargeable with the duty within six months from the relevant date requiring him to show cause why he should not pay the amount specified in the notice. The expression "relevant date" has been defined in clause (ii) of sub-section (3) of Section 11-A. On the plain reading of the said provision as also Rule 10 as it stood prior to 6-8-1976 the show-cause notice which could be issued within the time-limit prescribed under the relevant provision could only be in relation to the duty of excise for a period prior to the issuance of show-cause notice. There could be no reason for the issuance of a show-cause notice for the period subsequent to the notice as in the case the necessary corrective action could always be taken. But Rule 10 with which we are concerned as well as Section 11-A to which a reference is made in the case of Rainbow Industries, the show-cause notice which must be issued within the time-frame prescribed in the said provisions must relate to a period prior thereto as the purpose of the show-cause notice is recovery of duties or charges short-levied, etc. We, therefore, find it difficult to accept the contention that the ratio of the decision in Rainbow Industries [ 1994 (6) SCC 563 : 1994 (74) ELT 3 ] is that under Section 11-A past dues cannot be demanded. We must, therefore, reject that contention. The observations in the said decision must be confined to the facts of that case6. 5.
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3. There is no doubt that in the instant case thenotice was issued within time. Although, thenotice was for a longer time it was confined to one year only and therefore, instead of the amount of Rs 4, 37, 074.60 demanded in thenotice, the amount was reduced to Rs 47,find it difficult to persuade ourselves to this line of reasoning. Although, in that case the Court did not notice Rule 10 as it stood prior toeven though thenotice in that case was datedreference was made to Sectionof the Act which is more or less (substantially) the same. Under the said provision when any duty of excise is found to have been not levied or paid or has beenid or erroneously refunded, anotice could be issued on the person chargeable with the duty within six months from the relevant date requiring him to show cause why he should not pay the amount specified in the notice. The expression "relevant date" has been defined in clause (ii) of(3) of SectionOn the plain reading of the said provision as also Rule 10 as it stood prior tose notice which could be issued within theprescribed under the relevant provision could only be in relation to the duty of excise for a period prior to the issuance ofnotice. There could be no reason for the issuance of anotice for the period subsequent to the notice as in the case the necessary corrective action could always be taken. But Rule 10 with which we are concerned as well as Sectionto which a reference is made in the case of Rainbow Industries, thenotice which must be issued within theprescribed in the said provisions must relate to a period prior thereto as the purpose of thenotice is recovery of duties or chargesetc. We, therefore, find it difficult to accept the contention that the ratio of the decision in Rainbow Industries [ 1994 (6) SCC 563 : 1994 (74) ELT 3 ] is that under Sectionpast dues cannot be demanded. We must, therefore, reject that contention. The observations in the said decision must be confined to the facts of that case
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Mangal Sen Vs. Kanchhid Mal | to appeal against the judgment of the District Court. That request was granted by order of this Court dated April 23, 1980. This Civil Appeal is thus directed against the judgment of the District Judge.6. After hearing counsel on both sides, we are satisfied that the District Court was perfectly right in its view that there had not been any conduct on the part of the plaintiff which would constitute a waiver by him of the demand for surrender of possession made as per the notice dated October 9, 1972 which was served on the tenant on October 19, 1972. As rightly observed by the District Court, the defendant had not put forwa rd any plea of waiver in the written statement filed by him before the trial court and the absence of any specific pleading in that behalf, the trial court was not really called upon to go into the question of waiver. Further, it being the specific case put forward by the defendant himself that no amount whatever had been paid by the appellant-defendant to the sales-tax authorities on behalf of the plaintiff and that the respondent-plaintiff was not agreeable to make any endorsement on the Rent Deed adjusting the proposed payment of sales-tax against the arrears of rent, we fail to see how it can be said that there had been any waiver by the plaintiff-respondent of the demand for surrender of possession already made by him as per the notice dated October 9, 1972. The finding rendered b)! the trial court that the effect of the notice had been effaced by the subsequent conduct on the part of the landlord which amounted to a waiver was manifestly illegal and perverse and it was rightly set aside by the District Judge.Before us, an additional point was sought to be raised by the appellant which had not been put forward by him either before the trial court or before the District Judge at the revisional stage. It was urged that on the date of first hearing of the suit the defendant had deposited into the trial court an amount of Rs. 1, 980/- and hence he is entitled to the benefit of sub-section (4) of Section 20 of the Act which empowers the Court to pass an order relieving the tenant against his liability for eviction on the ground mentioned in clause (a) of sub-section (2) of the said Section. It is necessary in this context to reproduce clause (a) of sub-section (2) and sub-section (4) of Section 20 of the Act. They are in the following terms:"20 (2)..........................................(a) that the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand.(4) In any suit for eviction on the ground mentioned in clause (a) of sub-section (2), if at the first hearing of the suit, the tenant unconditionally pays or tenders to the landlord the entire amount of rent and damages for use and occupation of the building due from him (such damages for use and occupation being calculated at the same rat e as rent) together with interest thereon at the rate of nine per cent per annum and the landlords costs of the suit in respect thereof, after deducting therefrom any amount already deposited by the tenant under sub- section (I) of Section 30, the court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on that ground:Provided that nothing in this sub-sect ion shall apply in relation to a tenant who or any member of whose family has built or has otherwise acquired in a vacant state, or has got vacated after acquisition, any residential building in the same city, municipality, notified area or town area."The provisions of sub-section (4) will get attracted only if the tenant has, at the first hearing of the suit, unconditionally paid or tendered to the landlord the entire amount of rent and damages for use an d occupation of the building due from him together with interest thereon at the rate of nine per cent per annum and the landlords costs of the suit in respect thereof, after deducting therefrom any amount already deposited by him under sub-section (I) of Section 30. There is absolutely no material available on the record to show that the alleged deposit of Rs. 1, 980/- was made by the tenant on the first date of hearing itself and, what is more important, that the said deposit was made by way of an unconditional tender for payment to the landlord. The deposit in question is said to have been made by the appellant on January 25, 1974. It was only subsequent thereto that the appellant filed his written statement in the suit. It is noteworthy that one of the principal contentions raised by the appellant-defendant in the written statement was that since he had stood surety for the landlord for arrears of sales-tax, there was no default by him in the payment of rent. In the face of the said plea taken in the written statement, disputing the existence of any arrears of rent and denying that there had been a default, it is clear that the deposit, even it was made on the date of the first hearing, was not an unconditional tender of the amount for payment to the landlord. Further, there is also nothing on record to show that what was deposited was the correct amount calculated in accordance with the provisions of Section 20 (4).7. In these circumstances, we hold that the appellant has failed to establish that he has complied with the conditions specified in sub-section (4) of Section 20 and hence he is not entitled to be relieved against his liability for eviction on the ground set out in clause (a) of sub-section (2) of the said Section. | 0[ds]After hearing counsel on both sides, we are satisfied that the District Court was perfectly right in its view that there had not been any conduct on the part of the plaintiff which would constitute a waiver by him of the demand for surrender of possession made as per the notice dated October 9, 1972 which was served on the tenant on October 19, 1972. As rightly observed by the District Court, the defendant had not put forwa rd any plea of waiver in the written statement filed by him before the trial court and the absence of any specific pleading in that behalf, the trial court was not really called upon to go into the question of waiver. Further, it being the specific case put forward by the defendant himself that no amount whatever had been paid by the appellant-defendant to the sales-tax authorities on behalf of the plaintiff and that the respondent-plaintiff was not agreeable to make any endorsement on the Rent Deed adjusting the proposed payment of sales-tax against the arrears of rent, we fail to see how it can be said that there had been any waiver by the plaintiff-respondent of the demand for surrender of possession already made by him as per the notice dated October 9, 1972. The finding rendered b)! the trial court that the effect of the notice had been effaced by the subsequent conduct on the part of the landlord which amounted to a waiver was manifestly illegal and perverse and it was rightly setdeposit in question is said to have been made by the appellant on January 25, 1974. It was only subsequent thereto that the appellant filed his written statement in the suit. It is noteworthy that one of the principal contentions raised by the appellant-defendant in the written statement was that since he had stood surety for the landlord for arrears of sales-tax, there was no default by him in the payment of rent. In the face of the said plea taken in the written statement, disputing the existence of any arrears of rent and denying that there had been a default, it is clear that the deposit, even it was made on the date of the first hearing, was not an unconditional tender of the amount for payment to the landlord. Further, there is also nothing on record to show that what was deposited was the correct amount calculated in accordance with the provisions of Section 20 (4).n these circumstances, we hold that the appellant has failed to establish that he has complied with the conditions specified in sub-section (4) of Section 20 and hence he is not entitled to be relieved against his liability for eviction on the ground set out in clause (a) of sub-section (2) of the saidwould appear that, at the time of the preliminary hearing of the Special Leave Petition, the appellant realised that the Revision Petition filed by him before the High Court was not maintainable in law. Hence, this position was conceded by the appellant before a Bench which heard the Special Leave Petition and a request was made by the appellant for the grant of special leave to him to appeal against the judgment of the District Court. That request was granted by order of this Court dated April 23, 1980. This Civil Appeal is thus directed against the judgment of the District Judge. | 0 | 2,036 | 611 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
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to appeal against the judgment of the District Court. That request was granted by order of this Court dated April 23, 1980. This Civil Appeal is thus directed against the judgment of the District Judge.6. After hearing counsel on both sides, we are satisfied that the District Court was perfectly right in its view that there had not been any conduct on the part of the plaintiff which would constitute a waiver by him of the demand for surrender of possession made as per the notice dated October 9, 1972 which was served on the tenant on October 19, 1972. As rightly observed by the District Court, the defendant had not put forwa rd any plea of waiver in the written statement filed by him before the trial court and the absence of any specific pleading in that behalf, the trial court was not really called upon to go into the question of waiver. Further, it being the specific case put forward by the defendant himself that no amount whatever had been paid by the appellant-defendant to the sales-tax authorities on behalf of the plaintiff and that the respondent-plaintiff was not agreeable to make any endorsement on the Rent Deed adjusting the proposed payment of sales-tax against the arrears of rent, we fail to see how it can be said that there had been any waiver by the plaintiff-respondent of the demand for surrender of possession already made by him as per the notice dated October 9, 1972. The finding rendered b)! the trial court that the effect of the notice had been effaced by the subsequent conduct on the part of the landlord which amounted to a waiver was manifestly illegal and perverse and it was rightly set aside by the District Judge.Before us, an additional point was sought to be raised by the appellant which had not been put forward by him either before the trial court or before the District Judge at the revisional stage. It was urged that on the date of first hearing of the suit the defendant had deposited into the trial court an amount of Rs. 1, 980/- and hence he is entitled to the benefit of sub-section (4) of Section 20 of the Act which empowers the Court to pass an order relieving the tenant against his liability for eviction on the ground mentioned in clause (a) of sub-section (2) of the said Section. It is necessary in this context to reproduce clause (a) of sub-section (2) and sub-section (4) of Section 20 of the Act. They are in the following terms:"20 (2)..........................................(a) that the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand.(4) In any suit for eviction on the ground mentioned in clause (a) of sub-section (2), if at the first hearing of the suit, the tenant unconditionally pays or tenders to the landlord the entire amount of rent and damages for use and occupation of the building due from him (such damages for use and occupation being calculated at the same rat e as rent) together with interest thereon at the rate of nine per cent per annum and the landlords costs of the suit in respect thereof, after deducting therefrom any amount already deposited by the tenant under sub- section (I) of Section 30, the court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on that ground:Provided that nothing in this sub-sect ion shall apply in relation to a tenant who or any member of whose family has built or has otherwise acquired in a vacant state, or has got vacated after acquisition, any residential building in the same city, municipality, notified area or town area."The provisions of sub-section (4) will get attracted only if the tenant has, at the first hearing of the suit, unconditionally paid or tendered to the landlord the entire amount of rent and damages for use an d occupation of the building due from him together with interest thereon at the rate of nine per cent per annum and the landlords costs of the suit in respect thereof, after deducting therefrom any amount already deposited by him under sub-section (I) of Section 30. There is absolutely no material available on the record to show that the alleged deposit of Rs. 1, 980/- was made by the tenant on the first date of hearing itself and, what is more important, that the said deposit was made by way of an unconditional tender for payment to the landlord. The deposit in question is said to have been made by the appellant on January 25, 1974. It was only subsequent thereto that the appellant filed his written statement in the suit. It is noteworthy that one of the principal contentions raised by the appellant-defendant in the written statement was that since he had stood surety for the landlord for arrears of sales-tax, there was no default by him in the payment of rent. In the face of the said plea taken in the written statement, disputing the existence of any arrears of rent and denying that there had been a default, it is clear that the deposit, even it was made on the date of the first hearing, was not an unconditional tender of the amount for payment to the landlord. Further, there is also nothing on record to show that what was deposited was the correct amount calculated in accordance with the provisions of Section 20 (4).7. In these circumstances, we hold that the appellant has failed to establish that he has complied with the conditions specified in sub-section (4) of Section 20 and hence he is not entitled to be relieved against his liability for eviction on the ground set out in clause (a) of sub-section (2) of the said Section.
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After hearing counsel on both sides, we are satisfied that the District Court was perfectly right in its view that there had not been any conduct on the part of the plaintiff which would constitute a waiver by him of the demand for surrender of possession made as per the notice dated October 9, 1972 which was served on the tenant on October 19, 1972. As rightly observed by the District Court, the defendant had not put forwa rd any plea of waiver in the written statement filed by him before the trial court and the absence of any specific pleading in that behalf, the trial court was not really called upon to go into the question of waiver. Further, it being the specific case put forward by the defendant himself that no amount whatever had been paid by the appellant-defendant to the sales-tax authorities on behalf of the plaintiff and that the respondent-plaintiff was not agreeable to make any endorsement on the Rent Deed adjusting the proposed payment of sales-tax against the arrears of rent, we fail to see how it can be said that there had been any waiver by the plaintiff-respondent of the demand for surrender of possession already made by him as per the notice dated October 9, 1972. The finding rendered b)! the trial court that the effect of the notice had been effaced by the subsequent conduct on the part of the landlord which amounted to a waiver was manifestly illegal and perverse and it was rightly setdeposit in question is said to have been made by the appellant on January 25, 1974. It was only subsequent thereto that the appellant filed his written statement in the suit. It is noteworthy that one of the principal contentions raised by the appellant-defendant in the written statement was that since he had stood surety for the landlord for arrears of sales-tax, there was no default by him in the payment of rent. In the face of the said plea taken in the written statement, disputing the existence of any arrears of rent and denying that there had been a default, it is clear that the deposit, even it was made on the date of the first hearing, was not an unconditional tender of the amount for payment to the landlord. Further, there is also nothing on record to show that what was deposited was the correct amount calculated in accordance with the provisions of Section 20 (4).n these circumstances, we hold that the appellant has failed to establish that he has complied with the conditions specified in sub-section (4) of Section 20 and hence he is not entitled to be relieved against his liability for eviction on the ground set out in clause (a) of sub-section (2) of the saidwould appear that, at the time of the preliminary hearing of the Special Leave Petition, the appellant realised that the Revision Petition filed by him before the High Court was not maintainable in law. Hence, this position was conceded by the appellant before a Bench which heard the Special Leave Petition and a request was made by the appellant for the grant of special leave to him to appeal against the judgment of the District Court. That request was granted by order of this Court dated April 23, 1980. This Civil Appeal is thus directed against the judgment of the District Judge.
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Bhagwan Datta Shastri Vs. Ram Ratanji Gupta & Ors | within a mile from Alhoua. The motor truck used to stop near the polling booth in the school every time."P. W. 75 said -"I canvassed for Shri Achutanand who was Socialist candidate for Assembly and for Sri Bhagwan Dutt Shastri who was Socialist candidate for House of People. Shri Achutanand had got two motor trucks". Achutanand himself has been examined as R. W. 21. While he denied carrying or conveying voters in a motor truck to the polling station on the date of the poll, he admitted that his brother Anjani Kumar and another Bhayya who lived in his village had trucks which were in use during the election and attempted to explain that those trucks were possibly hired by the Government to carry ballot boxes. The Tribunal took all this evidence into consideration and came to a definite finding that motor trucks belonging to Achutanand were used on the polling date for the conveyance of electors to the polling booth. On the evidence, this finding cannot be seriously challenged. But what is strongly urged is that the connection of the use of those trucks with the prospects of the candidature of the appellant is not established and that, at any rate, the link of agency between the appellant and Achutanand along with his workers, who according to the evidence were responsible for the carrying of the voters to the polling booths has not at all been established. It is said that some theory of agency has been assumed on an erroneous view as to what constitutes agency for election purposes and it is urged that the assumption is erroneous in law. It is true that Election Courts have generally accepted a somewhat different standard of proof as regards the question of agency in election matters. It is to be noticed that in the Act the word "agent" has been defined in S. 79(a) as follows:" agent includes an election agent, a polling agent and a counting agent and any person who, on the trial of an election petition or of an offence with respect to any election, is held to have acted as an agent in connection with the election with the knowledge or consent of the candidate."The questions as to the limits of the doctrine of agency in election matters and the exact scope and effect of the statutory definition of agent may require to be carefully considered by this Court when they become necessary in a proper case. These are important questions bearing on the whole structure of elections run on party lines and have not been adequately dealt with in this case. In the present case the finding arrived at by the Tribunal against the appellant in this behalf is based on clear evidence, which may properly form the basis of a positive finding of agency. It is necessary for this purpose to understand the system of the present elections of which evidence has been given by a number of witnesses. R. W. 14 gives evidence as follows:"I have been a member of the Socialist Party since 1949. During the election I was General Secretary of the Mauganj Tehsil Socialist Party. At the time of elections I knew that Bhagwan Dutt Shastri was standing as Socialist candidate. Achutanand was one of the three candidates of the Socialist Party for the Assembly. I was one of those who were in charge of supervision of election campaign on behalf of the Socialist Party. Workers did not canvass for any candidate by name but they canvassed for the party candidates generally. Respondent No. 1 had no worker of his own in his individual capacity .......Ordinarily all expenses in connection with the election of party candidates were incurred out of the party fund."Another witness on behalf of the appellant, R. W. 18, said as follows:"I am acquainted with the workers of the Socialist Party in my constituency. ... They were working for the party candidate as such and not for any one individually. Shastriji was a candidate for the Socialist Party."Achutanand himself as R. W. 21 stated as follows:"In my constituency canvassing and propaganda used to be carried on party lines and not for any individual candidates. Respondent No. 1 had no worker or canvasser in my constituency. Respondent No. 1 got majority of votes because of the extensive propaganda carried on for the Socialist Party and its symbol banyan tree".13.On this evidence it cannot be said that the Election Tribunal was not justified in holding that the carrying of the voters to the polling station in the trucks of Achutanand was with the connivance of the appellant who was a party candidate. That by itself would be enough to bring his case within S. 126(6) of the Act. It is not unreasonable to impute to the candidate the knowledge of the work done by his party in this area and to impute the consequent connivance on his part.This appears from the fact that the return of the election expenses of the appellant at page 78 of the printed record, shows the payment of some amount by the appellant to the Socialist Party for expenses and from the fact that the appellant on the very evidence of his own witnesses had no other independent workers of his own in this area. We are, therefore, satisfied that the finding of the Election Tribunal in this behalf is also well-grounded.14. It follows that in our opinion there is no reason for interfering with the findings of the Election Tribunal relating to the three alleged corrupt practices set out above. On these findings the result arrived at by the Tribunal that the election of the appellant should be set aside by virtue of S. 100 (2)(b) of the Act must be sustained.15. In this view it is unnecessary to deal with the findings of the Tribunal relating to the rejection of the nominations of Baboo Lal Udani, Deep Narain and Rajkishore Shukla and to consider the two important questions of law raised therein. | 0[ds]Thus, out of the four findings of the Tribunal against the appellant above set out, three relate to alleged corrupt practices and the fourth relates to the alleged wrongful rejection ofthere can be no doubt that the requirement of full particulars is of paramount importance, in cases of this kind as in cases of the ordinary courts based on allegations of fraud or undue influence. But unlike the one in the above decision of this Court relied upon, in which the question that arose was as to the validity of an order dismissing the entire election petition on the preliminary ground of absence of particulars, the question in this case is different. This is a case where notwithstanding the absence of particulars, the evidence was allowed to be given and taken. The question in such a case would not be one of absence of jurisdiction but as to whether there has been any material prejudice occasioned by the absence of particulars.It is in that light that the validity of the objection raised by the appellant in this behalf before us has to be judged. It is, therefore, necessary to scrutinise the nature of the evidence on which this finding had been arrived at and to see whether the appellant had a fair opportunity of meeting it. The finding is based upon the printed pamphlet, Ex. P-3, and on the evidence of P. Ws. 10, 11, 12 and 73. Ex. P-3 is a pamphlet which, as the election petition shows, was an enclosure to that petition itself, when filed before the Election Commission. The pamphlet itself purports to have been signed by three individuals, Sukh Sen Raj Gond, Thakur Din Raj Gond, Bharosa Raj Gond, and shows on the face of it Kumar Printing Works, Daraganj, Prayag, as the printers. P. W. 73 is the Proprietor of Kumar Printing Works. Itappears also from the record that on 5-1-1953, a number of interrogatories were served on the appellant on behalf of the election petitioners out of which the following may beactual recording of evidence commenced on the 13th April, 1953, subsequent to the exchange of these interrogatories and their answers. Since the finding with reference to this allegation is based, as above stated, on the pamphlet which is attached to the petition and on the evidence of witnesses whose names were specifically mentioned in the interrogatories, it is fairly clear that no prejudice would have been caused to the appellant by the non-furnishing of particulars in the very election petition itself. This objection, therefore, has no substance.10. That Ex. P-3 contains matter of the kind which would come within the scope of S. 123(2) of the Act has not been disputed. But it is urged that the evidence of the four witnesses relied upon is open to serious objections. This evidence is to the following effect.(1) The pamphlet Ex. P-3 was printed in the press of P. W. 73 with reference to a manuscript given to him by the appellant, Bhagwan Datt Shastri and another person, Joshi, both of whom placed the order with him for printing the pamphlets and that the original typed matter given to him contained the signature of the appellant and that the counter-foil No. 178-A of his bill-book related to the bill relating to this job work in his press.(2) Pamphlets of which Ex. P-3 was a specimen were distributed by red-capped Socialist Party workers in some villages of the constituency. The correctness of these findings has been seriously challenged. It was strenuously urged that the appellant was not given adequate opportunity to meet and rebut additional evidence taken from P. W. 73 at a later date with reference to an alleged mistake in his previous evidence as regards the date of the counter-foil above mentioned. We have been taken through the evidence relating to this alleged corrupt practice. It is enough to say that we are satisfied that there is no room for the grievance that adequate opportunity for rebutting the further evidence of P. W. 73 was not given. We are of the opinion that no sufficient reason is available for not accepting the conclusions of the Tribunal. The said conclusions are (1) that the pamphlet, Ex. P-3 was distributed within the constituency by some persons, (2) that this pamphlet was got printed by the appellant himself, inasmuch as it was he that placed the order along with another person, Joshi, with the Proprietor of the printing press, P. W. 73, and (3) that the original of the pamphlet bore the appellants signature when given to him for appellants signature when given to him for printing. On the facts so found, the Tribunal was justified in coming to the conclusion they did that the appellant must be taken to have been directly responsible for the distribution of these pamphlets and therefore for the commission of this item of corrupt practice. The further conclusion relating to this item that the distribution of pamphlet, Ex. P-3, was by Socialist Party Workers, who on the evidence in the case were in the position of agents for the appellant has been also seriously challenged both as a fact and in law. On the facts above found, this was not essential so far as this item is concerned and will be noticed with reference to the third item, since the conclusion in this behalf is based on evidence which is virtually common to all the threeis supported by the evidence of a large number of witnesses, viz., P. Ws. 28, 47, 48, 50, 51, 64, 66, 67, 73 and 75. P. W. 73 who has spoken to Ex. P-3 above noticed, has given exactly the same evidence as regards Ex. P-6 and that evidence has been accepted in toto by the Tribunal. The evidence of the other witnesses above mentioned which has been accepted by the Tribunal makes out distribution of this pamphlet within the constituency by the workers of the Socialist Party. The attack on this finding arrived at by the Tribunal is virtually the same as that which related to the evidence connected with the printing and distribution of Ex. P-3. That the last portion of Ex. P-6 falls within the prohibited category has not been disputed. As regards this item, there is no scope for the complaint that full particulars have not been furnished since the necessary particulars have all been set out in list D mentioned with reference to paragraph 13 of the petition. There is, therefore no room for any further challenge in regard to this item. In passing it may be noticed, that in so far as this is a minor corrupt practice, it does not depend upon any question of the act complained of being done by the candidate directly or by his agent or with their connivance. But it has been held by the Tribunal - and not challenged before us - that the matter in this pamphlet is also such as to fall within proviso (a)(i) and (ii) to S. 123(2) of the Act constituting a major corrupthas been seriously challenged before us. It falls within the scope of S. 123(6) of the Act, viz., the hiring or procuring of any vehicle for the conveyance of electors to or from any polling station. This item formed the subject of issue No. 6 before the Tribunal. The allegations are contained in paragraph 14 of the petition and the particulars were furnished in list E annexed thereto. The main item of allegation relating to this matter is that, in paragraph 2 of the list, viz., on the 11th January, 1952 (one of the polling dates) a motor truck belonging to Achutanand brought electors from the villages of Amalak and Jurmaniya to Alhua polling station (and that the electors were so brought) by Achutanand of village Dhera (and his co-workers). Evidence was given on behalf of the petitioners in the election petition that the voters were being carried from some of the villages in the constituency to the polling station in motor trucks and that those trucks were of Achutanand who stood as a candidate for the Socialist Party for the local Assembly seat of the same constituency, for which the poll took place simultaneously in the same pollingquestions as to the limits of the doctrine of agency in election matters and the exact scope and effect of the statutory definition of agent may require to be carefully considered by this Court when they become necessary in a proper case. These are important questions bearing on the whole structure of elections run on party lines and have not been adequately dealt with in this case. In the present case the finding arrived at by the Tribunal against the appellant in this behalf is based on clear evidence, which may properly form the basis of a positive finding of agency. It is necessary for this purpose to understand the system of the present elections of which evidence has been given by a number ofthis evidence it cannot be said that the Election Tribunal was not justified in holding that the carrying of the voters to the polling station in the trucks of Achutanand was with the connivance of the appellant who was a party candidate. That by itself would be enough to bring his case within S. 126(6) of the Act. It is not unreasonable to impute to the candidate the knowledge of the work done by his party in this area and to impute the consequent connivance on his part.This appears from the fact that the return of the election expenses of the appellant at page 78 of the printed record, shows the payment of some amount by the appellant to the Socialist Party for expenses and from the fact that the appellant on the very evidence of his own witnesses had no other independent workers of his own in this area. We are, therefore, satisfied that the finding of the Election Tribunal in this behalf is also well-grounded.14. It follows that in our opinion there is no reason for interfering with the findings of the Election Tribunal relating to the three alleged corrupt practices set out above. On these findings the result arrived at by the Tribunal that the election of the appellant should be set aside by virtue of S. 100 (2)(b) of the Act must be sustained.15. In this view it is unnecessary to deal with the findings of the Tribunal relating to the rejection of the nominations of Baboo Lal Udani, Deep Narain and Rajkishore Shukla and to consider the two important questions of law raised therein. | 0 | 5,835 | 1,950 | ### 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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within a mile from Alhoua. The motor truck used to stop near the polling booth in the school every time."P. W. 75 said -"I canvassed for Shri Achutanand who was Socialist candidate for Assembly and for Sri Bhagwan Dutt Shastri who was Socialist candidate for House of People. Shri Achutanand had got two motor trucks". Achutanand himself has been examined as R. W. 21. While he denied carrying or conveying voters in a motor truck to the polling station on the date of the poll, he admitted that his brother Anjani Kumar and another Bhayya who lived in his village had trucks which were in use during the election and attempted to explain that those trucks were possibly hired by the Government to carry ballot boxes. The Tribunal took all this evidence into consideration and came to a definite finding that motor trucks belonging to Achutanand were used on the polling date for the conveyance of electors to the polling booth. On the evidence, this finding cannot be seriously challenged. But what is strongly urged is that the connection of the use of those trucks with the prospects of the candidature of the appellant is not established and that, at any rate, the link of agency between the appellant and Achutanand along with his workers, who according to the evidence were responsible for the carrying of the voters to the polling booths has not at all been established. It is said that some theory of agency has been assumed on an erroneous view as to what constitutes agency for election purposes and it is urged that the assumption is erroneous in law. It is true that Election Courts have generally accepted a somewhat different standard of proof as regards the question of agency in election matters. It is to be noticed that in the Act the word "agent" has been defined in S. 79(a) as follows:" agent includes an election agent, a polling agent and a counting agent and any person who, on the trial of an election petition or of an offence with respect to any election, is held to have acted as an agent in connection with the election with the knowledge or consent of the candidate."The questions as to the limits of the doctrine of agency in election matters and the exact scope and effect of the statutory definition of agent may require to be carefully considered by this Court when they become necessary in a proper case. These are important questions bearing on the whole structure of elections run on party lines and have not been adequately dealt with in this case. In the present case the finding arrived at by the Tribunal against the appellant in this behalf is based on clear evidence, which may properly form the basis of a positive finding of agency. It is necessary for this purpose to understand the system of the present elections of which evidence has been given by a number of witnesses. R. W. 14 gives evidence as follows:"I have been a member of the Socialist Party since 1949. During the election I was General Secretary of the Mauganj Tehsil Socialist Party. At the time of elections I knew that Bhagwan Dutt Shastri was standing as Socialist candidate. Achutanand was one of the three candidates of the Socialist Party for the Assembly. I was one of those who were in charge of supervision of election campaign on behalf of the Socialist Party. Workers did not canvass for any candidate by name but they canvassed for the party candidates generally. Respondent No. 1 had no worker of his own in his individual capacity .......Ordinarily all expenses in connection with the election of party candidates were incurred out of the party fund."Another witness on behalf of the appellant, R. W. 18, said as follows:"I am acquainted with the workers of the Socialist Party in my constituency. ... They were working for the party candidate as such and not for any one individually. Shastriji was a candidate for the Socialist Party."Achutanand himself as R. W. 21 stated as follows:"In my constituency canvassing and propaganda used to be carried on party lines and not for any individual candidates. Respondent No. 1 had no worker or canvasser in my constituency. Respondent No. 1 got majority of votes because of the extensive propaganda carried on for the Socialist Party and its symbol banyan tree".13.On this evidence it cannot be said that the Election Tribunal was not justified in holding that the carrying of the voters to the polling station in the trucks of Achutanand was with the connivance of the appellant who was a party candidate. That by itself would be enough to bring his case within S. 126(6) of the Act. It is not unreasonable to impute to the candidate the knowledge of the work done by his party in this area and to impute the consequent connivance on his part.This appears from the fact that the return of the election expenses of the appellant at page 78 of the printed record, shows the payment of some amount by the appellant to the Socialist Party for expenses and from the fact that the appellant on the very evidence of his own witnesses had no other independent workers of his own in this area. We are, therefore, satisfied that the finding of the Election Tribunal in this behalf is also well-grounded.14. It follows that in our opinion there is no reason for interfering with the findings of the Election Tribunal relating to the three alleged corrupt practices set out above. On these findings the result arrived at by the Tribunal that the election of the appellant should be set aside by virtue of S. 100 (2)(b) of the Act must be sustained.15. In this view it is unnecessary to deal with the findings of the Tribunal relating to the rejection of the nominations of Baboo Lal Udani, Deep Narain and Rajkishore Shukla and to consider the two important questions of law raised therein.
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to him for printing. On the facts so found, the Tribunal was justified in coming to the conclusion they did that the appellant must be taken to have been directly responsible for the distribution of these pamphlets and therefore for the commission of this item of corrupt practice. The further conclusion relating to this item that the distribution of pamphlet, Ex. P-3, was by Socialist Party Workers, who on the evidence in the case were in the position of agents for the appellant has been also seriously challenged both as a fact and in law. On the facts above found, this was not essential so far as this item is concerned and will be noticed with reference to the third item, since the conclusion in this behalf is based on evidence which is virtually common to all the threeis supported by the evidence of a large number of witnesses, viz., P. Ws. 28, 47, 48, 50, 51, 64, 66, 67, 73 and 75. P. W. 73 who has spoken to Ex. P-3 above noticed, has given exactly the same evidence as regards Ex. P-6 and that evidence has been accepted in toto by the Tribunal. The evidence of the other witnesses above mentioned which has been accepted by the Tribunal makes out distribution of this pamphlet within the constituency by the workers of the Socialist Party. The attack on this finding arrived at by the Tribunal is virtually the same as that which related to the evidence connected with the printing and distribution of Ex. P-3. That the last portion of Ex. P-6 falls within the prohibited category has not been disputed. As regards this item, there is no scope for the complaint that full particulars have not been furnished since the necessary particulars have all been set out in list D mentioned with reference to paragraph 13 of the petition. There is, therefore no room for any further challenge in regard to this item. In passing it may be noticed, that in so far as this is a minor corrupt practice, it does not depend upon any question of the act complained of being done by the candidate directly or by his agent or with their connivance. But it has been held by the Tribunal - and not challenged before us - that the matter in this pamphlet is also such as to fall within proviso (a)(i) and (ii) to S. 123(2) of the Act constituting a major corrupthas been seriously challenged before us. It falls within the scope of S. 123(6) of the Act, viz., the hiring or procuring of any vehicle for the conveyance of electors to or from any polling station. This item formed the subject of issue No. 6 before the Tribunal. The allegations are contained in paragraph 14 of the petition and the particulars were furnished in list E annexed thereto. The main item of allegation relating to this matter is that, in paragraph 2 of the list, viz., on the 11th January, 1952 (one of the polling dates) a motor truck belonging to Achutanand brought electors from the villages of Amalak and Jurmaniya to Alhua polling station (and that the electors were so brought) by Achutanand of village Dhera (and his co-workers). Evidence was given on behalf of the petitioners in the election petition that the voters were being carried from some of the villages in the constituency to the polling station in motor trucks and that those trucks were of Achutanand who stood as a candidate for the Socialist Party for the local Assembly seat of the same constituency, for which the poll took place simultaneously in the same pollingquestions as to the limits of the doctrine of agency in election matters and the exact scope and effect of the statutory definition of agent may require to be carefully considered by this Court when they become necessary in a proper case. These are important questions bearing on the whole structure of elections run on party lines and have not been adequately dealt with in this case. In the present case the finding arrived at by the Tribunal against the appellant in this behalf is based on clear evidence, which may properly form the basis of a positive finding of agency. It is necessary for this purpose to understand the system of the present elections of which evidence has been given by a number ofthis evidence it cannot be said that the Election Tribunal was not justified in holding that the carrying of the voters to the polling station in the trucks of Achutanand was with the connivance of the appellant who was a party candidate. That by itself would be enough to bring his case within S. 126(6) of the Act. It is not unreasonable to impute to the candidate the knowledge of the work done by his party in this area and to impute the consequent connivance on his part.This appears from the fact that the return of the election expenses of the appellant at page 78 of the printed record, shows the payment of some amount by the appellant to the Socialist Party for expenses and from the fact that the appellant on the very evidence of his own witnesses had no other independent workers of his own in this area. We are, therefore, satisfied that the finding of the Election Tribunal in this behalf is also well-grounded.14. It follows that in our opinion there is no reason for interfering with the findings of the Election Tribunal relating to the three alleged corrupt practices set out above. On these findings the result arrived at by the Tribunal that the election of the appellant should be set aside by virtue of S. 100 (2)(b) of the Act must be sustained.15. In this view it is unnecessary to deal with the findings of the Tribunal relating to the rejection of the nominations of Baboo Lal Udani, Deep Narain and Rajkishore Shukla and to consider the two important questions of law raised therein.
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Sardar Hussain & Anr Vs. State Of Uttar Pradesh | iv) identification of the clothes with which the dead body was found. 7. We will first examine whether the motive which is of course relevant in this case has been satisfactorily established. Ex. Ka. 12 is the sale deed by which the properties belonging to Islam were said to have been sold to the wife of Sardar Hussain appellant No. (1). Usman Ali (PW 11) who is the scribe of the sale deed has deposed to its contents. He has stated that one Sarfaraz (PW 20) along with the accused came to him with a request to draft the sale deed. They gave the particulars. He has written the sale deed of which the executant was Islam. In the Court, he has identified Ahsan (PW 12) as the person who impersonated Islam and put his thumb impression. He has also identified Zakir Ali-appellant No. (2) who affixed his thumb impression to the sale deed as a witness. But when Sarfaraz Hussain was examined as PW 20 in the Court nothing was elicited about the sale deed or the persons who accompanied him to PW 11. No question was put to him as to the contents of sale deed Ex. Ka. 12 or to the identification of persons who affixed the thumb impressions thereon. PW 12 has, no doubt deposed that he had put his thumb impression on Ex. Ka. 12. But the prosecution has not sent the thumb impression of the executant of Ex. Ka. 12 with the admitted thumb impression of PW 12 for expert opinion. There is, therefore, no satisfactory evidence that the sale deed Ex. Ka. 12 was executed by somebody impersonating Islam. 8. As to identification of the dead body, the evidence on record is equally unsatisfactory. Shabbir (PW 1) has deposed that about 14 months before, Islam was taken by Sardar Hussain and Yasin. Yasin is the father-in-law of Sardar Hussain. He has also stated when Islam went with them, he was wearing a shirt of green check and a black striped tahmad. Islam was taken on the pretext that they would get him married. He has further stated that Mian Jan (PW 2) and Sadiq (PW 3) and one other person called Majid had seen Islam going with the Sardar Hussain and Yasin. But Mian Jan (PW 2) and Sadiq (PW 3) did not speak anything about the dress which Islam was wearing when he was taken by Sardar Hussain and Yasin. Secondly, how could Shabbir see all that he had stated. Islam and Shabbir were living separately. Islam was not taken after a meeting with Shabbir. It is not the case of Shabbir that Islam came to him and told him about the purpose of his going with the accused. If the purpose was to get Islam married, why did he allow Islam to go with the accused. Islam had by then parted company with them at the instance of Shabbir and mother, because they were of bad character. Is it understandable that such bad characters should arrange the marriage without the assistance or approval of Shabbir and mother ? It is difficult to believe Shabbir in the circumstances. 9. Islam was said to have disappeared on 12 April 1971. PW 1 lodged the report on 21 April 1971. The dead body was recovered on 18 July, 1971. The post-mortem was done on 20 July 1971. It was more than three months from the date of alleged disappearance of Islam. Dr. D. P. Manchanda (CW 1) who conducted the post-mortem was not able to give the cause of death. He has stated that it was a skeleton of a young adult male. According to him, it would be difficult to tell correctly as to when the death of the deceased had taken place. There was no flesh left in the body. The eye-balls were missing. The Vertabrae was not found attached to the skull. With this condition of the skeleton the Doctor could not have given any better opinion. 10. Gulab Singh (PW 7) is a Panch witness for the recovery of the dead body. He has deposed that when the body was removed, the tahmad and shirt were intact and they were taken out by Sub-Inspector. Man Singh (PW 8) is another Panch witness. He has also stated that the shirt and tahmad were removed by the Sub-Inspector, washed, packed and sealed. The Panch witnesses could not identify the shirt and tahmad as belonging to the deceased. 11. That clothes are said to have been identified by Shabbir and his wife Smt. Bhoori (PW 13). The identification was conducted by Ramakant Dube (PW 9). He had mixed up the said clothes with five like clothes resembling with each other. He has stated that Shabbir and Smt. Bhoori correctly identified them and did not commit any mistake. But if one carefully peruses his evidence, the identification was nothing but farce. The dead body was not recovered in the presence of Shabbir. He was called to the Court of the Magistrate only for the identification of the clothes and the body. He has stated that the dead body by appearance looked like that of his brother. We have earlier seen that the Sub-Inspector had removed the clothes, washed dried and packed them separately with the seal of the panchas. Shabbir could not have seen the dead body with the clothes. The shirt (Ex. 1) and tahmad (Ex. 2) were no doubt mixed up with other similar clothes for the purpose of identification as deposed by PW 9. But the witness identified Ex. 1 because there was paper chit pasted on it. He identified Ex. 2 because it had a knot. That is why we said earlier that the identification was a farce. We are surprised that the Courts below should rely upon this kind of evidence. The circumstantial evidence in the case thus falls short of the required standard on all material particulars. We are, therefore, unable to sustain the conviction of the appellants. | 1[ds]9. Islam was said to have disappeared on 12 April 1971. PW 1 lodged the report on 21 April 1971. The dead body was recovered on 18 July, 1971. Thewas done on 20 July 1971. It was more than three months from the date of alleged disappearance of Islam. Dr. D. P. Manchanda (CW 1) who conducted thewas not able to give the cause of death. He has stated that it was a skeleton of a young adult male. According to him, it would be difficult to tell correctly as to when the death of the deceased had taken place. There was no flesh left in the body. Thewere missing. The Vertabrae was not found attached to the skull. With this condition of the skeleton the Doctor could not have given any betterGulab Singh (PW 7) is a Panch witness for the recovery of the dead body. He has deposed that when the body was removed, the tahmad and shirt were intact and they were taken out byMan Singh (PW 8) is another Panch witness. He has also stated that the shirt and tahmad were removed by thewashed, packed and sealed. The Panch witnesses could not identify the shirt and tahmad as belonging to theThat clothes are said to have been identified by Shabbir and his wife Smt. Bhoori (PW 13). The identification was conducted by Ramakant Dube (PW 9). He had mixed up the said clothes with five like clothes resembling with each other. He has stated that Shabbir and Smt. Bhoori correctly identified them and did not commit any mistake. But if one carefully peruses his evidence, the identification was nothing but farce. The dead body was not recovered in the presence of Shabbir. He was called to the Court of the Magistrate only for the identification of the clothes and the body. He has stated that the dead body by appearance looked like that of his brother. We have earlier seen that thehad removed the clothes, washed dried and packed them separately with the seal of the panchas. Shabbir could not have seen the dead body with the clothes. The shirt (Ex. 1) and tahmad (Ex. 2) were no doubt mixed up with other similar clothes for the purpose of identification as deposed by PW 9. But the witness identified Ex. 1 because there was paper chit pasted on it. He identified Ex. 2 because it had a knot. That is why we said earlier that the identification was a farce. We are surprised that the Courts below should rely upon this kind of evidence. The circumstantial evidence in the case thus falls short of the required standard on all material particulars. We are, therefore, unable to sustain the conviction of the appellants | 1 | 1,578 | 519 | ### 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:
iv) identification of the clothes with which the dead body was found. 7. We will first examine whether the motive which is of course relevant in this case has been satisfactorily established. Ex. Ka. 12 is the sale deed by which the properties belonging to Islam were said to have been sold to the wife of Sardar Hussain appellant No. (1). Usman Ali (PW 11) who is the scribe of the sale deed has deposed to its contents. He has stated that one Sarfaraz (PW 20) along with the accused came to him with a request to draft the sale deed. They gave the particulars. He has written the sale deed of which the executant was Islam. In the Court, he has identified Ahsan (PW 12) as the person who impersonated Islam and put his thumb impression. He has also identified Zakir Ali-appellant No. (2) who affixed his thumb impression to the sale deed as a witness. But when Sarfaraz Hussain was examined as PW 20 in the Court nothing was elicited about the sale deed or the persons who accompanied him to PW 11. No question was put to him as to the contents of sale deed Ex. Ka. 12 or to the identification of persons who affixed the thumb impressions thereon. PW 12 has, no doubt deposed that he had put his thumb impression on Ex. Ka. 12. But the prosecution has not sent the thumb impression of the executant of Ex. Ka. 12 with the admitted thumb impression of PW 12 for expert opinion. There is, therefore, no satisfactory evidence that the sale deed Ex. Ka. 12 was executed by somebody impersonating Islam. 8. As to identification of the dead body, the evidence on record is equally unsatisfactory. Shabbir (PW 1) has deposed that about 14 months before, Islam was taken by Sardar Hussain and Yasin. Yasin is the father-in-law of Sardar Hussain. He has also stated when Islam went with them, he was wearing a shirt of green check and a black striped tahmad. Islam was taken on the pretext that they would get him married. He has further stated that Mian Jan (PW 2) and Sadiq (PW 3) and one other person called Majid had seen Islam going with the Sardar Hussain and Yasin. But Mian Jan (PW 2) and Sadiq (PW 3) did not speak anything about the dress which Islam was wearing when he was taken by Sardar Hussain and Yasin. Secondly, how could Shabbir see all that he had stated. Islam and Shabbir were living separately. Islam was not taken after a meeting with Shabbir. It is not the case of Shabbir that Islam came to him and told him about the purpose of his going with the accused. If the purpose was to get Islam married, why did he allow Islam to go with the accused. Islam had by then parted company with them at the instance of Shabbir and mother, because they were of bad character. Is it understandable that such bad characters should arrange the marriage without the assistance or approval of Shabbir and mother ? It is difficult to believe Shabbir in the circumstances. 9. Islam was said to have disappeared on 12 April 1971. PW 1 lodged the report on 21 April 1971. The dead body was recovered on 18 July, 1971. The post-mortem was done on 20 July 1971. It was more than three months from the date of alleged disappearance of Islam. Dr. D. P. Manchanda (CW 1) who conducted the post-mortem was not able to give the cause of death. He has stated that it was a skeleton of a young adult male. According to him, it would be difficult to tell correctly as to when the death of the deceased had taken place. There was no flesh left in the body. The eye-balls were missing. The Vertabrae was not found attached to the skull. With this condition of the skeleton the Doctor could not have given any better opinion. 10. Gulab Singh (PW 7) is a Panch witness for the recovery of the dead body. He has deposed that when the body was removed, the tahmad and shirt were intact and they were taken out by Sub-Inspector. Man Singh (PW 8) is another Panch witness. He has also stated that the shirt and tahmad were removed by the Sub-Inspector, washed, packed and sealed. The Panch witnesses could not identify the shirt and tahmad as belonging to the deceased. 11. That clothes are said to have been identified by Shabbir and his wife Smt. Bhoori (PW 13). The identification was conducted by Ramakant Dube (PW 9). He had mixed up the said clothes with five like clothes resembling with each other. He has stated that Shabbir and Smt. Bhoori correctly identified them and did not commit any mistake. But if one carefully peruses his evidence, the identification was nothing but farce. The dead body was not recovered in the presence of Shabbir. He was called to the Court of the Magistrate only for the identification of the clothes and the body. He has stated that the dead body by appearance looked like that of his brother. We have earlier seen that the Sub-Inspector had removed the clothes, washed dried and packed them separately with the seal of the panchas. Shabbir could not have seen the dead body with the clothes. The shirt (Ex. 1) and tahmad (Ex. 2) were no doubt mixed up with other similar clothes for the purpose of identification as deposed by PW 9. But the witness identified Ex. 1 because there was paper chit pasted on it. He identified Ex. 2 because it had a knot. That is why we said earlier that the identification was a farce. We are surprised that the Courts below should rely upon this kind of evidence. The circumstantial evidence in the case thus falls short of the required standard on all material particulars. We are, therefore, unable to sustain the conviction of the appellants.
### Response:
1
### Explanation:
9. Islam was said to have disappeared on 12 April 1971. PW 1 lodged the report on 21 April 1971. The dead body was recovered on 18 July, 1971. Thewas done on 20 July 1971. It was more than three months from the date of alleged disappearance of Islam. Dr. D. P. Manchanda (CW 1) who conducted thewas not able to give the cause of death. He has stated that it was a skeleton of a young adult male. According to him, it would be difficult to tell correctly as to when the death of the deceased had taken place. There was no flesh left in the body. Thewere missing. The Vertabrae was not found attached to the skull. With this condition of the skeleton the Doctor could not have given any betterGulab Singh (PW 7) is a Panch witness for the recovery of the dead body. He has deposed that when the body was removed, the tahmad and shirt were intact and they were taken out byMan Singh (PW 8) is another Panch witness. He has also stated that the shirt and tahmad were removed by thewashed, packed and sealed. The Panch witnesses could not identify the shirt and tahmad as belonging to theThat clothes are said to have been identified by Shabbir and his wife Smt. Bhoori (PW 13). The identification was conducted by Ramakant Dube (PW 9). He had mixed up the said clothes with five like clothes resembling with each other. He has stated that Shabbir and Smt. Bhoori correctly identified them and did not commit any mistake. But if one carefully peruses his evidence, the identification was nothing but farce. The dead body was not recovered in the presence of Shabbir. He was called to the Court of the Magistrate only for the identification of the clothes and the body. He has stated that the dead body by appearance looked like that of his brother. We have earlier seen that thehad removed the clothes, washed dried and packed them separately with the seal of the panchas. Shabbir could not have seen the dead body with the clothes. The shirt (Ex. 1) and tahmad (Ex. 2) were no doubt mixed up with other similar clothes for the purpose of identification as deposed by PW 9. But the witness identified Ex. 1 because there was paper chit pasted on it. He identified Ex. 2 because it had a knot. That is why we said earlier that the identification was a farce. We are surprised that the Courts below should rely upon this kind of evidence. The circumstantial evidence in the case thus falls short of the required standard on all material particulars. We are, therefore, unable to sustain the conviction of the appellants
|
Commissioner of Income Tax Kolkata-III Vs. Alom Extrusions Limited | should not sit on the collected contributions and deprive the workmen of the rightful benefits under Social Welfare legislations by delaying payment of contributions to the welfare funds. However, as stated above, the second proviso resulted in implementation problems, which have been mentioned hereinabove, and which resulted in the enactment of Finance Act, 2003, deleting the second proviso and bringing about uniformity in the first proviso by equating tax, duty, cess and fee with contributions to welfare funds. Once this uniformity is brought about in the first proviso, then, in our view, the Finance Act, 2003, which is made applicable by the Parliament only with effect from 1st April, 2004, would become curative in nature, hence, it would apply retrospectively with effect from 1st April, 1988. Secondly, it may be noted that, in the case of Allied Motors (P) Limited vs. Commissioner of Income Tax, reported in [1997] 224 I.T.R.677, the Scheme of Section 43-B of the Act came to be examined. In that case, the question which arose for determination was, whether sales tax collected by the assessee and paid after the end of the relevant previous year but within the time allowed under the relevant Sales Tax law should be disallowed under Section 43-B of the Act while computing the business income of the previous year? That was a case which related to Assessment Year 1984-1985. The relevant accounting period ended on June 30, 1983. The Income Tax Officer disallowed the deduction claimed by the assessee which was on account of sales tax collected by the assessee for the last quarter of the relevant accounting year. The deduction was disallowed under Section 43-B which, as stated above, was inserted with effect from 1st April, 1984. It is also relevant to note that the first proviso which came into force with effect from 1st April, 1988 was not on the statute book when the assessments were made in the case of Allied Motors (P) Limited (supra). However, the assessee contended that even though the first proviso came to be inserted with effect from 1st April, 1988, it was entitled to the benefit of that proviso because it operated retrospectively from 1st April, 1984, when Section 43-B stood inserted. This is how the question of retrospectivity arose in Allied Motors (P) Limited (supra). This Court, in Allied Motors (P) Limited (supra) held that when a proviso is inserted to remedy unintended consequences and to make the section workable, a proviso which supplies an obvious omission in the section and which proviso is required to be read into the section to give the section a reasonable interpretation, it could be read retrospective in operation, particularly to give effect to the section as a whole. Accordingly, this Court, in Allied Motors (P) Limited (supra), held that the first proviso was curative in nature, hence, retrospective in operation with effect from 1st April, 1988. It is important to note once again that, by Finance Act, 2003, not only the second proviso is deleted but even the first proviso is sought to be amended by bringing about an uniformity in tax, duty, cess and fee on the one hand vis-a-vis contributions to welfare funds of employee(s) on the other. This is one more reason why we hold that the Finance Act, 2003, is retrospective in operation. Moreover, the judgment in Allied Motors (P) Limited (supra) is delivered by a Bench of three learned Judges, which is binding on us. Accordingly, we hold that Finance Act, 2003, will operate retrospectively with effect from 1st April, 1988 [when the first proviso stood inserted]. Lastly, we may point out the hardship and the invidious discrimination which would be caused to the assessee(s) if the contention of the Department is to be accepted that Finance Act, 2003, to the above extent, operated prospectively. Take an example - in the present case, the respondents have deposited the contributions with the R.P.F.C. after 31st March [end of accounting year] but before filing of the Returns under the Income Tax Act and the date of payment falls after the due date under the Employees Provident Fund Act, they will be denied deduction for all times. In view of the second proviso, which stood on the statute book at the relevant time, each of such assessee(s) would not be entitled to deduction under Section 43-B of the Act for all times. They would lose the benefit of deduction even in the year of account in which they pay the contributions to the welfare funds, whereas a defaulter, who fails to pay the contribution to the welfare fund right upto 1st April, 2004, and who pays the contribution after 1st April, 2004, would get the benefit of deduction under Section 43-B of the Act. In our view, therefore, Finance Act, 2003, to the extent indicated above, should be read as retrospective. It would, therefore, operate from 1st April, 1988, when the first proviso was introduced. It is true that the Parliament has explicitly stated that Finance Act, 2003, will operate with effect from 1st April, 2004. However, the matter before us involves the principle of construction to be placed on the provisions of Finance Act, 2003. Before concluding, we extract hereinbelow the relevant observations of this Court in the case of Commissioner of Income Tax, Bangalore vs. J.H. Gotla, reported in [1985] 156 I.T.R. 323, which reads as under: "We should find out the intention from the language used by the Legislature and if strict literal construction leads to an absurd result, i.e., a result not intended to be subserved by the object of the legislation found in the manner indicated before, then if another construction is possible apart from strict literal construction, then that construction should be preferred to the strict literal construction. Though equity and taxation are often strangers, attempts should be made that these do not remain always so and if a construction results in equity rather than in injustice, then such construction should be preferred to the literal construction." | 0[ds]We find no merit in these civil appeals filed by the Department for the following reasons: firstly, as stated above, Section 43-B [main section], which stood inserted by Finance Act, 1983, with effect from 1st April, 1984, expressly commences with a non-obstante clause, the underlying object being to disallow deductions claimed merely by making a Book entry based on Merchantile System of Accounting. At the same time, Section 43-B [main section] made it mandatory for the Department to grant deduction in computing the income under Section 28 in the year in which tax, duty, cess, etc., is actually paid. However, Parliament took cognizance of the fact that accounting year of a company did not always tally with the due dates under the Provident Fund Act, Municipal Corporation Act [octroi] and other Tax laws. Therefore, by way of first proviso, an incentive/relaxation was sought to be given in respect of tax, duty, cess or fee by explicitly stating that if such tax, duty, cess or fee is paid before the date of filing of the Return under the Income Tax Act [due date], the assessee(s) then would be entitled to deduction. However, this relaxation/incentive was restricted only to tax, duty, cess and fee. It did not apply to contributions to labour welfare funds. The reason appears to be that the employer(s) should not sit on the collected contributions and deprive the workmen of the rightful benefits under Social Welfare legislations by delaying payment of contributions to the welfare funds. However, as stated above, the second proviso resulted in implementation problems, which have been mentioned hereinabove, and which resulted in the enactment of Finance Act, 2003, deleting the second proviso and bringing about uniformity in the first proviso by equating tax, duty, cess and fee with contributions to welfare funds. Once this uniformity is brought about in the first proviso, then, in our view, the Finance Act, 2003, which is made applicable by the Parliament only with effect from 1st April, 2004, would become curative in nature, hence, it would apply retrospectively with effect from 1st April, 1988. Secondly, it may be noted that, in the case of Allied Motors (P) Limited vs. Commissioner of Income Tax, reported in [1997] 224 I.T.R.677, the Scheme of Section 43-B of the Act came to be examined. In that case, the question which arose for determination was, whether sales tax collected by the assessee and paid after the end of the relevant previous year but within the time allowed under the relevant Sales Tax law should be disallowed under Section 43-B of the Act while computing the business income of the previous year? That was a case which related to Assessment Year 1984-1985. The relevant accounting period ended on June 30, 1983. The Income Tax Officer disallowed the deduction claimed by the assessee which was on account of sales tax collected by the assessee for the last quarter of the relevant accounting year. The deduction was disallowed under Section 43-B which, as stated above, was inserted with effect from 1st April, 1984. It is also relevant to note that the first proviso which came into force with effect from 1st April, 1988 was not on the statute book when the assessments were made in the case of Allied Motors (P) Limited (supra). However, the assessee contended that even though the first proviso came to be inserted with effect from 1st April, 1988, it was entitled to the benefit of that proviso because it operated retrospectively from 1st April, 1984, when Section 43-B stood inserted. This is how the question of retrospectivity arose in Allied Motors (P) Limited (supra). This Court, in Allied Motors (P) Limited (supra) held that when a proviso is inserted to remedy unintended consequences and to make the section workable, a proviso which supplies an obvious omission in the section and which proviso is required to be read into the section to give the section a reasonable interpretation, it could be read retrospective in operation, particularly to give effect to the section as a whole. Accordingly, this Court, in Allied Motors (P) Limited (supra), held that the first proviso was curative in nature, hence, retrospective in operation with effect from 1st April, 1988. It is important to note once again that, by Finance Act, 2003, not only the second proviso is deleted but even the first proviso is sought to be amended by bringing about an uniformity in tax, duty, cess and fee on the one hand vis-a-vis contributions to welfare funds of employee(s) on the other. This is one more reason why we hold that the Finance Act, 2003, is retrospective in operation. Moreover, the judgment in Allied Motors (P) Limited (supra) is delivered by a Bench of three learned Judges, which is binding on us. Accordingly, we hold that Finance Act, 2003, will operate retrospectively with effect from 1st April, 1988 [when the first proviso stood inserted]. Lastly, we may point out the hardship and the invidious discrimination which would be caused to the assessee(s) if the contention of the Department is to be accepted that Finance Act, 2003, to the above extent, operated prospectively. Take an example - in the present case, the respondents have deposited the contributions with the R.P.F.C. after 31st March [end of accounting year] but before filing of the Returns under the Income Tax Act and the date of payment falls after the due date under the Employees Provident Fund Act, they will be denied deduction for all times. In view of the second proviso, which stood on the statute book at the relevant time, each of such assessee(s) would not be entitled to deduction under Section 43-B of the Act for all times. They would lose the benefit of deduction even in the year of account in which they pay the contributions to the welfare funds, whereas a defaulter, who fails to pay the contribution to the welfare fund right upto 1st April, 2004, and who pays the contribution after 1st April, 2004, would get the benefit of deduction under Section 43-B of the Act. In our view, therefore, Finance Act, 2003, to the extent indicated above, should be read as retrospective. It would, therefore, operate from 1st April, 1988, when the first proviso was introduced. It is true that the Parliament has explicitly stated that Finance Act, 2003, will operate with effect from 1st April, 2004. However, the matter before us involves the principle of construction to be placed on the provisions of Finance Act, 2003Before concluding, we extract hereinbelow the relevant observations of this Court in the case of Commissioner of Income Tax, Bangalore vs. J.H. Gotla, reported in [1985] 156 I.T.R. 323, which reads as under:"We should find out the intention from the language used by the Legislature and if strict literal construction leads to an absurd result, i.e., a result not intended to be subserved by the object of the legislation found in the manner indicated before, then if another construction is possible apart from strict literal construction, then that construction should be preferred to the strict literal construction. Though equity and taxation are often strangers, attempts should be made that these do not remain always so and if a construction results in equity rather than in injustice, then such construction should be preferred to the literal construction." | 0 | 3,718 | 1,436 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
should not sit on the collected contributions and deprive the workmen of the rightful benefits under Social Welfare legislations by delaying payment of contributions to the welfare funds. However, as stated above, the second proviso resulted in implementation problems, which have been mentioned hereinabove, and which resulted in the enactment of Finance Act, 2003, deleting the second proviso and bringing about uniformity in the first proviso by equating tax, duty, cess and fee with contributions to welfare funds. Once this uniformity is brought about in the first proviso, then, in our view, the Finance Act, 2003, which is made applicable by the Parliament only with effect from 1st April, 2004, would become curative in nature, hence, it would apply retrospectively with effect from 1st April, 1988. Secondly, it may be noted that, in the case of Allied Motors (P) Limited vs. Commissioner of Income Tax, reported in [1997] 224 I.T.R.677, the Scheme of Section 43-B of the Act came to be examined. In that case, the question which arose for determination was, whether sales tax collected by the assessee and paid after the end of the relevant previous year but within the time allowed under the relevant Sales Tax law should be disallowed under Section 43-B of the Act while computing the business income of the previous year? That was a case which related to Assessment Year 1984-1985. The relevant accounting period ended on June 30, 1983. The Income Tax Officer disallowed the deduction claimed by the assessee which was on account of sales tax collected by the assessee for the last quarter of the relevant accounting year. The deduction was disallowed under Section 43-B which, as stated above, was inserted with effect from 1st April, 1984. It is also relevant to note that the first proviso which came into force with effect from 1st April, 1988 was not on the statute book when the assessments were made in the case of Allied Motors (P) Limited (supra). However, the assessee contended that even though the first proviso came to be inserted with effect from 1st April, 1988, it was entitled to the benefit of that proviso because it operated retrospectively from 1st April, 1984, when Section 43-B stood inserted. This is how the question of retrospectivity arose in Allied Motors (P) Limited (supra). This Court, in Allied Motors (P) Limited (supra) held that when a proviso is inserted to remedy unintended consequences and to make the section workable, a proviso which supplies an obvious omission in the section and which proviso is required to be read into the section to give the section a reasonable interpretation, it could be read retrospective in operation, particularly to give effect to the section as a whole. Accordingly, this Court, in Allied Motors (P) Limited (supra), held that the first proviso was curative in nature, hence, retrospective in operation with effect from 1st April, 1988. It is important to note once again that, by Finance Act, 2003, not only the second proviso is deleted but even the first proviso is sought to be amended by bringing about an uniformity in tax, duty, cess and fee on the one hand vis-a-vis contributions to welfare funds of employee(s) on the other. This is one more reason why we hold that the Finance Act, 2003, is retrospective in operation. Moreover, the judgment in Allied Motors (P) Limited (supra) is delivered by a Bench of three learned Judges, which is binding on us. Accordingly, we hold that Finance Act, 2003, will operate retrospectively with effect from 1st April, 1988 [when the first proviso stood inserted]. Lastly, we may point out the hardship and the invidious discrimination which would be caused to the assessee(s) if the contention of the Department is to be accepted that Finance Act, 2003, to the above extent, operated prospectively. Take an example - in the present case, the respondents have deposited the contributions with the R.P.F.C. after 31st March [end of accounting year] but before filing of the Returns under the Income Tax Act and the date of payment falls after the due date under the Employees Provident Fund Act, they will be denied deduction for all times. In view of the second proviso, which stood on the statute book at the relevant time, each of such assessee(s) would not be entitled to deduction under Section 43-B of the Act for all times. They would lose the benefit of deduction even in the year of account in which they pay the contributions to the welfare funds, whereas a defaulter, who fails to pay the contribution to the welfare fund right upto 1st April, 2004, and who pays the contribution after 1st April, 2004, would get the benefit of deduction under Section 43-B of the Act. In our view, therefore, Finance Act, 2003, to the extent indicated above, should be read as retrospective. It would, therefore, operate from 1st April, 1988, when the first proviso was introduced. It is true that the Parliament has explicitly stated that Finance Act, 2003, will operate with effect from 1st April, 2004. However, the matter before us involves the principle of construction to be placed on the provisions of Finance Act, 2003. Before concluding, we extract hereinbelow the relevant observations of this Court in the case of Commissioner of Income Tax, Bangalore vs. J.H. Gotla, reported in [1985] 156 I.T.R. 323, which reads as under: "We should find out the intention from the language used by the Legislature and if strict literal construction leads to an absurd result, i.e., a result not intended to be subserved by the object of the legislation found in the manner indicated before, then if another construction is possible apart from strict literal construction, then that construction should be preferred to the strict literal construction. Though equity and taxation are often strangers, attempts should be made that these do not remain always so and if a construction results in equity rather than in injustice, then such construction should be preferred to the literal construction."
### Response:
0
### Explanation:
the employer(s) should not sit on the collected contributions and deprive the workmen of the rightful benefits under Social Welfare legislations by delaying payment of contributions to the welfare funds. However, as stated above, the second proviso resulted in implementation problems, which have been mentioned hereinabove, and which resulted in the enactment of Finance Act, 2003, deleting the second proviso and bringing about uniformity in the first proviso by equating tax, duty, cess and fee with contributions to welfare funds. Once this uniformity is brought about in the first proviso, then, in our view, the Finance Act, 2003, which is made applicable by the Parliament only with effect from 1st April, 2004, would become curative in nature, hence, it would apply retrospectively with effect from 1st April, 1988. Secondly, it may be noted that, in the case of Allied Motors (P) Limited vs. Commissioner of Income Tax, reported in [1997] 224 I.T.R.677, the Scheme of Section 43-B of the Act came to be examined. In that case, the question which arose for determination was, whether sales tax collected by the assessee and paid after the end of the relevant previous year but within the time allowed under the relevant Sales Tax law should be disallowed under Section 43-B of the Act while computing the business income of the previous year? That was a case which related to Assessment Year 1984-1985. The relevant accounting period ended on June 30, 1983. The Income Tax Officer disallowed the deduction claimed by the assessee which was on account of sales tax collected by the assessee for the last quarter of the relevant accounting year. The deduction was disallowed under Section 43-B which, as stated above, was inserted with effect from 1st April, 1984. It is also relevant to note that the first proviso which came into force with effect from 1st April, 1988 was not on the statute book when the assessments were made in the case of Allied Motors (P) Limited (supra). However, the assessee contended that even though the first proviso came to be inserted with effect from 1st April, 1988, it was entitled to the benefit of that proviso because it operated retrospectively from 1st April, 1984, when Section 43-B stood inserted. This is how the question of retrospectivity arose in Allied Motors (P) Limited (supra). This Court, in Allied Motors (P) Limited (supra) held that when a proviso is inserted to remedy unintended consequences and to make the section workable, a proviso which supplies an obvious omission in the section and which proviso is required to be read into the section to give the section a reasonable interpretation, it could be read retrospective in operation, particularly to give effect to the section as a whole. Accordingly, this Court, in Allied Motors (P) Limited (supra), held that the first proviso was curative in nature, hence, retrospective in operation with effect from 1st April, 1988. It is important to note once again that, by Finance Act, 2003, not only the second proviso is deleted but even the first proviso is sought to be amended by bringing about an uniformity in tax, duty, cess and fee on the one hand vis-a-vis contributions to welfare funds of employee(s) on the other. This is one more reason why we hold that the Finance Act, 2003, is retrospective in operation. Moreover, the judgment in Allied Motors (P) Limited (supra) is delivered by a Bench of three learned Judges, which is binding on us. Accordingly, we hold that Finance Act, 2003, will operate retrospectively with effect from 1st April, 1988 [when the first proviso stood inserted]. Lastly, we may point out the hardship and the invidious discrimination which would be caused to the assessee(s) if the contention of the Department is to be accepted that Finance Act, 2003, to the above extent, operated prospectively. Take an example - in the present case, the respondents have deposited the contributions with the R.P.F.C. after 31st March [end of accounting year] but before filing of the Returns under the Income Tax Act and the date of payment falls after the due date under the Employees Provident Fund Act, they will be denied deduction for all times. In view of the second proviso, which stood on the statute book at the relevant time, each of such assessee(s) would not be entitled to deduction under Section 43-B of the Act for all times. They would lose the benefit of deduction even in the year of account in which they pay the contributions to the welfare funds, whereas a defaulter, who fails to pay the contribution to the welfare fund right upto 1st April, 2004, and who pays the contribution after 1st April, 2004, would get the benefit of deduction under Section 43-B of the Act. In our view, therefore, Finance Act, 2003, to the extent indicated above, should be read as retrospective. It would, therefore, operate from 1st April, 1988, when the first proviso was introduced. It is true that the Parliament has explicitly stated that Finance Act, 2003, will operate with effect from 1st April, 2004. However, the matter before us involves the principle of construction to be placed on the provisions of Finance Act, 2003Before concluding, we extract hereinbelow the relevant observations of this Court in the case of Commissioner of Income Tax, Bangalore vs. J.H. Gotla, reported in [1985] 156 I.T.R. 323, which reads as under:"We should find out the intention from the language used by the Legislature and if strict literal construction leads to an absurd result, i.e., a result not intended to be subserved by the object of the legislation found in the manner indicated before, then if another construction is possible apart from strict literal construction, then that construction should be preferred to the strict literal construction. Though equity and taxation are often strangers, attempts should be made that these do not remain always so and if a construction results in equity rather than in injustice, then such construction should be preferred to the literal construction."
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M/S. Novopan India Ltd Vs. Collector Of Central Excise & Customs | of a provision concerning exemptions. There is support of judicial opinion to the view that exemptions from taxation have a tendency to increase the burden on the other unexempted class of tax payers and should be construed against the subject in case of ambiguity. It is an equally well known principle that a person who claims an exemption has to establish his case. Indeed, in the very case of Parle Exports (P) Ltd. relied upon by Shri Narasimhamurty, it was observed : (SCC p. 357, para 17) While interpreting an exemption clause, liberal interpretation should be imparted to the language thereof, provided no violence is done to the language employed. It must, however, be borne in mind that absurd results of construction should be avoided. The choice between a strict and a liberal construction arises only in case of doubt in regard to the intention of the legislature manifest on the statutory language. Indeed, the need to resort to any interpretative process arises only where the meaning is not manifest on the plain words of the statute. If the words are plain and clear and directly convey the meaning, there is no need for any interpretation. It appears to us the true rule of construction of a provision as to exemption is the one stated by this Court in Union of India v. Wood Papers Ltd. : (SCC p. 260, para 4)Truly speaking liberal and strict construction of an exemption provision are to be invoked at different stages of interpreting it. When the question is whether a subject falls in the notification or in the exemption clause then it being in nature of exception is to be construed strictly and against the subject but once ambiguity or doubt about applicability is lifted and the subject falls in the notification then full play should be given to it and it calls for a wider and liberal construction...." 13. This was also the view expressed in IRC v. James Forrest where Lord Halsbury, L. C., observed : "All exemptions from taxation to some extent increase the burden on other members of the community... " and in Littman v. Barron (Inspector of Taxes), a decision of the Court of Appeal where Cohen, L. J., said "The principle that in case of ambiguity a taxing statute should be construed in favour of a tax payer does not apply to a provision giving a tax payer relief in certain cases from a section clearly imposing liability." 14. It is true that in some decisions a contrary view appears to have been expressed. In Caroline M. Armytage v. Frederick Wilkinson, a decision of the Privy Council, it was observed "Their Lordships have now to consider whether the decision of Mr Justice Molesworth upon the merits of the application to him is correct They must begin by expressing their dissent from the principle which seems to have influenced Mr Justice Molesworth in this and some of the earlier cases, viz., that the provisions of the 24th section, because they establish an exception to the general rule, are to be construed strictly against those who invoke their benefit. That principle is opposed to the rule expressed by Lord Ellenborough in Warrington v. Furbor, and followed and confirmed in Hobson v. Neale. Lord Ellenboroughs words areI think that when the subject is to be charged with a duty, the cases in which it is to attach ought to be fairly marked out, and we should give a liberal construction to words of exception confining the operation of the duty. It is only, however, in the event of there being a real difficulty in ascertaining the meaning of a particular enactment that the question of strictness or of liberality of construction need arise." 15. To the same effect is the view expressed by Sir Raymond Evershed in Routledge v. McKay. The learned Master of Rolls observed : "On the authorities, that exemption, as I understand, should be liberally interpreted." 16. We are, however, of the opinion that, on principle, the decision of this Court in Mangalore Chemicals - and in Union of India v. Wood Papers referred to therein - represents the correct view of law. The principle that in case of ambiguity, a taxing statute should be construed in favour of the assessee - assuming that the said principle is good and sound - does not apply to the construction of an exception or an exempting provision; they have to be construed strictly. A person invoking an exception or an exemption provision to relieve him of the tax liability must establish clearly that he is covered by the said provision. In case of doubt or ambiguity, benefit of it must go to the State. This is for the reason explained in Mangalore Chemicals and other decisions, viz., each such exception/exemption increases the tax burden on other members of the community correspondingly. Once, of course, the provision is found applicable to him, full effect must be given to it. As observed by a Constitution Bench of this Court in Hansraj Gordhandas v. H. H. Dave that such a notification has to be interpreted in the light of the words employed by it and not on any other basis. This was so held in the context of the principle that in a taxing statute, there is no room for any intendment, that regard must be had to the clear meaning of the words and that the matter should be governed wholly by the language of the notification, i. e., by the plain terms of the exemption 17. Applying the above principles, we must hold that the words "unveneered particle boards" in Item 6 of the table appended to the exemption notification cannot and do not take in melamine faced particle boards. Indeed, the learned counsel for the Revenue contends, and in our opinion rightly, that the said entry does not admit of any doubt, that it is clear and specific and that it covers only unveneered particle boards and nothing else | 0[ds]It is thus difficult to say that the melamine faced particle boards can be described as "unveneered particle boards". Nobody in the trade circles or in the market would consider both the products as one and the same. From whichever way one looks at them, they appear to be different products. As stated hereinbefore, even the process of manufacturing is different. It is not a case of mere processing of particle boards for giving it strength. It is a case of manufacturing an altogether different productOn the basis of the last sentence in the above extract, the learned counsel sought to contend that melamine faced particle board is the same as the particle board and that merely covering the particle boards withd paper, with a view to lend them strength and a smooth and attractive surface do not make MFPBs a different product. We do not think that the said description in Encyclopaedia is of any assistance in the matter of classification where the test is the one indicated hereinbefore, viz., whether they are commercially different goods. The Tribunal has held that they are not and no material has been brought to our notice to take a different viewSo far as Dr. Joseph, one of the experts is concerned, the Tribunal has pointed out, and rightly in our opinion, that he has been associated with they from the beginning, as admitted by the said person himself. The other person Shri A. C. Shekhar was also found to be associated with the. Both of them deposed before the Tribunal that they did not witness the process of manufacture nor were they able to comment upon the process of manufacture contained in the brochure referred to hereinabove. From a reading of their affidavits, the Tribunal concluded that they are not independent experts and that their affidavits were prepared with a view to bolster the appellants case in these proceedings. The said experts, the Tribunal observed, did not also try to support their opinions with reference to any technical literature or authority on the subject. For all the above reasons, the Tribunal declined to accept their bare assertion that MFPBs can be described as "unveneered particle boards". We cannot say that the reasons given by the Tribunal for rejecting the said affidavits are either irrelevant or unsustainable. The said affidavits, therefore, do not advance the appellants case in any manner14. It is true that in some decisions a contrary view appears to have been expressed16. We are, however, of the opinion that, on principle, the decision of this Court in Mangalore Chemicalsand in Union of India v. Wood Papers referred to thereinrepresents the correct view of law. The principle that in case of ambiguity, a taxing statute should be construed in favour of the assesseeassuming that the said principle is good and sounddoes not apply to the construction of an exception or an exempting provision; they have to be construed strictly. A person invoking an exception or an exemption provision to relieve him of the tax liability must establish clearly that he is covered by the said provision. In case of doubt or ambiguity, benefit of it must go to the State. This is for the reason explained in Mangalore Chemicals and other decisions, viz., each such exception/exemption increases the tax burden on other members of the community, of course, the provision is found applicable to him, full effect must be given to it. As observed by a Constitution Bench of this Court in Hansraj Gordhandas v. H. H. Dave that such a notification has to be interpreted in the light of the words employed by it and not on any other basis. This was so held in the context of the principle that in a taxing statute, there is no room for any intendment, that regard must be had to the clear meaning of the words and that the matter should be governed wholly by the language of the notification, i. e., by the plain terms of the exemption17. Applying the above principles, we must hold that the words "unveneered particle boards" in Item 6 of the table appended to the exemption notification cannot and do not take in melamine faced particle boards. Indeed, the learned counsel for the Revenue contends, and in our opinion rightly, that the said entry does not admit of any doubt, that it is clear and specific and that it covers only unveneered particle boards and nothing else | 0 | 3,408 | 815 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
of a provision concerning exemptions. There is support of judicial opinion to the view that exemptions from taxation have a tendency to increase the burden on the other unexempted class of tax payers and should be construed against the subject in case of ambiguity. It is an equally well known principle that a person who claims an exemption has to establish his case. Indeed, in the very case of Parle Exports (P) Ltd. relied upon by Shri Narasimhamurty, it was observed : (SCC p. 357, para 17) While interpreting an exemption clause, liberal interpretation should be imparted to the language thereof, provided no violence is done to the language employed. It must, however, be borne in mind that absurd results of construction should be avoided. The choice between a strict and a liberal construction arises only in case of doubt in regard to the intention of the legislature manifest on the statutory language. Indeed, the need to resort to any interpretative process arises only where the meaning is not manifest on the plain words of the statute. If the words are plain and clear and directly convey the meaning, there is no need for any interpretation. It appears to us the true rule of construction of a provision as to exemption is the one stated by this Court in Union of India v. Wood Papers Ltd. : (SCC p. 260, para 4)Truly speaking liberal and strict construction of an exemption provision are to be invoked at different stages of interpreting it. When the question is whether a subject falls in the notification or in the exemption clause then it being in nature of exception is to be construed strictly and against the subject but once ambiguity or doubt about applicability is lifted and the subject falls in the notification then full play should be given to it and it calls for a wider and liberal construction...." 13. This was also the view expressed in IRC v. James Forrest where Lord Halsbury, L. C., observed : "All exemptions from taxation to some extent increase the burden on other members of the community... " and in Littman v. Barron (Inspector of Taxes), a decision of the Court of Appeal where Cohen, L. J., said "The principle that in case of ambiguity a taxing statute should be construed in favour of a tax payer does not apply to a provision giving a tax payer relief in certain cases from a section clearly imposing liability." 14. It is true that in some decisions a contrary view appears to have been expressed. In Caroline M. Armytage v. Frederick Wilkinson, a decision of the Privy Council, it was observed "Their Lordships have now to consider whether the decision of Mr Justice Molesworth upon the merits of the application to him is correct They must begin by expressing their dissent from the principle which seems to have influenced Mr Justice Molesworth in this and some of the earlier cases, viz., that the provisions of the 24th section, because they establish an exception to the general rule, are to be construed strictly against those who invoke their benefit. That principle is opposed to the rule expressed by Lord Ellenborough in Warrington v. Furbor, and followed and confirmed in Hobson v. Neale. Lord Ellenboroughs words areI think that when the subject is to be charged with a duty, the cases in which it is to attach ought to be fairly marked out, and we should give a liberal construction to words of exception confining the operation of the duty. It is only, however, in the event of there being a real difficulty in ascertaining the meaning of a particular enactment that the question of strictness or of liberality of construction need arise." 15. To the same effect is the view expressed by Sir Raymond Evershed in Routledge v. McKay. The learned Master of Rolls observed : "On the authorities, that exemption, as I understand, should be liberally interpreted." 16. We are, however, of the opinion that, on principle, the decision of this Court in Mangalore Chemicals - and in Union of India v. Wood Papers referred to therein - represents the correct view of law. The principle that in case of ambiguity, a taxing statute should be construed in favour of the assessee - assuming that the said principle is good and sound - does not apply to the construction of an exception or an exempting provision; they have to be construed strictly. A person invoking an exception or an exemption provision to relieve him of the tax liability must establish clearly that he is covered by the said provision. In case of doubt or ambiguity, benefit of it must go to the State. This is for the reason explained in Mangalore Chemicals and other decisions, viz., each such exception/exemption increases the tax burden on other members of the community correspondingly. Once, of course, the provision is found applicable to him, full effect must be given to it. As observed by a Constitution Bench of this Court in Hansraj Gordhandas v. H. H. Dave that such a notification has to be interpreted in the light of the words employed by it and not on any other basis. This was so held in the context of the principle that in a taxing statute, there is no room for any intendment, that regard must be had to the clear meaning of the words and that the matter should be governed wholly by the language of the notification, i. e., by the plain terms of the exemption 17. Applying the above principles, we must hold that the words "unveneered particle boards" in Item 6 of the table appended to the exemption notification cannot and do not take in melamine faced particle boards. Indeed, the learned counsel for the Revenue contends, and in our opinion rightly, that the said entry does not admit of any doubt, that it is clear and specific and that it covers only unveneered particle boards and nothing else
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### Explanation:
It is thus difficult to say that the melamine faced particle boards can be described as "unveneered particle boards". Nobody in the trade circles or in the market would consider both the products as one and the same. From whichever way one looks at them, they appear to be different products. As stated hereinbefore, even the process of manufacturing is different. It is not a case of mere processing of particle boards for giving it strength. It is a case of manufacturing an altogether different productOn the basis of the last sentence in the above extract, the learned counsel sought to contend that melamine faced particle board is the same as the particle board and that merely covering the particle boards withd paper, with a view to lend them strength and a smooth and attractive surface do not make MFPBs a different product. We do not think that the said description in Encyclopaedia is of any assistance in the matter of classification where the test is the one indicated hereinbefore, viz., whether they are commercially different goods. The Tribunal has held that they are not and no material has been brought to our notice to take a different viewSo far as Dr. Joseph, one of the experts is concerned, the Tribunal has pointed out, and rightly in our opinion, that he has been associated with they from the beginning, as admitted by the said person himself. The other person Shri A. C. Shekhar was also found to be associated with the. Both of them deposed before the Tribunal that they did not witness the process of manufacture nor were they able to comment upon the process of manufacture contained in the brochure referred to hereinabove. From a reading of their affidavits, the Tribunal concluded that they are not independent experts and that their affidavits were prepared with a view to bolster the appellants case in these proceedings. The said experts, the Tribunal observed, did not also try to support their opinions with reference to any technical literature or authority on the subject. For all the above reasons, the Tribunal declined to accept their bare assertion that MFPBs can be described as "unveneered particle boards". We cannot say that the reasons given by the Tribunal for rejecting the said affidavits are either irrelevant or unsustainable. The said affidavits, therefore, do not advance the appellants case in any manner14. It is true that in some decisions a contrary view appears to have been expressed16. We are, however, of the opinion that, on principle, the decision of this Court in Mangalore Chemicalsand in Union of India v. Wood Papers referred to thereinrepresents the correct view of law. The principle that in case of ambiguity, a taxing statute should be construed in favour of the assesseeassuming that the said principle is good and sounddoes not apply to the construction of an exception or an exempting provision; they have to be construed strictly. A person invoking an exception or an exemption provision to relieve him of the tax liability must establish clearly that he is covered by the said provision. In case of doubt or ambiguity, benefit of it must go to the State. This is for the reason explained in Mangalore Chemicals and other decisions, viz., each such exception/exemption increases the tax burden on other members of the community, of course, the provision is found applicable to him, full effect must be given to it. As observed by a Constitution Bench of this Court in Hansraj Gordhandas v. H. H. Dave that such a notification has to be interpreted in the light of the words employed by it and not on any other basis. This was so held in the context of the principle that in a taxing statute, there is no room for any intendment, that regard must be had to the clear meaning of the words and that the matter should be governed wholly by the language of the notification, i. e., by the plain terms of the exemption17. Applying the above principles, we must hold that the words "unveneered particle boards" in Item 6 of the table appended to the exemption notification cannot and do not take in melamine faced particle boards. Indeed, the learned counsel for the Revenue contends, and in our opinion rightly, that the said entry does not admit of any doubt, that it is clear and specific and that it covers only unveneered particle boards and nothing else
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Indore Malwa United Mills Ltd Vs. The Commissioner Of Income-Tax(Central) Bombay | income received or deemed to be received in India even if it accrues elsewhere, or under clause (c) on income which accrues or arises or is deemed to accrue or arise in India even if it is received elsewhere. The liability to tax in respect of income received in India is common to both residents and non-residents and is imposed by the general clause (a). A non-resident, unlike a resident, is not chargeable in respect of income accruing or arising without India and not received in India. Section 14(2)(c), which is now deleted, had great importance when British India was distinct from Indian States, because it exempted income which accrued or was received in the Indian States but was not brought into British India, The deletion of this clause became inevitable upon the merger of the Indian States. This clause which was inserted in 1941 exempted income accruing or arising within the Indian States ; but the exemption did not apply if the income was received or deemed to be received in or was brought into the taxable territories in the previous year by or on behalf of the assessee or if the income was assessable under section 12B or section 42. The position, therefore, was that losses made in British India could not be reduced by adjusting against them the profits in the Indian States which were exempted under the clause, but the income exempted from the clause had, however, to be included in the assessees total income for the purpose of determining the rate applicable to his taxable income. But so far as a non-resident was concerned the clause had no application, because a non-resident was not chargeable in respect of income accruing or arising without India and not received in India. Now, we come to section 24, sub-sections (1) and (2) with the provisos appended thereto which we have quoted earlier in this judgment. It appears that prior to 1950 profits accruing in the Indian States, later called Part B States, were exempt from tax under section 14(2)(c), unless they were received in or brought into the territories then referred to as British India or were assessable under section 12B or section 42. The first proviso to sub-section (1) as it stood at the relevant time dealt with losses accruing in the quondam Indian States and provided that losses incurred in the Indian States should be set off only against profits accruing in the Indian States. This was a reasonable provision, because an assessee who was not liable to tax in respect of his profits arising in the Indian States could not be allowed to set off his losses incurred in the Indian States against his profits arising in British India. Similarly, clause (a) of the proviso to sub-section (2) enacted that losses incurred in an Indian State could be carried forward and set off only against profits accruing in an Indian State from the same business in a subsequent year. The argument on behalf of the respondent is that so far as a non-resident is concerned, he is not chargeable in respect of income accruing or arising without India and not received in India. Therefore, in his case it is unnecessary to go to the provisos, but section 24 itself has no application because sub-section (1) of section 24 when it refers to loss of profits or gains, has reference to taxable profits or taxable gains and sub-section (2) of section 24 can only be applied in a case where the loss cannot be set off under sub-section (1) because of the absence or inadequacy of profits etc. In other words, the argument is that section 24 is applicable only to such loss of profits and gains which if they had been profits and gains would have been assessable in British India or the taxable territories ; but in the case of non-residents, income accruing or arising without British India or without the taxable territories not being liable to be assessed, the loss of such profits and gains is not contemplated to be set off within the provisions of section 24, sub-sections (1) and (2)Mr. Kolah has pointed out that sub-section (2) of section 24 as also sub-section (1) talk of " any assessee " and he has argued that there is no reason why the provisions of sub-section (2) of section 24 should not be applicable to a non-resident assessee. He has further argued that whatever might have been the effect of the provisos in 1948-49, in 1950-51 Indore became part of the taxable territories and the assessee company became entitled to carry forward the losses up to six years and there is nothing in section 24(2) to prevent him from making the claim. We are unable to accept this argument as correct.. Reading the provisions in section 24 with the provisions in section 4(1)(a) and (c) and section 14(2)(c) it seems clear to us that section 24(1) when it talks of profits or gains has reference to taxable profits or taxable gains ; in other words, it has reference to such profits and gains as would have been assessable in British India or the taxable territories. It has no reference to income accruing or arising without British India or without the taxable territories which were not liable to be assessed in the case of non-residents. We are further of the view that for determining the nature of the losses under consideration in the present appeals, the relevant year was 1948-49, the year in which the losses occurred and the High Court rightly took the view that for the application of sub-section (2) of section 24, the losses must be such losses as could have been set off under sub-section (1) of section 24. We agree with the view expressed by the High Court that the loss amounting to Rs. 5, 19, 590 was not such a loss as could have been set off either under sub-section (1) or sub-section (2) of section 24 7. | 1[ds]Under the Indian Income-tax Act, 1922, assessees are divided into three categories : (a) resident and ordinarily resident, (b) resident but not ordinarily resident, and (c) not resident. We are concerned in the present case with an assessee who in the year in which the loss which is sought to be carried forward occurred was a non-resident. Sub-section (1) of section 4, the material portion of which we have quoted earlier, states that persons who are not resident in India are liable to charge under clause (a) or clause (c) of the said sub-section. They may be taxed under clause (a) on income received or deemed to be received in India even if it accrues elsewhere, or under clause (c) on income which accrues or arises or is deemed to accrue or arise in India even if it is received elsewhere. The liability to tax in respect of income received in India is common to both residents and non-residents and is imposed by the general clause (a). A non-resident, unlike a resident, is not chargeable in respect of income accruing or arising without India and not received in India. Section 14(2)(c), which is now deleted, had great importance when British India was distinct from Indian States, because it exempted income which accrued or was received in the Indian States but was not brought into British India, The deletion of this clause became inevitable upon the merger of the Indian States. This clause which was inserted in 1941 exempted income accruing or arising within the Indian States ; but the exemption did not apply if the income was received or deemed to be received in or was brought into the taxable territories in the previous year by or on behalf of the assessee or if the income was assessable under section 12B or section 42. The position, therefore, was that losses made in British India could not be reduced by adjusting against them the profits in the Indian States which were exempted under the clause, but the income exempted from the clause had, however, to be included in the assessees total income for the purpose of determining the rate applicable to his taxable income. But so far as a non-resident was concerned the clause had no application, because a non-resident was not chargeable in respect of income accruing or arising without India and not received in India. Now, we come to section 24, sub-sections (1) and (2) with the provisos appended thereto which we have quoted earlier in this judgment. It appears that prior to 1950 profits accruing in the Indian States, later called Part B States, were exempt from tax under section 14(2)(c), unless they were received in or brought into the territories then referred to as British India or were assessable under section 12B or section 42. The first proviso to sub-section (1) as it stood at the relevant time dealt with losses accruing in the quondam Indian States and provided that losses incurred in the Indian States should be set off only against profits accruing in the Indian States. This was a reasonable provision, because an assessee who was not liable to tax in respect of his profits arising in the Indian States could not be allowed to set off his losses incurred in the Indian States against his profits arising in British India. Similarly, clause (a) of the proviso to sub-section (2) enacted that losses incurred in an Indian State could be carried forward and set off only against profits accruing in an Indian State from the same business in a subsequent year. The argument on behalf of the respondent is that so far as a non-resident is concerned, he is not chargeable in respect of income accruing or arising without India and not received in India. Therefore, in his case it is unnecessary to go to the provisos, but section 24 itself has no application because sub-section (1) of section 24 when it refers to loss of profits or gains, has reference to taxable profits or taxable gains and sub-section (2) of section 24 can only be applied in a case where the loss cannot be set off under sub-section (1) because of the absence or inadequacy of profits etc. In other words, the argument is that section 24 is applicable only to such loss of profits and gains which if they had been profits and gains would have been assessable in British India or the taxable territories ; but in the case of non-residents, income accruing or arising without British India or without the taxable territories not being liable to be assessed, the loss of such profits and gains is not contemplated to be set off within the provisions of section 24, sub-sections (1) and (2)Mr. Kolah has pointed out that sub-section (2) of section 24 as also sub-section (1) talk of " any assessee " and he has argued that there is no reason why the provisions of sub-section (2) of section 24 should not be applicable to a non-resident assessee. He has further argued that whatever might have been the effect of the provisos in 1948-49, in 1950-51 Indore became part of the taxable territories and the assessee company became entitled to carry forward the losses up to six years and there is nothing in section 24(2) to prevent him from making the claim. We are unable to accept this argument as correct.. Reading the provisions in section 24 with the provisions in section 4(1)(a) and (c) and section 14(2)(c) it seems clear to us that section 24(1) when it talks of profits or gains has reference to taxable profits or taxable gains ; in other words, it has reference to such profits and gains as would have been assessable in British India or the taxable territories. It has no reference to income accruing or arising without British India or without the taxable territories which were not liable to be assessed in the case of non-residents. We are further of the view that for determining the nature of the losses under consideration in the present appeals, the relevant year was 1948-49, the year in which the losses occurred and the High Court rightly took the view that for the application of sub-section (2) of section 24, the losses must be such losses as could have been set off under sub-section (1) of section 24. We agree with the view expressed by the High Court that the loss amounting to Rs. 5, 19, 590 was not such a loss as could have been set off either under sub-section (1) or sub-section (2) of section 24 | 1 | 3,926 | 1,256 | ### 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:
income received or deemed to be received in India even if it accrues elsewhere, or under clause (c) on income which accrues or arises or is deemed to accrue or arise in India even if it is received elsewhere. The liability to tax in respect of income received in India is common to both residents and non-residents and is imposed by the general clause (a). A non-resident, unlike a resident, is not chargeable in respect of income accruing or arising without India and not received in India. Section 14(2)(c), which is now deleted, had great importance when British India was distinct from Indian States, because it exempted income which accrued or was received in the Indian States but was not brought into British India, The deletion of this clause became inevitable upon the merger of the Indian States. This clause which was inserted in 1941 exempted income accruing or arising within the Indian States ; but the exemption did not apply if the income was received or deemed to be received in or was brought into the taxable territories in the previous year by or on behalf of the assessee or if the income was assessable under section 12B or section 42. The position, therefore, was that losses made in British India could not be reduced by adjusting against them the profits in the Indian States which were exempted under the clause, but the income exempted from the clause had, however, to be included in the assessees total income for the purpose of determining the rate applicable to his taxable income. But so far as a non-resident was concerned the clause had no application, because a non-resident was not chargeable in respect of income accruing or arising without India and not received in India. Now, we come to section 24, sub-sections (1) and (2) with the provisos appended thereto which we have quoted earlier in this judgment. It appears that prior to 1950 profits accruing in the Indian States, later called Part B States, were exempt from tax under section 14(2)(c), unless they were received in or brought into the territories then referred to as British India or were assessable under section 12B or section 42. The first proviso to sub-section (1) as it stood at the relevant time dealt with losses accruing in the quondam Indian States and provided that losses incurred in the Indian States should be set off only against profits accruing in the Indian States. This was a reasonable provision, because an assessee who was not liable to tax in respect of his profits arising in the Indian States could not be allowed to set off his losses incurred in the Indian States against his profits arising in British India. Similarly, clause (a) of the proviso to sub-section (2) enacted that losses incurred in an Indian State could be carried forward and set off only against profits accruing in an Indian State from the same business in a subsequent year. The argument on behalf of the respondent is that so far as a non-resident is concerned, he is not chargeable in respect of income accruing or arising without India and not received in India. Therefore, in his case it is unnecessary to go to the provisos, but section 24 itself has no application because sub-section (1) of section 24 when it refers to loss of profits or gains, has reference to taxable profits or taxable gains and sub-section (2) of section 24 can only be applied in a case where the loss cannot be set off under sub-section (1) because of the absence or inadequacy of profits etc. In other words, the argument is that section 24 is applicable only to such loss of profits and gains which if they had been profits and gains would have been assessable in British India or the taxable territories ; but in the case of non-residents, income accruing or arising without British India or without the taxable territories not being liable to be assessed, the loss of such profits and gains is not contemplated to be set off within the provisions of section 24, sub-sections (1) and (2)Mr. Kolah has pointed out that sub-section (2) of section 24 as also sub-section (1) talk of " any assessee " and he has argued that there is no reason why the provisions of sub-section (2) of section 24 should not be applicable to a non-resident assessee. He has further argued that whatever might have been the effect of the provisos in 1948-49, in 1950-51 Indore became part of the taxable territories and the assessee company became entitled to carry forward the losses up to six years and there is nothing in section 24(2) to prevent him from making the claim. We are unable to accept this argument as correct.. Reading the provisions in section 24 with the provisions in section 4(1)(a) and (c) and section 14(2)(c) it seems clear to us that section 24(1) when it talks of profits or gains has reference to taxable profits or taxable gains ; in other words, it has reference to such profits and gains as would have been assessable in British India or the taxable territories. It has no reference to income accruing or arising without British India or without the taxable territories which were not liable to be assessed in the case of non-residents. We are further of the view that for determining the nature of the losses under consideration in the present appeals, the relevant year was 1948-49, the year in which the losses occurred and the High Court rightly took the view that for the application of sub-section (2) of section 24, the losses must be such losses as could have been set off under sub-section (1) of section 24. We agree with the view expressed by the High Court that the loss amounting to Rs. 5, 19, 590 was not such a loss as could have been set off either under sub-section (1) or sub-section (2) of section 24 7.
### Response:
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### Explanation:
on income received or deemed to be received in India even if it accrues elsewhere, or under clause (c) on income which accrues or arises or is deemed to accrue or arise in India even if it is received elsewhere. The liability to tax in respect of income received in India is common to both residents and non-residents and is imposed by the general clause (a). A non-resident, unlike a resident, is not chargeable in respect of income accruing or arising without India and not received in India. Section 14(2)(c), which is now deleted, had great importance when British India was distinct from Indian States, because it exempted income which accrued or was received in the Indian States but was not brought into British India, The deletion of this clause became inevitable upon the merger of the Indian States. This clause which was inserted in 1941 exempted income accruing or arising within the Indian States ; but the exemption did not apply if the income was received or deemed to be received in or was brought into the taxable territories in the previous year by or on behalf of the assessee or if the income was assessable under section 12B or section 42. The position, therefore, was that losses made in British India could not be reduced by adjusting against them the profits in the Indian States which were exempted under the clause, but the income exempted from the clause had, however, to be included in the assessees total income for the purpose of determining the rate applicable to his taxable income. But so far as a non-resident was concerned the clause had no application, because a non-resident was not chargeable in respect of income accruing or arising without India and not received in India. Now, we come to section 24, sub-sections (1) and (2) with the provisos appended thereto which we have quoted earlier in this judgment. It appears that prior to 1950 profits accruing in the Indian States, later called Part B States, were exempt from tax under section 14(2)(c), unless they were received in or brought into the territories then referred to as British India or were assessable under section 12B or section 42. The first proviso to sub-section (1) as it stood at the relevant time dealt with losses accruing in the quondam Indian States and provided that losses incurred in the Indian States should be set off only against profits accruing in the Indian States. This was a reasonable provision, because an assessee who was not liable to tax in respect of his profits arising in the Indian States could not be allowed to set off his losses incurred in the Indian States against his profits arising in British India. Similarly, clause (a) of the proviso to sub-section (2) enacted that losses incurred in an Indian State could be carried forward and set off only against profits accruing in an Indian State from the same business in a subsequent year. The argument on behalf of the respondent is that so far as a non-resident is concerned, he is not chargeable in respect of income accruing or arising without India and not received in India. Therefore, in his case it is unnecessary to go to the provisos, but section 24 itself has no application because sub-section (1) of section 24 when it refers to loss of profits or gains, has reference to taxable profits or taxable gains and sub-section (2) of section 24 can only be applied in a case where the loss cannot be set off under sub-section (1) because of the absence or inadequacy of profits etc. In other words, the argument is that section 24 is applicable only to such loss of profits and gains which if they had been profits and gains would have been assessable in British India or the taxable territories ; but in the case of non-residents, income accruing or arising without British India or without the taxable territories not being liable to be assessed, the loss of such profits and gains is not contemplated to be set off within the provisions of section 24, sub-sections (1) and (2)Mr. Kolah has pointed out that sub-section (2) of section 24 as also sub-section (1) talk of " any assessee " and he has argued that there is no reason why the provisions of sub-section (2) of section 24 should not be applicable to a non-resident assessee. He has further argued that whatever might have been the effect of the provisos in 1948-49, in 1950-51 Indore became part of the taxable territories and the assessee company became entitled to carry forward the losses up to six years and there is nothing in section 24(2) to prevent him from making the claim. We are unable to accept this argument as correct.. Reading the provisions in section 24 with the provisions in section 4(1)(a) and (c) and section 14(2)(c) it seems clear to us that section 24(1) when it talks of profits or gains has reference to taxable profits or taxable gains ; in other words, it has reference to such profits and gains as would have been assessable in British India or the taxable territories. It has no reference to income accruing or arising without British India or without the taxable territories which were not liable to be assessed in the case of non-residents. We are further of the view that for determining the nature of the losses under consideration in the present appeals, the relevant year was 1948-49, the year in which the losses occurred and the High Court rightly took the view that for the application of sub-section (2) of section 24, the losses must be such losses as could have been set off under sub-section (1) of section 24. We agree with the view expressed by the High Court that the loss amounting to Rs. 5, 19, 590 was not such a loss as could have been set off either under sub-section (1) or sub-section (2) of section 24
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